Bevan v. Santa Fe County et al
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting 155 Plaintiff's Motion to Exclude Cheryl Wills. Wills' Report (Doc. 110-1) is stricken from the docket sheet. (tah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
AIMEE BEVAN, as Personal
Representative of the Estate of Desiree
Civ. No. 15-0073 KG/SCY
GABRIEL VALENCIA, Youth Development
Administrator, Individually, MATTHEW EDMUNDS,
Corrections Officer, Individually, JOHN ORTEGA,
Corrections Officer, Individually, MOLLY ARCHULETA,
Corrections Nurse, Individually, ST. VINCENT HOSPITAL, and
NATHAN PAUL UNKEFER, M.D.,
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Plaintiff’s Motion to Exclude Cheryl Wills
(Motion to Exclude), filed on April 1, 2016. (Doc. 155). Plaintiff seeks to exclude Cheryl Wills
(Wills), a forensic adolescent psychiatrist, as an expert witness and to strike her “Psychiatric
Expert Report” (Report) (Doc. 110-1). (Doc. 155) at 11. Defendant Nathan Paul Unkefer, M.D.
(Unkefer) filed a response on April 15, 2016; Defendants Gabriel Valencia, Matthew Edmunds,
John Ortega and Molly Archuleta (County Defendants) filed a response on April 29, 2016; and
on May 5, 2016, Defendant St. Vincent Hospital (St. Vincent Hospital) joined in the responses
filed by County Defendants and Unkefer. (Docs. 162, 170, and 175). County Defendants then
filed a notice of errata on May 5, 2016, that included Wills’ Substitute Affidavit.1 (Doc. 173).
Plaintiff filed a reply on May 17, 2016. (Doc. 180).
On April 11, 2018, the Court held a telephonic preliminary hearing to determine whether
to hold a Daubert hearing on the Motion to Exclude. (Docs. 238 and 239). As a result of that
telephonic preliminary hearing, the Court ordered that (1) Plaintiff supplement the record to
clarify the damages she is seeking, and (2) County Defendants supplement the record to include
where and when Wills had previously testified as an expert. (Doc. 240).
On April 17, 2018, Plaintiff filed a “Notice of Damages Sought for the Estate of Desiree
Gonzales” in which Plaintiff specified the following damages:
1. The pain and suffering experienced by Desiree Gonzales between the time of injury
2. The value of Desiree Gonzales’s life apart from her earning capacity, also known as
3. The mitigating or aggravating circumstances attending the wrongful act, neglect or
default pursuant to the New Mexico Wrongful Death Act;
4. Punitive damages, pursuant to 42 U.S.C. § 1983;
5. Attorney fees;
6. Costs; and
7. Pre- and post-judgment interest.
(Doc. 248) at 1. On that same day, County Defendants filed an “Affidavit of Cheryl D. Wills,
M.D.” in which Wills attests to providing expert deposition and/or trial testimony in the area of
forensic adolescent psychiatry in eight civil cases, beginning in July 2010. (Doc. 247) at 6.
Having considered the Motion to Exclude, the accompanying briefing, the argument of
counsel at the April 11, 2018, preliminary hearing, and the supplements filed by Plaintiff and
Wills’ original affidavit, submitted in support of County Defendants’ response, was unsigned.
(Doc. 170-1). County Defendants obtained a signed affidavit, which they filed as a Substitute
Affidavit. (Doc. 173) at 4-7.
“Hedonic damages” are defined as “[d]amages that attempt to compensate for the loss of the
pleasure of being alive.” DAMAGES, Black’s Law Dictionary (10th ed. 2014).
County Defendants, the Court determines that a Daubert hearing on the Motion to Exclude is
unnecessary and that the Motion to Exclude is granted.
1. Wills’ “Psychiatric Expert Report”
Wills bases the Report on her review of Desiree Gonzales’ (Gonzales) psychological and
medical records, her rehabilitation records, her school records, court-related records, state agency
records, and expert reports. (Doc. 110-1) at 1-2. The Report contains a detailed “Case
Summary” setting forth a developmental history for Gonzales, including descriptions of various
family issues, Gonzales’ criminal conduct, and her substance use and abuse. Id. at 3-13.
Wills then lays out her various opinions, which she made “with reasonable medical
certainty.” Id. at 14. Wills opined, in essence, that
(1) Gonzales’ mother physically and emotionally traumatized Gonzales;
(2) abuse and neglect caused Gonzales’ behavior to deteriorate, including problems at
school, criminal conduct, and addiction issues;
(3) when Gonzales’ problems transitioned from parental neglect to “severe addiction and
delinquency,” Gonzales’ “prognosis, educational potential, employment potential and life
expectancy declined significantly;”
(4) Gonzales’ biological father “did very little to improve his capacity to deal with
[Gonzales’] behavior when it became disruptive;”
(5) if Gonzales’ biological father had alerted law enforcement that Gonzales had
contacted him, law enforcement could have detained Gonzales on an outstanding warrant
before she could overdose on heroin for the last time on May 6, 2014;
(6) Gonzales’ biological father profited from Gonzales’ death by keeping for himself
37% of the funds raised for Gonzales’ funeral and a youth organization; and
(7) had Gonzales lived, “her lifetime earnings potential would have been reduced
because” of lack of education, likelihood of future incarceration, lack of responsibility,
and addiction to heroin.
Id. at 13-17.
2. Wills’ Substitute Affidavit
Wills attests in her Substitute Affidavit that her opinions are “based on training,
experience and knowledge that is generally accepted in the medical community.” (Doc. 173) at
5, ¶ 3. She further states that her “opinions are based on data ascertained in a line of inquiry that
is referred to as a psychological autopsy.” Id. at ¶ 4. A psychological autopsy considers a
decedent’s “[d]evelopmental history, medical history, educational history, legal history, family
history, social history and any other relevant factors” to investigate “events that preceded his or
her death.” Id. at ¶¶ 4-5. Neither the term “psychological autopsy” nor a description of a
psychological autopsy appears in the Report.
Wills further notes that she has “an extensive background in creating and reviewing
psychological and medical records such as those listed in [her] report.” Id. at 6, ¶ 9. Because
interpreting psychological and medical records “is likely outside the knowledge of most jurors,”
Wills attests that her “comprehensive developmental history” of Gonzales would be “helpful to
the jury….” Id. Wills also attests that her Report and testimony would help a jury understand
how Gonzales “would have had a poor prognosis, had she lived.” Id. at ¶ 10.
Plaintiff seeks to exclude Wills as an expert witness and to strike her Report from the
record for two reasons. First, Plaintiff contends that Wills’ testimony and Report do not meet the
Fed. R. Evid. 702 Daubert standard. Second, Plaintiff argues that the Court should exclude
Wills’ testimony and Report under Fed. R. Evid. 403 because they are more unfairly prejudicial
than probative. Defendants oppose the Motion to Exclude in its entirety. Before addressing
these substantive arguments, the Court must first decide if it will hold a Daubert hearing on the
Motion to Exclude.
1. Whether to Hold a Daubert Hearing
While courts commonly hold Daubert hearings to determine whether to admit expert
testimony under Rule 702, such a hearing is not required. See United States v. Charley, 189 F.3d
1251, 1266 (10th Cir. 1999) (stating that district court has “great latitude” in “deciding whether
to hold a formal hearing”). Having considered the Motion to Exclude, the briefing, the argument
of counsel at the April 11, 2018, preliminary hearing, and the supplements submitted by Plaintiff
and County Defendants, the Court concludes that it is unnecessary under the circumstances
presented here to conduct a Daubert hearing on the Motion to Exclude.
2. Rule 702: Whether Wills’ Testimony and Report Meet Rule 702 Daubert
Plaintiff argues first that the Court should exclude Wills’ testimony and Report under
Rule 702 because (1) Wills failed to use a reliable methodology, and (2) her opinions will not be
helpful to a jury. Rule 702 allows a qualified expert to testify as to an expert opinion if the
expert’s “testimony is the product of reliable principles and methods,” “the expert has reliably
applied the principles and methods to the facts of the case,” and the expert’s “knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue….” Rule 702 (a)
and (c). The parties do not dispute that Wills is a qualified forensic adolescent psychiatrist.
a. Reliability of Methodology
(1) Methodology Described in the Report
Plaintiff argues first that the Report does not contain any methodology, let alone a
reliable methodology. To determine whether an expert’s testimony is reliable, the “court must
‘assess the reasoning and methodology underlying the expert’s opinion ....’” United States v.
Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006) (citation omitted). Typically, to consider
whether a scientific opinion satisfies the reliability requirement under Daubert and Rule 702, the
Court considers the following nonexclusive factors:
(1) whether the theory at issue can be and has been tested; (2) whether the theory has
been subjected to peer review and publication; (3) whether there is a known or potential
rate of error and whether there are standards controlling the methodology's operation; and
(4) whether the theory has been accepted in the relevant scientific community.
However, in the area of soft science, indicia of reliability can include “professional
experience, education, training, and observations” rather than “research, theories and
opinions….” United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006). Even so, “[t]he
expert must explain the methodologies and principles supporting the opinion.” Minix v.
Canarecci, 597 F.3d 824, 835 (7th Cir. 2010). As a District Judge in Kansas explained,
Expert opinions may be based on education, training and experience, combined with
reliance on reports, depositions or other information related to the particular
circumstances, but an expert must explain factually why and how he reached his
conclusions. Hilt v. SFC Inc., 170 F.R.D. 182, 185 (D.Kan.1997). The proponent of
expert testimony must show “a grounding in the methods and procedures of science
which must be based on actual knowledge and not subjective belief or unaccepted
speculation.” Mitchell, 165 F.3d at 780.
Mehus v. Emporia State Univ., 222 F.R.D. 455, 461 (D. Kan. 2004).
In this case, Wills has demonstrated that she has experience, education, and training as a
forensic adolescent psychiatrist. See (Doc. 110-11) at 3-15; (Doc. 247) at 1-2. Her
“methodology,” as revealed in the Report, consisted of first reviewing court-related documents,
mental health and rehabilitation records, state agency records, school records, expert reports, and
medical reports. Wills then used the information in those documents to compile a chronological
developmental history for Gonzales. Finally, Wills laid out her opinions, which she supported
with characterizations of the various relationships and events in Gonzales’ life. Nowhere in her
Report does Wills explain her methodology or its reliability, or how her expertise led to her
Nonetheless, Defendants cite cases wherein an evaluation of medical records constitutes a
reliable methodology. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 762 (3d Cir. 1994)
(stating “evaluation of the patient’s medical records, like performance of a physical
examination, is a reliable method of concluding that a patient is ill even in the absence of a
physical examination”); Richard v. Hinshaw, 2013 WL 6632122, at *1 (D. Kan.) (finding
psychiatrists’ review of “medical and other records” was “straightforward” methodology since
“they used their essentially unchallenged training and experience to evaluate the facts taken from
documents and deposition testimony”); P.S. ex rel. Nelson v. The Farm, Inc., 658 F.Supp. 2d
1281, (D. Kan. 2009) (ruling that forensic psychiatrist who provided report based on review of
treatment records could give expert testimony). A review of medical records and even other
records may well constitute a reliable methodology if the expert explains in the report how that
methodology is reliable. That is not the case here. Instead, Wills attempts to remedy this
deficiency in her Report by submitting the Substitute Affidavit. Plaintiff, however, argues that
the Court should disregard the Substitute Affidavit because it is both untimely and presents a
methodology that does not apply to the facts of this case.
(2) Methodology Described in the Substitute Affidavit
(a) Timeliness of the Substitute Affidavit
Plaintiff observes that County Defendants filed the Substitute Affidavit after the expert
reports deadline of October 2, 2015, expired. See (Doc. 66). Plaintiff contends that the
Substitute Affidavit and its explanation of Wills’ “methodology at this stage of the litigation
renders her [Substitute] Affidavit inadmissible.” (Doc. 180) at 5. Plaintiff specifically argues
that the Substitute Affidavit is in reality an untimely expert report that attempts to cure the
Report’s deficiencies, i.e., the Report’s failure to describe and explain a methodology. Plaintiff
cites In re Cent. European Indus. Dev. Co. to support her argument. 427 B.R. 149 (Bankr. N.D.
The court in In re Cent. European Indus. Dev. Co. addressed the question of whether a
declaration which tries to cure deficiencies in an initial expert report should be treated as a Fed.
R. Civ. P. 26(e)(1) supplement to an initial report or as a subsequent untimely expert report. Id.
(observing that if declaration is expert report then “filing an undisclosed expert report long after
the deadline is an improper attempt to circumvent the expert discovery schedule established by
this court”). The court explained,
If the Declaration is viewed as a “supplement” setting forth information, reasoning and
opinions in order to cure that part of her Report's deficiencies, Rule 26 required such
things to be disclosed in her critical initial Report. “The purpose of ... supplementary
disclosures is just that—... to supplement. These disclosures are not intended to provide
an extension of the deadline by which a party must deliver the lion's share of its expert
As another court explained, supplementation under Rule 26(e)(1) “is intended to provide
parties an opportunity to correct mistakes and oversights, not to include new examples and
illustrations that could have been included in an original expert report.” Eugene Baratto,
Textures, LLC v. Brushstrokes Fine Art, Inc., 701 F. Supp. 2d 1068, 1071 (W.D. Wis. 2010). A
District Judge in Kansas stated,
A supplemental expert report may be excluded under Rule 37(c) [failure to disclose
expert and provide expert report] if it … seeks to strengthen an opinion expressed in the
original report. Rule 26(e) may not be used to provide an extension of the expert report
deadline or sandbag one’s opponent with issues that should have [been] included in the
Spirit Aerosystems, Inc. v. SPS Techs., LLC, 2013 WL 6196314, at *7 (D. Kan.).
Having reviewed the Substitute Affidavit, the Court determines that it goes beyond
correcting a mistake or oversight, or merely supplements the Report. Instead, the Substitute
Affidavit sets forth Wills’ methodology and reasoning in an effort to strengthen the Report and
cure any deficiencies in the Report. Wills could have stated in the original Report that she was
conducting a psychological autopsy and how a psychological autopsy is appropriate in this case.
Had that information been included in the Report, Plaintiff could have deposed Wills about the
applicability of a psychological autopsy to the facts here. In that respect, the Substitute Affidavit
unfairly prejudiced Plaintiff’s ability to challenge Wills’ purported methodology. For these
reasons, the Court will disregard the Substitute Affidavit as an untimely expert report.
(b) Psychological Autopsy
Assuming that the Substitute Affidavit is a timely supplementation of the Report,
Plaintiff, nonetheless, takes issue with Wills’ use of a “psychological autopsy” in this case.
Plaintiff correctly notes that the cases cited by County Defendants to argue that medical and
legal communities accept a psychological autopsy as a valid methodology relating to suicides,
which is not the situation here.
For instance, the court in Shipley v. Forest Labs., Inc. noted, “This methodology involves
a post-mortem risk assessment in which the expert examines the decedent's medical records and
the other relevant evidence to ‘rule in’ and then ‘rule out’ various factors that may have
contributed to the suicide.” 2015 WL 4199739, at *6 (D. Utah) (emphasis added). Also, in
Estates of Tobin ex rel. Tobin v. Smithkline Beecham Pharm, the court observed that “[a]
psychological autopsy is a process by which the last days and hours of an individual’s life are
psychologically analyzed and reconstructed by interviewing persons who interacted with the
decedent shortly before his or her death.” 2001 WL 36102161, at *8 (D. Wyo.). The court
further observed “that a psychological autopsy is accepted in the fields of psychiatry and
suicidology, and is the ‘most scientifically rigorous’ means to determine factors which
contributed to a person’s completed suicide.” Id. (emphasis added). A psychological autopsy is
not applicable to the facts in this case, therefore the Court does not accept that particular
methodology as reliable under the circumstances presented here.
(3) Conclusion Regarding Reliability
Although Wills is a qualified forensic adolescent psychiatrist, she fails to explain in her
Report the methodology she used or how her expertise as a forensic adolescent psychiatrist
makes her opinions reliable. Moreover, Wills’ later attempt to provide that explanation in her
Substitute Affidavit fails because that affidavit is actually an untimely expert report and the
Substitute Affidavit describes a methodology that does not apply to the facts in this case. The
Court, therefore, concludes that Wills’ testimony and Report fail to meet the reliability
requirement under Rule 702 and Daubert, and, for that reason, the Motion to Exclude should be
b. Helpfulness to the Trier of Fact
Assuming arguendo that Wills’ testimony and Report meet the reliability requirement
under Rule 702, Wills’ testimony and Report must also meet the Rule 702 requirement that the
testimony “help the trier of fact to understand the evidence or to determine a fact in issue….”
Rule 702(a). In fact, “[t]he ‘touchstone’ of admissibility of expert testimony is its helpfulness to
the trier of fact.” Wilson v. Muckala, 303 F.3d 1207, 1219 (10th Cir. 2002). Defendants argue
that Wills’ testimony will help the jury understand Plaintiff’s damages, a contributory negligence
defense, and a comparative fault defense. Defendants also argue that Wills’ testimony is
necessary for impeachment purposes.
(1) Whether Wills’ Testimony Will Help the Jury Understand Plaintiff’s
Plaintiff argues that Wills’ economic-based opinions are not relevant to the noneconomic
damages Plaintiff seeks. Plaintiff further argues that Wills’ testimony concerning Gonzales’
medical and mental health records is not helpful to a jury on the issue of damages because a jury
could, without expert testimony, determine from the evidence “that [Gonzales] and her parents
had troubled lives.” (Doc. 155) at 7. Defendants assert that Wills’ testimony regarding
Gonzales’ medical and mental health records is relevant to the issue of noneconomic damages
and that Wills’ testimony will assist a jury by interpreting those technical records.
Indeed, the relevance of an expert’s testimony is a factor a court considers in evaluating
whether that expert testimony will assist the trier of fact. Rodriguez-Felix, 450 F.3d at 1123
(outlining non-exclusive factors for deciding if expert testimony will assist trier of fact including
“whether the testimony is relevant...”). The Court agrees with Plaintiff that Wills’ testimony
regarding Gonzales’ poor economic prospects is not relevant to Plaintiff’s noneconomic damages
consisting of pain and suffering, the value of Gonzales’ life apart from her earning capacity
(hedonic damages), and “mitigating or aggravating circumstances attending the wrongful act,
neglect or default pursuant to the New Mexico Wrongful Death Act.” See (Doc. 248) at 1.
County Defendants, on the other hand, assert that Gonzales’ medical and mental health
background, as summarized and described by Wills, is relevant to noneconomic damages like
loss of enjoyment of life, i.e., hedonic damages. In point of fact, this Court has held that a
deceased’s medical history, including mental health history, as well as past substance and
domestic abuse, are relevant to loss of enjoyment of life and value of life damages. BNSF Ry.
Co. v. Lafarge Sw., Inc., 2009 WL 9144601, at *1–5 (D.N.M.). Additionally, expert testimony
on those subjects assists the jury in understanding the deceased’s health, habits, and life
expectancy, which “provide[s] the jury a fuller understanding of [the deceased’s] life.” Id. at *5.
See also Bemben v. Hunt, 1995 WL 27223, at *3 (N.D. Ill.) (finding in 42 U.S.C. § 1983 case
that “[e]vidence of Plaintiff’s mental and physical condition before, during and after the incident
is relevant to the issue of causation of damages.”). Accordingly, Gonzales’ medical and mental
health background is relevant to the noneconomic damages Plaintiff seeks in this case.
Even if expert evidence is relevant to a case, the Tenth Circuit has stated that “[w]hen the
normal experiences and qualifications of laymen jurors are sufficient for them to draw a proper
conclusion from given facts and circumstances, an expert witness is not necessary and is
improper.” Wilson, 303 F.3d at 1219 (quoting Frase v. Henry, 444 F.2d 1228, 1231 (10th
Cir.1971)). Moreover, expert testimony that is needlessly cumulative of lay witness testimony
does not assist the trier of fact and a court, thus, may exclude that testimony for that reason. See
Schwartz v. Caravan Trucking, L.L.C., 2011 WL 703925, at *3 (E.D.N.Y. Feb. 17, 2011) (where
expert testimony is “needlessly cumulative of lay witness testimony, the testimony would not
assist the trier of fact and may be excluded”) (citing Wills v. Amerada Hess Corp., 379 F.3d 32,
46 (2d Cir. 2004)); Wellman v. Norfolk & W. Ry. Co., 98 F. Supp. 2d 919, 925 (S.D. Ohio 2000)
(“witness may not give expert opinions which simply verify issues of fact about which lay
witnesses will testify[.]”).
Here, a jury could properly determine from its own experiences and qualifications, and
from the facts and circumstances presented in lay testimony and lay evidence, what life
experiences, both positive and negative, Gonzales experienced prior to her death. Accordingly,
Wills’ testimony regarding medical and mental health records will be cumulative of that lay
testimony and lay evidence. Therefore, Wills’ testimony will not assist the jury in understanding
evidence relevant to hedonic damages or in determining a factual issue concerning hedonic
Defendant Unkefer, however, cites United States v. Hadley for the proposition that a
child psychiatrist assists the trier of fact by testifying “about general behavior characteristics that
may be exhibited in children who have been sexually abused….” 918 F.2d 848, 852 (9th Cir.
1990). In that case, the child psychiatrist’s “testimony helped to explain the testimony of the
abused children” where the issue of the children’s credibility commonly arises. Id. at 852-53.
Unkefer further cites Bailey v. Pacheco in which the court found that expert testimony on the
“behavior of abused and neglected children” would assist the trier of fact. Magistrate Judge’s
Proposed Findings and Recommended Disposition (Doc. 308) at 5, Civ. No. 96-959 LH/DJS
(D.N.M. 1999). The expert in Bailey was expected to testify about the appropriateness of foster
parent care of a child with “extensive physical and psychological ailments….” Id. at 2-3. The
Court finds these two cases factually distinct from this one and, therefore, of little or no
persuasive value to the case at hand.
Finally, Wills’ testimony associated with the actions by Gonzales’ biological father just
prior and after Gonzales’ death are not relevant to any damages Gonzales suffered at the hands of
Defendants. In addition, the opinions based on the actions of Gonzales’ biological father do not
rely on the interpretation of any specialized information. Wills’ testimony as to those actions
will not assist the jury in any way.
(2) Whether Wills’ Testimony Will Help the Jury Understand a
Contributory Negligence Defense
County Defendants further argue that Gonzales’ developmental history is relevant to the
issue of contributory negligence by Gonzales. (Doc. 170) at 15 (“These background facts
directly relate to her contributory negligence and her activities on the day in question….”).
Contributory negligence is not an available defense in the Section 1983 context. See, e.g., Hays
v. Jefferson Cty., Ky., 668 F.2d 869, 875 (6th Cir. 1982) (In discussing Section 1983 action,
Sixth Circuit stated, “Contributory negligence has never been a defense to intentional tortious
conduct.”); Creamer v. Rooks Cty., Kan., 2013 WL 5406429, at *2 (D. Kan.) (noting that claim
of contributory negligence is inappropriate in Section 1983 context because “[n]egligence …
does not suffice to support a § 1983 claim”). Also, “[i]n New Mexico, the common law
doctrines of contributory negligence and joint and several liability have been replaced with a
system of pure comparative negligence and, with respect to concurrent tortfeasors, several
liability.” Lewis ex rel. Lewis v. Samson, 2001-NMSC-035, ¶ 32, 131 N.M. 317. Gonzales’
developmental history, therefore, is not relevant to any contributory negligence defense and will
not assist the jury in that respect.
(3) Whether Wills’ Testimony Will Help the Jury Understand a
Comparative Fault Defense
Plaintiff argues that any attempt to use Wills’ testimony to make a comparative fault
determination based upon the conduct of Gonzales’ parents and Gonzales herself, is unfounded.
To begin with, it is well-established that comparative fault does not apply in the Section 1983
context. Quezada v. Cty. of Bernalillo, 944 F.2d 710, 721 (10th Cir. 1991). Thus, comparative
fault would not apply with respect to the Section 1983 claims against County Defendants.
Nonetheless, County Defendants contend that they, St. Vincent’s Hospital, and Unkefer
“have all raised comparative negligence defenses that are still in play” with respect to the state
negligence claims against Unkefer and St. Vincent Hospital. (Doc. 170) at 15. In that context,
County Defendants assert that Wills’ testimony is relevant to any comparative negligence as
between Defendants, Gonzales, and her parents. County Defendants, however, do not cite any
legal authority to support this assertion. Plaintiff, on the other hand, contends that any
comparative negligence should apply between Defendants, and not include Gonzales or her
With respect to including Gonzales in a comparative fault analysis, cases show that
“[p]re-treatment fault of the patient that caused the injury or condition treated by the physician, is
logically irrelevant. The physician undertakes to treat the plaintiff as she is.” Dan B. Dobbs,
Paul T. Hayden and Ellen M. Bublick, The Law of Torts § 314 (2d ed.). The Tenth Circuit also
acknowledged the “basic” tenet
that a professional holding himself out to serve clients or patients is liable for his
negligent performance of duties undertaken and may not be relieved of such liability by
his clients’ or patients’ actions in causing or getting involved in the very conditions
which the professional was employed and undertook to treat or remedy. Otherwise the
professional would not be held responsible for performing the very duties he assumed.
Steiner Corp. v. Johnson & Higgins of California, 135 F.3d 684, 688 (10th Cir.), as amended on
denial of reh'g (10th Cir. 1998). The Tenth Circuit further acknowledged that this tenet applies
to physicians. Id. n. 2 (citing Jensen v. Archbishop Bergan Mercy Hospital, 236 Neb. 1, 459
N.W.2d 178 (1990); Cheek v. Domingo, 628 F.Supp. 149, 151–52 (D.Vi.1986); Ostrowski v.
Azzara, 111 N.J. 429, 545 A.2d 148, 155–56 (1988); and Sendejar v. Alice Physicians &
Surgeons Hospital, 555 S.W.2d 879, 885 (Tex.Civ.App.1977, writ ref'd n.r.e.)). Consequently,
any testimony by Wills regarding Gonzales’ fault in causing her drug overdose is not relevant to
a comparative negligence analysis and, thus, of no assistance to a jury in that regard.
Regarding Gonzales’ parents, County Defendants seem to suggest that the parents are
original or initial tortfeasors, i.e., that their negligent actions (as described by Wills) caused
Gonzales to overdose, while Defendants are alleged successive tortfeasors whose actions
purportedly enhanced the original injury, the overdose. “In an enhanced injury case, a jury does
not compare the negligence of the tortfeasors for the enhanced injury, but the plaintiff must still
prove that the physician’s negligence proximately caused an enhancement of the initial harm
suffered at the hands of the original tortfeasor.” Lewis ex rel. Lewis v. Samson, 2001-NMSC035, ¶ 35, 131 N.M. 317. “[A] physician accused of subsequent medical negligence may rebut
the plaintiff’s evidence of causation through evidence of the initial tortfeasor’s responsibility for
the entire harm.” Id. at ¶ 37. Accordingly, Wills’ description of the actions of Gonzales’ parents
is not relevant to a comparative negligence analysis, but Wills’ description of those actions is
relevant to the causation issue. Even so, as the Court noted above, a jury, relying on its
experiences and qualifications, does not need the assistance of an expert, like Wills, to consider
lay testimony and lay evidence regarding Gonzales’ life experiences, including the actions of her
parents. Such expert testimony will only be cumulative of that lay testimony and lay evidence.
Hence, Wills’ testimony will not help the jury to understand a comparative fault defense or
(4) Whether Wills’ Testimony is Necessary for Impeachment Purposes
County Defendants also contend that Wills’ testimony is necessary for possible
impeachment purposes. Specifically, County Defendants assert that “Wills’ testimony may also
be offered for purposes of impeachment to the extent the plaintiff attempts to introduce
testimony contrary to the facts and conditions reflected in Ms. Gonzales’s various developmental
records.” (Doc. 170) at 3. Plaintiff argues, on the other hand, that “third-hand knowledge cannot
be used to impeach witnesses….” (Doc. 180) at 7 n.2. “[A] ‘third party’s characterization’ of a
witness’s statement does not constitute a prior statement of that witness unless the witness has
subscribed to that characterization.” United States v. Almonte, 956 F.2d 27, 29 (2d Cir. 1992)
(citation omitted). Moreover, Fed. R. Evid. 613 (prior inconsistent statements) does not apply to
evidence of inconsistent conduct. Advisory Committee Note, Rule 613. Rule 613 only applies
to prior inconsistent “statements.” Considering these limitations on a third-party’s ability to
present prior inconsistent statements or conduct, and the availability of developmental records
relied on by Wills, Wills’ testimony is not necessary for the potential impeachment purposes
County Defendants describe.
(5) Conclusion Regarding Helpfulness to the Jury
Wills’ opinions on economic damages are not relevant to the noneconomic damages
Plaintiff seeks nor are the opinions relevant to any contributory negligence or comparative fault
defenses. While Wills’ testimony may be relevant to Plaintiff’s noneconomic damages and to
causation, Wills’ testimony, nonetheless, will not be helpful to the jury. A jury can rely on its
own experiences and qualifications as well as lay testimony and lay evidence to understand how
Gonzales’ life events, including her parents’ actions, relate to damages and causation.
Additionally, Defendants have not convinced the Court that Wills’ testimony provides the sole
evidence available for potential impeachment purposes. Since “[t]he ‘touchstone’ of
admissibility of expert testimony is its helpfulness to the trier of fact,” the lack of helpfulness
here mandates that the Court grant the Motion to Exclude under Rule 702. Wilson, 303 F.3d at
3. Rule 403: Whether Wills’ Testimony Would be More Unfairly Prejudicial than
Plaintiff further argues that the Court should exclude Wills’ testimony and Report under
Rule 403. Rule 403 allows a court to “exclude evidence if its probative value is substantially
outweighed by a danger of … unfair prejudice….” The Tenth Circuit has described “Unfair
prejudice,” as used in Rule 403, in various ways. The Tenth Circuit stated in Phillips v. Hillcrest
Medical Center that
ordinary prejudice alone is insufficient to exclude relevant evidence. The prejudice must
be unfair, such that we may conclude the jurors made their decision based not upon the
evidence presented but upon their confusion, passion, or emotion.
244 F.3d 790, 800 (10th Cir. 2001). Additionally, “a trial court should consider ‘[t]he
availability of other means of proof’ as an appropriate factor reaching a conclusion whether to
exclude evidence based on unfair prejudice.” Stump v. Gates, 211 F.3d 527, 538 (10th Cir.
2000). Other considerations include that the excluded evidence was highly probative, the
“evidence was very limited in the context of the whole trial, and introduction of the evidence was
followed by the trial court’s limiting instruction to the jury.” United States v. Record, 873 F.2d
1363, 1375–76 (10th Cir. 1989).
Moreover, exclusion of evidence under Rule 403 “is an extraordinary remedy and should
be used sparingly.” United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010). In fact, “[i]n
performing the 403 balancing, the court should ‘give the evidence its maximum reasonable
probative force and its minimum reasonable prejudicial value.’” Deters v. Equifax Credit Info.
Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000) (citation omitted).
Having reviewed Wills’ Report, the Court determines that although Rule 403 is an
extraordinary remedy, and a limiting jury instruction could be given, Wills’ testimony, to the
extent it is probative, is unfairly prejudicial. Her testimony about Gonzales’ very troubled
upbringing, which includes much more than mere drug use, could easily influence a jury’s
decision on the basis of passion or emotion. The Court has no doubt that admissible, probative
evidence is available to provide the jury with an overall sense of Gonzales’ life. Additionally,
considering the extensive developmental history described in the Report, Wills’ testimony would
probably not be “very limited in the context of the whole trial….” Record, 873 F.2d at 1375.
For all of these reasons, the Court also concludes that Wills’ testimony and Report should be
excluded under Rule 403 as being more unfairly prejudicial than probative.
IT IS ORDERED that
1. Plaintiff’s Motion to Exclude Cheryl Wills (Doc. 155) is granted;
2. Wills is not allowed to testify as an expert at the trial in this matter; and
3. Wills’ Report (Doc. 110-1) is stricken from the docket sheet.
UNITED STATES DISTRICT JUDGE
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