In Re: Ohio Execution Protocol Litigation

Filing 1332

ORDER denying 1311 Motion in Limine as to Nurse Anesthetist Laura Depas. Signed by Magistrate Judge Michael R. Merz on 10/21/2017. (MRM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
PROTOCOL LITIGATION,

Case No. 2:11-cv-1016
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

This Order relates to Plaintiffs
Alva Campbell
and Raymond Tibbetts

Execution Scheduled 11/15/2017
Execution Scheduled 02/13/2018

DECISION AND ORDER DENYING MOTION IN LIMINE AS TO
LAURA DEPAS WITHOUT PREJUDICE

This case is before the Court on the State Defendants’ Motion to Limit the Preliminary
Injunction Testimony of Laura Depas, a certified registered nurse anesthetist who was an
eyewitness to the executions of Ronald Phillips and Gary Otte, the two most-recently executed
Ohio death row inmates. Defendants object not to her fact testimony but to some of what she is
expected to testify to as an expert.
Time is of the essence in deciding the Motion. Ms. Depas was identified as an expert and
her report filed October 12, 2017 (ECF No. 1293). Defendants’ Motion in Limine was filed
October 19, 2017, and Plaintiffs’ Opposition October 20, 2017; Ms. Depas’s testimony is
scheduled to be heard sometime in the week of October 23, 2017.
Federal Rule of Evidence 702 sets forth the requirements for the admissibility of expert
testimony as follows:

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If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.

The Sixth Circuit explicated the application of a case involving mitochondrial DNA
analysis:

The wording of the rule reflects the now-standard inquiry set out in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). Daubert . . . set[s] forth a non-exclusive checklist of
factors for trial courts to use in assessing the reliability of scientific
expert testimony. These include 1) whether the expert's scientific
technique or theory can be, or has been, tested; 2) whether the
technique or theory has been subject to peer review and
publication; 3) the known or potential rate of error of the technique
or theory when applied; 4) the existence and maintenance of
standards and controls; and 5) whether the technique or theory has
been generally accepted in the scientific community. Daubert, 509
U.S. at 592-95; Hardyman v. Norfolk & W. Ry., 243 F.3d 255, 260
(6th Cir. 2001). If the evidence is deemed to be reliable and
relevant, the judge must then determine if the probative value of
the evidence is outweighed by its prejudicial effect. Daubert, 509
U.S. at 595.
United States v. Beverly, 369 F.3d 516 (6th Cir. 2004)(Boggs, J.).
Expert testimony based on scientific research done solely for litigation and neither
subjected to peer review nor published in scientific journals and not accompanied by showing of
methodology on which it is based is not admissible under 702.

Daubert v. Merrell Dow

Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995)(on remand from the Supreme Court);
accord, Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426 (6th Cir. 2007). Numerous
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courts have held Daubert applies to medical evidence, including psychological evidence. See
United States v. Hall, 93 F.3d 1337, 1342-43 (7th Cir. 1996).
Evidence Rule 702 requires the federal courts “to be sure that the person possesses
genuine expertise in a field and that her court testimony ‘adheres to the same standards of
intellectual rigor that are demanded in [her] professional work.’” Tyus v. Urban Search Mgmt.,
102 F.3d 256, 263 (7th Cir. 1996). The ideal way to perform this gatekeeping task is to hold a
Daubert hearing – an evidentiary hearing to elicit facts relevant to the Daubert inquiry.
However, district courts are not obliged to hold an actual hearing to make a Rule 702
determination. Greenwell v. Boatwright, 184 F.3d 490 (6th Cir. 1999). Whether to do so is
committed to the trial court’s discretion. Kumho Tire Co. v. Carmichael, 526 U.S.137, 152
(1999); Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244 (6th Cir. 2001).
A trial judge has broad discretion in admitting or excluding expert evidence which is to
be sustained unless manifestly erroneous. United States v. Demjanjuk, 367 F.3d 623 (6th Cir.
2004), citing United States v. Jones, 107 F.3d 1147, 1151 (6th Cir. 1997). This discretion is
particularly broad in a bench trial or similar evidentiary proceeding, such as a preliminary
injunction hearing. Can-Am Eng’g Co. v. Henderson Glass, Inc., 814 F.2d 253, 255 (6th Cir.
1987). In part this is occasioned by concern that labeling a witness as an “expert” may give that
witness unwarranted credibility with a jury; a judge sitting alone as the trier of fact is presumed
to avoid that unwarranted deference.
However, a trial judge is entitled to a high degree of deference only if the district court
properly understood the pertinent law. Best v. Lowe’s Home Centers, Inc., 563 F.3d 171 (6th Cir.
2009), citing United States v. 2903 Bent Oak Highway, 204 F.3d 658, 665 (6th Cir. 2000).
Hopefully, now instructed by the Sixth Circuit’s en banc opinion in Fears, the undersigned now

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understands the law applicable to determining whether a particular method of lethal injection
execution presents a certain or very likely risk of causing severe pain or needless suffering.
Red flags that caution against certifying an expert include reliance on anecdotal evidence,
improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity.
Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012).
The gatekeeper language of Daubert is applicable to all expert testimony, regardless of
whether it is “scientific” or not. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); United
States v. Jones, 107 F.3d 1147, 1156 (6th Cir. 1997); see also United States v. Thomas, 74 F.3d
676, 681 (6th Cir. 1996), and Berry v. Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994).
During the evidentiary hearing, Plaintiffs will need to lay a proper foundation for any
expert opinions they intend to elicit from Nurse Depas. It seems very unlikely that they will be
able to show she has the necessary qualifications to opine on the validity of the opinions of Dr.
Craig Stevens or Dr. Sergio Bergese, two potential opinions which Defendants seek to exclude
(Motion, ECF No. 1311, PageID 47542). Defendants are also correct that Nurse Depas will have
to “show her work” if she attempts to draw admissible opinions about the timing of the effects
drugs or their pharmacological or pharmacokinetic effects.”

The Court need not consider

“opinion evidence that is connected to existing data only by the ipse dixit of the expert.”
General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997).
However, the appropriate time to apply these limitations is when/if Defendants make
objections to particular testimony of Nurse Depas during the hearing, rather than hypothetically
before the hearing and based only on her expert report. Expert reports are required under Fed. R.
Civ. P. 26 as a matter of pre-trial/hearing disclosure. While conducting a Daubert hearing and
deciding Fed. R. Evid. 702 issues on that basis is useful and particularly appropriate to avoid

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waste of time and confusion in the midst of a jury trial, it is too hypothetical a presentation of the
evidence issues to be useful here.
Accordingly, the Motion in Limine as to CRNA Depas is DENIED without prejudice to
appropriate objection under Fed. R. Evid. 702 when particular opinions are offered during the
hearing.

October 21, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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