Dillard v. Smith
MEMORANDUM OPINION. Signed by Judge Thomas T. Cullen on 9/7/2021. (Opinion mailed to Pro Se Party via US Mail)(tvt)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CLEON ELROY DILLARD,
Civil Action No. 7:20-cv-00151
Hon. Thomas T. Cullen
United States District Judge
Cleon Elroy Dillard, a prisoner proceeding pro se, filed this civil action under 42 U.S.C.
§ 1983 against Rodney Smith, a deputy at the Martinsville City Jail. Dillard claims that Smith
used excessive force against him while he was being booked into the Jail on September 7,
2019. In particular, Dillard alleges that Smith slammed his head into a wall, causing severe
head pain and dental trauma. But Dillard also contends that on October 23, 2019, more than
six weeks later, he was taken to a hospital for seizure-like symptoms and underwent surgery
for a subdural hematoma. According to Dillard, these serious, but later-manifesting, medical
conditions were also caused by Smith’s excessive use of force.
The case is scheduled for a jury trial on September 9, 2021. In advance of trial, Dillard
and Smith filed motions in limine seeking to exclude certain types of testimony regarding the
nature and extent of Dillard’s alleged injuries. Specifically, Smith has moved to preclude
Dillard from testifying or presenting any evidence regarding the symptoms and conditions for
which Dillard was hospitalized and treated in October 2019. (See ECF No. 65.) Dillard, in turn,
has moved to exclude the opinions of Smith’s medical expert, Dr. Richard L. Wilson, Jr., a
physician in Blacksburg, Virginia. (See ECF No. 59). The court heard oral argument on these
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and other motions during a pretrial conference on August 31, 2021. For the reasons explained
below, the motions in limine will be granted in part. 1
Smith’s Motion in Limine
Smith seeks to preclude Dillard from offering testimony or other evidence regarding
the symptoms and conditions for which Dillard was hospitalized in October 2019, including
the subdural hematoma that required surgery. Smith argues that expert testimony is necessary
to establish a causal connection between these particular medical issues and the alleged use of
force. Smith further emphasizes that Dillard did not identify any expert witnesses during
In a § 1983 action, the plaintiff must prove that the defendant’s conduct was the
proximate cause of a claimed injury. Kane v. Lewis, 604 F. App’x 229, 234 (4th Cir. 2015). “For
damages to be proximately caused by a constitutional tort, a plaintiff must show that, except
for that constitutional tort, such injuries and damages would not have occurred.” McCaskill v.
Yankalunas, 245 F. App’x 274, 279 (4th Cir. 2007) (quoting Jackson v. Sauls, 206 F.3d 1156, 1168
(11th Cir. 2000)).
It is well-settled that expert testimony is “not always necessary to establish causation”
in cases involving the alleged use of excessive force. Zartner v. Miller, 760 F. App’x 558, 563
(10th Cir. 2019); see also Parson v. Miles, No. 4:17-cv-00708, 2020 WL 58287, at *6 n.9 (D.S.C.
Jan. 6, 2020) (noting that the “there is no ‘blanket rule’ requiring expert testimony in excessive
The pending motions in limine also seek to exclude other types of evidence. The court will issue a separate
order addressing the remaining issues raised in the motions.
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force cases”) (quoting Kopf v. Skyrm, 993 F.2d 374, 378 (4th Cir. 1993)). Courts have
consistently held that “[n]o expert testimony is required to assist jurors in determining the
cause of injuries that are within their common experiences or observations.” Hendrickson v.
Cooper, 589 F.3d 887, 892 (7th Cir. 2009). For instance, “a causal connection between an
altercation and an injury may be inferred in cases in which a visible injury or a sudden onset
of an injury occurs.” Zeismer v. Hagen, 785 F.3d 1233, 1238 (8th Cir. 2015); see also Zartner, 760
F. App’x at 563 (noting that “expert testimony might be unnecessary to find causation when
a brawl leads to a broken nose or black eye”). Additionally, a plaintiff may rely on his own
testimony to establish that he experienced pain as a result of the alleged use of excessive force.
See Hendrickson, 589 F.3d at 892 (rejecting the defendant’s argument that the plaintiff was
required to support his claims of increased back pain with expert medical evidence and
concluding that the plaintiff’s own testimony that the defendant “beat him up and it hurt really
bad” was sufficient to prevail on a claim of excessive force); Zeismer, 785 F.3d at 1239 (holding
that neck pain reportedly experienced by the plaintiff shortly after an alleged altercation with
an officer was “within the range of common experience” and did not require expert testimony)
(internal quotation marks omitted).
On the other hand, proof of causation generally must be established by expert
testimony when an injury is sophisticated or complex. Zeismer, 785 F.3d at 1239. Likewise,
“when an injury lacks an obvious origin and multiple causes are possible, expert medical
testimony is necessary to prove causation between a use of force and an injury.” Zartner, 760
F. App’x at 563; see also Barnes v. Anderson, 202 F.3d 150, 160 (2d Cir. 1999) (holding that the
plaintiffs were required to produce expert medical evidence of causation in order to recover
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for a miscarriage under § 1983, given the uncertain timing of the pregnancy, the unclear nature
of the physical contact challenged in the lawsuit, and the fact that the female plaintiff was
physically assaulted by other individuals after the incident at issue).
In this case, Dillard claims that he suffered four types of injuries as a result of having
his head slammed into a wall on September 7, 2019: (1) headaches or head pain; (2) dental
trauma in the form of a chipped or lost tooth; (3) seizure-like symptoms; and (4) a subdural
hematoma. The court concludes that expert testimony is required to establish that the subdural
hematoma and associated seizure-like symptoms were caused by the alleged use of excessive
force. Unlike the first two types of injuries, a subdural hematoma and seizure-like activity are
complex medical issues that do not fall within the range of a jury’s common knowledge and
experience. See, e.g., Parker v. United States, 475 F. Supp. 2d 594, 598 (E.D. Va. 2007) (concluding
that a factfinder would not know what symptoms suggest the possible existence of a subdural
hematoma, whether or when the plaintiff exhibited such symptoms, or when the plaintiff’s
subdural hematoma developed). Additionally, it is undisputed that Dillard was not hospitalized
for seizure-like symptoms and diagnosed with a subdural hematoma until October 23, 2019,
and that Dillard’s medical records indicate that he was involved in another altercation several
days before he presented to the hospital. Given the complex nature of these particular medical
issues, the significant time lapse between the alleged use of force and the onset of seizure-like
symptoms, and the existence of other potential causes of the subdural hematoma, the court
agrees with Smith that expert testimony is necessary to establish a causal link between the
alleged use of force on September 7, 2019, and the symptoms and conditions for which Dillard
received treatment the following month.
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Dillard did not disclose any experts within the timeframe established by the court’s
pretrial order. (See ECF No. 51.) During the pretrial conference, Dillard confirmed that he did
not have any experts to disclose, and that he did not intend to present any expert medical
testimony at trial. In the absence of such testimony, Dillard cannot carry his burden of proving
that the subdural hematoma and associated seizure-like symptoms were caused by the alleged
use of excessive force. Accordingly, Smith’s motion in limine will be granted in part, and Dillard
will not be allowed to present any evidence or argument at trial pertaining to the medical issues
for which he received treatment in October 2019.
As the court explained at the pretrial conference, Dillard will be allowed to testify as to
his own physical condition immediately following and shortly after the alleged use of force on
September 7, 2019. Specifically, Dillard may testify as to the pain, headaches, and dental trauma
that he claims to have experienced. See, e.g., Hrichak v. Pion, 498 F. Supp. 2d 380, 382 (D. Me.
2007) (“A lay witness . . . may testify regarding subjective symptoms, including, but not limited
to, pain from or the existence of bruises, cuts, and abrasions resulting from the beating . . .
because it does not require the knowledge of an expert witness. Thus, Mr. Hrichak may testify
as to the nature of the alleged excessive force as well as symptoms he suffered following the
incident.”) (internal quotation marks and citations omitted).
Dillard’s Motion in Limine
Smith timely noticed Dr. Richard Wilson as a medical expert. (See ECF No. 58). Smith’s
pretrial disclosures include the following summary of Dr. Wilson’s anticipated testimony:
It is anticipated that Dr. Wilson will testify by video deposition,
the notice of which has been provided at ECF No. 50 . . . .
Specifically, [Dr. Wilson] will opine that plaintiff was not injured
on September 7, 2019, or during his subsequent brief
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incarceration, and that the plaintiff’s claimed injury (broken teeth,
subdural hematoma) were caused by a separate trauma temporally
proximate to the plaintiff’s October 23, 2019 ER presentation
and consistent with the plaintiff’s initial report to medical
providers on or about October 23, 2019.
(Id. at 2–3.) Dillard timely filed a motion in limine seeking to preclude Dr. Wilson from
testifying at trial. 2 (ECF No. 59 at 1.)
Dr. Wilson’s anticipated testimony includes two expert opinions: (1) that Dillard was
not injured on September 7, 2019; and (2) that the subdural hematoma and other injuries for
which Dillard received treatment the following month were caused by a separate altercation
that occurred shortly before Dillard was taken to the hospital. The second opinion is no longer
necessary or relevant, given the court’s decision to preclude Dillard from presenting any
evidence or argument at trial pertaining to the medical issues for which he received treatment
in October 2019. The court concludes that the first opinion must be excluded under the
Federal Rules of Evidence.
Rule 702 sets forth the standard for the admissibility of expert testimony. The rule
provides that “[a] witness who is qualified by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if”: (1) the expert’s testimony
would “help the trier of fact to understand the evidence or to determine a fact in issue”; (2)
“the testimony is based on sufficient facts or data”; (3) “the testimony is the product of reliable
Although Smith correctly notes that Dillard’s motion specifically refers to Dr. Wilson’s expert report, the
court must “read the pleadings of a pro se plaintiff liberally and interpret them ‘to raise the strongest arguments
they suggest.’” Martin v. Duffy, 977 F.3d 294, 298 (4th Cir. 2020) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)). Smith’s pretrial disclosures indicate that Dr. Wilson’s testimony will be “consistent with his
report.” (ECF No. 58 at 2.) Accordingly, the court construes Dillard’s motion in limine as seeking to preclude
Dr. Wilson from offering the same opinions at trial. And even if Dillard had not moved to exclude Dr. Wilson’s
opinions, the court “may consider the admissibility of expert testimony sua sponte.” Lewis v. CITGO Petroleum
Corp., 561 F.3d 698, 704 (7th Cir. 2009).
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principles and methods”; and (4) “the expert has reliably applied the principles and methods
to the facts of the case.” Fed. R. Evid. 702. The rule requires a district court to act as a
gatekeeper to ensure that expert testimony “is not only relevant, but reliable.” Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 588 (1993).
Expert testimony that meets the requirements of Rule 702 “may still be excluded by
applying Rule 403.” United States v. Frazier, 387 F.3d 1244, 1263 (11th Cir. 2004) (en banc)
(citation omitted). Rule 403 provides that the court may exclude relevant evidence “if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403.
Dr. Wilson’s opinion that Dillard was not injured on September 7, 2019 must be
excluded for several reasons. First, Smith has not shown that the proffered opinion is “based
on sufficient facts or data” or “the product of reliable principles and methods.” Fed. R. Evid.
702. Dr. Wilson’s report indicates that his opinion is based primarily on examination notes
from September 11, 2019, when Dr. James Isernia examined Dillard at the jail. (See ECF No.
34-8 at 15.) Although the examination notes indicate that Dillard complained of headaches
and head pain, Dr. Wilson emphasizes that “[t]here is no documentation of any mention of
trauma being associated with the reports of headache, or any other traumatically induced
injury/condition which Mr. Dillard offered to the attending physician at the jail on [September
11, 2019].” (Id.) While Dr. Wilson appears to believe that the absence of any noted head injury
or trauma in Dr. Isernia’s examination notes indicates that Dillard was not actually injured, the
facts upon which an expert bases his opinion “must permit reasonably accurate conclusions
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as distinguished from mere guess or conjecture.” Kale v. Douthitt, 274 F.2d 476, 482 (4th Cir.
1960). In other words, Rule 702 requires “more than subjective belief or unsupported
speculation.” Daubert, 509 U.S. at 590. Because Smith has not shown that Dr. Wilson’s opinion
is based on anything more than his own subjective belief than any observed or reported trauma
would have been documented by Dr. Isernia or other staff members at the jail, the opinion is
not sufficiently reliable to be admitted under Rule 702. See, e.g., C.W. ex rel. Wood v. Textron,
Inc., 807 F.3d 827, 837 (7th Cir. 2015) (“The district court also found fault in the experts’
differential etiology because, in its view, the etiology was not reliable. We agree. Dr. Dahlgren’s
differential etiology does not present the reliability that Daubert demands. An example is
helpful here. After ruling in the alternative causes of ‘inheritance, allergy, infection or another
poison,’ Dr. Dahlgren then ruled them out because, in his view, these causes ‘would have been
detected by [the appellants’] doctors and treated accordingly.’ This approach is not the stuff
of science. It is based on faith in his fellow physicians—nothing more. The district court did
not abuse its discretion in rejecting it.”). The same is true here. Insofar as Dr. Wilson would
essentially be reiterating the contents of a treating physician’s examination note and vouching
for its completeness and accuracy, his purported expert testimony is not sufficiently reliable
under Rule 702.
Second, Smith has not shown that Dr. Wilson’s opinion testimony would be helpful to
the jury. “As Rule 702 indicates, expert testimony is only permitted if it assists the trier of fact
to understand evidence or to determine a fact in issue.” United States v. Harris, 995 F.2d 532,
534 (4th Cir. 1993). To determine whether expert testimony satisfies this requirement, courts
consider “whether the testimony is within the common knowledge of the jurors.” Id. “This
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type of evidence, almost by definition, can be of no assistance to a jury.” Id. Likewise, expert
testimony “generally will not help the trier of fact when it offers nothing more than what
lawyers for the parties can argue in closing arguments.” Frazier, 387 F.3d at 1262–63. Assuming
that Dr. Isernia’s examination notes are admitted into evidence, Smith’s counsel is free to
argue that the notes make no mention of any trauma or head injury. Expert testimony is simply
unnecessary for a jury to understand this argument or the evidence on which it is based.
Third, Smith’s pretrial disclosures indicate that he may call Dr. Isernia as a witness and
that he anticipates that “Dr. Isernia will testify that he did not observe any facial trauma or
indicia of trauma as described in the plaintiff’s complaint.” 3 (ECF No. 58 at 3.) Dr. Isernia is
free to testify about his examination, diagnosis, and treatment of Dillard, and he can be asked
to explain his own examination notes. Likewise, Smith can elicit testimony from other officers
as to whether they observed any injuries during their interactions with Dillard. (See id. at 1–2
(identifying offers who will testify that Dillard did not mention any assault or complain of any
injuries). Consequently, Dr. Wilson’s testimony would be cumulative and potentially confusing
to the jury.
Fourth and finally, the court notes that Dr. Smith’s report contains inappropriate
opinions regarding Dillard’s credibility and the veracity of his allegations. (See, e.g., ECF No.
34-8 at 16 (“[I]n my opinion, the medical file which I reviewed documents Mr. Dillard’s routine
underlying resistive & manipulative to his benefit behaviors which renders him a largely
During the pretrial conference, Smith indicated that he may decline to call Dr. Isernia for strategic reasons.
Whatever those reasons may be, they do not justify allowing Dr. Wilson to offer an opinion based on his own
subjective beliefs as to what Dr. Isernia’s examination notes would have included if Dillard had complained of
or exhibited any injuries on September 11, 2019.
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unreliable historian when the facts of history do not suit his purpose . . . . In my opinion, Mr.
Dillard’s fanciful memory, which is well documented to exist in my opinion, is a consistently
used coping mechanism for him to offer self-preserving presentations.”). Such critiques invade
the province of the jury and “may not be addressed by an expert testifying under Rule 702.”
United States v. Hill, 749 F.3d 1250, 1258 (10th Cir. 2014); see also Esch v. Cnty. of Kent, 699 F.
App’x 509, 517 (6th Cir. 2017) (“Expert witnesses are generally not permitted to base their
conclusions on an evaluation of a witness’s credibility, because credibility determinations are
not an appropriate subject for except testimony.”); United States v. Candoli, 870 F.2d 496, 506
(9th Cir. 1989) (“The jury must decide a witness’ credibility. An expert witness is not permitted
to testify specifically to a witness’ credibility or to testify in such a manner as to improperly
buttress a witness’ credibility.”). The court will therefore grant Dillard’s motion in limine insofar
as it seeks to exclude Dr. Wilson’s opinion that Dillard was not injured on September 7, 2019.4
The court also notes that Dillard did not agree to Dr. Wilson’s deposition being used at trial, and Smith has
not attempted to meet his burden of proving that the deposition is admissible under Federal Rule of Civil
Procedure 32(a). See Allgeier v. United States, 909 F.2d 869, 876 (6th Cir. 1990) (“The party seeking to admit a
deposition at trial must prove that the requirements of Rule 32(a) have been met.”); Earl v. Norfolk State Univ.,
No. 2:13-cv-00148, 2016 U.S. Dist. LEXIS 28932, at *4 (E.D. Va. Mar. 7, 2016) (“[I]n the absence of an
agreement, deposition testimony must still be introduced pursuant to Rule 32.”); Bobrosky v. Vickers, 170 F.R.D.
411, 415 (W.D. Va. 1997) (“The court . . . holds that the [deposition] notices and/or plaintiff’s failure to object
before the taking of the depositions cannot be used to circumvent the requirements of Rule 32.”). Accordingly,
even if Dr. Wilson’s opinion were admissible, the court would not allow his deposition to be used in lieu of live
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For the reasons stated, the court will grant in part Smith’s motion in limine (ECF No.
65), and grant in part Dillard’s motion in limine (ECF No. 59).
The clerk is directed to forward a copy of this Memorandum Opinion and
accompanying Order to the parties.
ENTERED this 7th day of September, 2021.
/s/ Thomas T. Cullen____________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE
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