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Gayton v. McCoy

October 17, 2007

LESTER GAYTON, JR., ADMINISTRATOR OF THE ESTATE OF INDIA TAYLOR, DECEASED, PLAINTIFF,
v.
MICHAEL D. MCCOY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore United States Magistrate Judge

BEFORE U.S. MAGISTRATE JUDGE BYRON G. CUDMORE:

OPINION

Defendants Radcliffe et al. have filed a Motion to Bar Opinions of Corey Weinstein, M.D., Pertaining to Cause of Death (d/e 121). The other defendants have joined in the motion. (d/e 123). After careful consideration of the parties' submissions, and for the reasons detailed below, the Court concludes that the motion should be granted.

I. Legal Standard

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and Daubert. Under this framework, courts determine whether the expert testimony is both relevant and reliable. It is a three-step analysis: the witness must be qualified "as an expert by knowledge, skill, experience, training or education." Fed. R. Evid. 702; the expert's reasoning or methodology underlying the testimony must be scientifically reliable, Daubert, 409 U.S. at 592-93, 113 S.Ct. 2786; and the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702.

Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Plaintiff bears the burden of establishing the admissibility of Dr. Weinstein's expert testimony by a preponderance of the evidence. Fed. R. Evid. 702 Advisory Committee Notes, 2000 Amendments (the admissibility of expert testimony is governed by Rule 104(a), which puts the burden on the proponent to establish admissibility by preponderance).

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993), the Supreme Court set forth some potentially appropriate factors to consider when assessing the reliability of expert testimony, including whether the theory can or has been tested; whether the theory has been subjected to peer review and publication; the rate of error of the theory when applied; and, whether the theory is generally accepted. These factors are not definitive nor do they "all necessarily apply even in every instance in which the reliability of scientific testimony is challenged." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151 (1999); Bourelle v. Crown Equipment Corp., 220 F.3d 532, 536 n.8 (7th Cir. 2000)("there is no requirement that the district judge consider each one of . . . [Daubert] 'guideposts' when making an admissibility ruling under Fed. R. Evid. 702").

The polestar is "ensur[ing] the reliability and relevancy of expert testimony . . . . [,] to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152.

Federal Rule of Evidence 702, amended in response to Daubert, provides:

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.*fn1

"A court is expected to reject 'any subjective belief or speculation.'" Ammons v. Aramark Uniform Serv., 368 F.3d 809, 816 (7th Cir. 2004)(quoted cites omitted). However, determinations on admissibility do not supplant the adversarial process. "Shaky" expert testimony may nevertheless be admissible, assailable by its opponents through cross- examination and the introduction of contradicting evidence. Daubert, 509 U.S. at 596)( "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.") Nor can the court exclude expert testimony because "the court believes one version of [competing] facts and not the other." Fed. R. Evid. Advisory Committee Notes, 2000 Amendments (recognizing that "experts sometimes reach different conclusions based on competing version of the facts."). "The focus, . . . must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 595.

II. Dr. Weinstein's Opinions on Ms. Taylor's Cause of Death

A. Dr. Weinstein's Preliminary Report*fn2

Dr. Weinstein's "preliminary report" of February 1, 2006 states in relevant part:

10. Ms. India Taylor suffered from serious chronic illnesses. At the time of her 10/15/2003 incarceration in the PCJ*fn3 she [Ms. Taylor] had been prescribed four medications for her cardiovascular illness by her private physician. Her medicine regimen was complex and sophisticated: Furosemide, Acetazolamide, Metolazine and Coreg. Heroin withdrawal usually causes elevations of heart rate and blood pressure, both of which would make cardiovascular disease worse. Had Ms. Taylor's medication not been interrupted and instead been provided, as is routine and standard in jail medical care; and had her heroin withdrawal been treated as was demanded by PCJ protocol, then it is likely that the lethal event on 10/17/2003 would have been prevented." (2/1/06 preliminary report, p. 2).

B. Dr. Weinstein's Supplemental Report

Dr. Weinstein's supplemental report of December 14, 2006 states in relevant part:

6. . . . On October 15, 2003, prescriptions from Walgreen's Pharmacy were Metolazone, Coreg, Lasix and Acetazolamide. The three diuretic medication and alpha-beta blocker regimen is a sophisticated treatment program for serious cardiac disease. . .

8. . . . Shift notes from jail custody describe [Ms. Taylor] as vomiting violently during all three shifts on 10/16/03.

10. . . . The officers could not have known, but the medical staff should have known that prolonged vomiting in a patient who has been on three powerful diuretics could easily produce electrolyte abnormalities that would worsen cardiac function.

C. Dr. Weinstein's Deposition

Dr. Weinstein testified in his deposition of January 12, 2007:

Q: First thing I want to ask you, how did -- what caused India Taylor's death? What was the mechanism?

A: I think that is unknown at this time. The mechanism, I have her death was reported as ...


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