The opinion of the court was delivered by: Sue E. Myerscough, United States District Judge.
Tuesday, 10 January, 2012 01:54:13 PM
Clerk, U.S. District Court, ILCD
This cause is before the Court on Plaintiff's Motion to Exclude Certain Testimony of Mark Kroll, Ph.D. (Motion) (d/e 379). Neither party has requested a hearing. Because Kroll is sufficiently qualified to testify and his testimony is both sufficiently reliable and sufficiently relevant, the Motion is denied.
In this lawsuit, Plaintiff, the Estate of Amon Paul Carlock, Jr., deceased, by Mary L. Andreatta-Carlock, Executor, alleges that Carlock was a pretrial detainee housed at the Sangamon County Illinois jail from October 9, 2007, until his death on November 16, 2007. See Fourth Amended Complaint (d/e 138). Plaintiff alleges that Defendants were responsible for Carlock's death. The defendants in this case include the County Defendants--Neil Williamson, Anthony Sacco, Terry Durr, William Strayer, Ron Beckner, Candace Cain, Tammy Powell, Todd Guy, Kevin Furlong, Anne Brauer, Niecey West, and Lucy Ramsey--as well as the medical defendants--Joseph Maurer, M.D. and Chauncey C. Maher, III, M.D. Only the County Defendants are involved in this Motion.
In the Motion, Plaintiff identifies the issues in the case as including the following: (1) whether the County Defendants willfully, recklessly, or maliciously (a) failed to perform cardiopulmonary resuscitation (CPR) or use an automated external defibrillator (AED); and (b) physically mistreated Carlock by restraining him face down and applying 285 pounds of pressure to his back; and (2) whether the tasering of Carlock contributed causally to his death.*fn1
The County Defendants retained several expert witnesses, including Mark Kroll, Ph.D. Plaintiff now seeks to exclude certain testimony by Kroll. While Plaintiff concedes Kroll is qualified to testify as to his opinion that the taser did not cause or contribute to Carlock's death, Plaintiff asserts that Kroll "does not have the credentials or credible published authorities as back up supporting his criticism of Plaintiff's physician experts, or to render opinions as to the need for CPR or that prone restraint is never dangerous."
In particular, Plaintiff asserts Kroll should not be allowed to testify that (1) based in part on the delayed capillary refill found by the emergency medical technician (EMT), Carlock's cardiac arrest did not occur until 60 seconds or less before the ambulance arrived; and (2) there are no risks to face-down restraint even if weight is applied to the back. Plaintiff argues that Kroll is not qualified to testify on those matters, the testimony is not reliable, and the testimony is not relevant. See Kroll's Initial Report, p. 12 (opinion that Carlock's cardiac arrest occurred around the time of EMT arrival based on Carlock having a pulse until that time and based on the EMTs' notation of delayed capillary refill: "Any capillary refill would suggest that the cardiac arrest would have occurred less than 1 minute before this was noted"); Kroll's Supplemental Report, p. 7 (comment in response to expert report and deposition of Dr. Silerberg, noting that the peer-reviewed scientific literature does not support the conclusion that sitting on someone who is in the prone position with his hands cuffed behind his back interferes with respiration); Kroll's Supplemental Report p. 12 (comment in response to deposition of Dr. Hubler, noting that "positional asphyxia was a popular speculation for in-custody-deaths" but, after scientific study, was found to have no basis).
"The admission of expert testimony is governed by Federal Rule of Evidence 702 and the principles outlined in Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).]" Bielskis v. Louisville Ladder, Inc., F.3d , 2011 WL 5829771, at *4 (7th Cir. 2011). To determine whether to admit expert testimony, this Court must examine whether (1) "the witness is qualified,"(2) "the expert's methodology is scientifically reliable," and (3) "the testimony 'will assist the trier of fact to understand the evidence or to determine a fact in issue.'" Myers v. Illinois Central R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010) (quoting Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (concluding "that Daubert's general principles" also apply to nonscientific experts). The test is a flexible one. Bielskis, F.3d , (7th Cir. 2011) (the district court performs a gatekeeping function when determining whether to exclude expert testimony). The party that proffers an expert's testimony must establish the admissibility of the testimony by a preponderance of evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
A. Kroll Is Sufficiently Qualified to Testify About His Opinions on Capillary Refill and Prone Restraint Plaintiff first argues Kroll is not qualified as an expert on the non- taser issues because he does not have the knowledge, skill, experience, or training as a physician to criticize physicians or give medical opinions on time of cardiac arrest or the physical effects of prone restraint. Plaintiff notes that Kroll does not have "a medical education and a licence" and the authorities he cited to support his medical opinions are "bogus." See Brief in Support, p. 6 (d/e 380).
To determine whether Kroll is qualified as an expert, this Court must compare the area in which Kroll has "superior knowledge, skill, experience or education ...