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Silva v. Chung

United States District Court, D. Hawaii

May 21, 2019

GULSTAN E. SILVA, JR., as Personal Representative of the Estate of Sheldon Paul Haleck, Plaintiff,
v.
CHRISTOPHER CHUNG; SAMANTHA CRITCHLOW; AND STEPHEN KARDASH, Defendants.

          ORDER #1 ON PLAINTIFF'S MOTIONS IN LIMINE

          Helen Gillmor, United States District Judge.

         PLAINTIFF'S MOTION IN LIMINE NO. 1

         MOTION TO EXCLUDE TESTIMONY, EVIDENCE, AND ARGUMENT REGARDING “EXCITED DELIRIUM” AT TRIAL (ECF NO. 266) IS DENIED

         Plaintiff's Motion in Limine No. 1 seeks to exclude Defendants' expert, Dr. Stacey Hail, M.D., and her expert opinion relating to “excited delirium syndrome.”

         Dr. Hail is an Emergency Medicine Physician and a Medical Toxicologist certified by the American Board of Emergency Medicine and the American Board of Medical Toxicology. She is an Associate Professor in the Department of Emergency Medicine at the University of Texas Southwestern Medical Center at Dallas, Texas. She currently serves as an attending physician in the Parkland Hospital Emergency Department in Texas, which is a Level 1 Trauma Center and is represented to have the most emergency room visits of any single hospital in the United States. (Ex. A at p. 1, ECF No. 308-2).

         Plaintiff makes two principal objections to Dr. Hail being called to testify as an expert witness.

         First, Plaintiff claims that Dr. Hail is not qualified to testify about the Decedent's cause of death.

         Second, Plaintiff argues that Dr. Hail's opinion should be excluded because her conclusion that the Decedent died as a result of Excited Delirium Syndrome is not reliable.

         A. Dr. Hail Is Qualified To Provide Expert Testimony As To The Decedent's Cause Of Death

         Federal Rule of Evidence 702 provides that “scientific, technical, or other specialized knowledge” by a qualified expert is admissible if it will “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Civ.P. 702.

         The United States Supreme Court held in Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993) that the District Court has a gatekeeping responsibility to objectively screen expert testimony to ensure that it is not only relevant, but reliable. The District Court's obligation applies to technical and other specialized knowledge as well as testimony based on scientific knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999).

         The Ninth Circuit Court of Appeals has explained that expert testimony is relevant if the evidence logically advances a material aspect of the party's case. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463-64 (9th Cir. 2014). The Court must decide if an expert's testimony has a reliable basis in the knowledge and experience of the relevant discipline. Kumho, 526 U.S. at 149.

         Causation is an extremely relevant issue in this case. To prevail in a Section 1983 action, the plaintiff must demonstrate that the defendant's conduct was the cause of the claimed injury. Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). To meet the causation requirement, the plaintiff must establish both causation-in-fact and proximate causation. Id. The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).

         Dr. Hail's expert report provides an opinion as to the Decedent's cause of death. Dr. Hail opines that the Decedent died from methamphetamine-induced Excited Delirium Syndrome. (Ex. A at p. 26, ECF No. 308-2). The report concludes that the Defendant Officers did not cause the Decedent's death. Dr. Hail's expert report states that the Decedent did not die from traumatic causes, nor from exposure to the Taser or exposure to OC spray, or due to restraint by the Defendant Officers.

         Dr. Hail is qualified to provide a medical expert opinion as to cause of death. Dr. Hail has served as a medical expert witness in numerous cases. Several federal courts have certified Dr. Hail as a medical expert and admitted her expert opinion testimony concerning cause of death. United States v. Shelton, 2019 WL 1227967, *4 (E.D. Mich. March 15, 2019); United States v. Jain, 2019 WL 1110800, *6 (D. N.M. March 11, 2019); United States v. MacKay, 20 F.Supp.3d 1287, 1291 (D. Utah 2014); United States v. Santillana, 604 F.3d 192, 194 (5th Cir. 2010).

         Plaintiff objects on the basis that Dr. Hail is not a pathologist and did not perform the autopsy of the Decedent. Plaintiff's argument is misplaced. Such an argument goes to the weight of the opinion, not the admissibility. A physical examination of the decedent is not required for an expert to be permitted to testify as to cause of death. Williams v. Daszko, 2018 WL 2684314, *6 (E.D. Cal. June 5, 2018) (rejecting a challenge to a medical expert on the basis that the expert did not conduct a physical examination of the patient).

         The inquiry is whether the expert has the qualifications based on his or her knowledge, skill, experience, training, or education. Kumho, 526 U.S. at 149. Toxicologists are regularly found to have the requisite education, training, and experience to provide expert opinion as to the cause of death despite not performing the autopsy of the decedent. LeBlanc v. City of Los Angeles, 2006 WL 4752614, *8 (C.D. Cal. Aug. 16, 2006) (finding toxicologist permitted to testify as to cause of death even though she was not a pathologist); see Wereb v. Maui Cnty., 2011 WL 13279150, *2 (D. Haw. Dec. 2, 2011) (finding an expert with a Ph.D. was permitted to testify as to cause of death even though he is not a coroner, medical examiner, or medical doctor).

         Dr. Hail is qualified to render an expert opinion on cause of death based on her knowledge, skill, experience, training, and education.

         B. Dr. Hail May Provide Expert Testimony As To Excited Delirium Syndrome

         The District Court's inquiry into an expert's admissibility pursuant to Daubert is a flexible one. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). The trial court has discretion to decide how to test an expert's reliability as well as relevance based on the circumstances of the particular case. Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010).

         The trial court is “supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.” Alaksa Rent-A-Car, 738 F.3d at 969.

         Plaintiff argues that Dr. Hail's conclusion that the Decedent died as a result of methamphetamine-induced Excited Delirium Syndrome should be excluded because it is not a recognized medical diagnosis by the American Medical Association, American Psychiatric Association, or the World Health Organization. Plaintiff's argument goes to weight, not admissibility. The district court is not tasked with deciding whether the expert is right or wrong, just whether the testimony has substance such that it would be helpful to the jury. Id. at 969.

         Dr. Hail's expert opinion is based on reliable data, principles, and methods. Fed.R.Evid. 702; Daubert, 509 U.S. at 589. In 2008, the American College of Emergency Physicians commissioned a task force of nineteen experts to study Excited Delirium Syndrome. (Am. College of Emergency Physicians, Excited Delirium Task Force White Paper Report to the Council and Board of Directors, (“White Paper”), dated September 10, 2009, Trial Exhibit 79).

         On September 10, 2009, the task force published a study that provides a review of the history and epidemiology of the syndrome, its clinical perspectives, potential pathophysiology, diagnostic characteristics, differential diagnoses, and clinical treatment. The study concludes, as follows:

It is the consensus of the Task Force that [Excited Delirium Syndrome] is a unique syndrome which may be identified by the presence of a distinctive group of clinical and behavioral characteristics that can be recognized in the pre-mortem state. [Excited delirium syndrome], while potentially fatal, may be amendable to early therapeutic intervention in some cases.

(Id.)

         The Eleventh Circuit Court of Appeals has explained that “‘excited delirium' is a widely accepted entity in forensic pathology and is cited by medical examiners to explain the sudden in-custody deaths of individuals who are combative and in a highly agitated state.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1299 n.4 (11th Cir. 2009) (citing the Report of the Counsel on Science and Public Heath, 453 (Am. Medical Assoc., Annual Meeting, 2009)). Numerous federal district courts have found expert testimony regarding Excited Delirium Syndrome to be sufficiently reliable and admissible despite Daubert challenges to its admissibility. See e.g., Lass v. Cnty. of Orange, 2010 WL 11561183, *1 (C.D. Cal. Sept. 17, 2010); Galack v. PTS of Am., LLC, 2015 WL 5692327, *18 (N.D.Ga. July 6, 2015); Barnwell v. Roane Cnty., 2016 WL 1457928, *3-*4 (E.D. Tenn. Apr. 12, 2016).

         The Ninth Circuit Court of Appeals has permitted district courts to rely on expert testimony regarding Excited Delirium Syndrome in granting police officers qualified immunity in Section 1983 cases. Marquez v. City of Phoenix, 693 F.3d 1167, 1171 (9th Cir. 2012); Gregory v. Cnty. of Maui, 523 F.3d 1103, 1109-10 (9th Cir. 2008).

         Dr. Hail explains in her report that she reviewed a number of studies concerning Excited Delirium Syndrome including both the American College of Emergency Physician's White Paper and the National Institute of Justice's report from its Excited Delirium Syndrome Workshop Panel. The studies discuss the definition, epidemiology, pathophysiology, differential diagnosis, and acute treatment of Excited Delirium Syndrome and the common features of the syndrome. Dr. Hail reviewed the common features from the studies and compared them to those exhibited by the Decedent in rendering her opinion. Dr. Hail's methods are sufficiently reliable to allow her to provide an expert opinion.

         Plaintiff objects to Dr. Hail's conclusion that the Decedent's death was caused by Excited Delirium Syndrome on the basis that it is a differential diagnosis rather than the result of a definitive diagnostic test. Plaintiff's objection is misplaced. The Ninth Circuit Court of Appeals has found that differential diagnosis is a common, reliable methodology under the Daubert standard that is admissible. Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1197 (9th Cir. 2014) (collecting cases explaining that reliable differential diagnosis may form the basis of an expert's causation testimony); Clausen v. M/V New Carissa, 339 F.3d 1049, 1057-58 (9th Cir. 2003) (explaining that ...


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