United States District Court, D. Hawaii
GULSTAN E. SILVA, JR., as Personal Representative of the Estate of Sheldon Paul Haleck, Plaintiff,
CHRISTOPHER CHUNG; SAMANTHA CRITCHLOW; AND STEPHEN KARDASH, Defendants.
ORDER #1 ON PLAINTIFF'S MOTIONS IN
Gillmor, United States District Judge.
MOTION IN LIMINE NO. 1
TO EXCLUDE TESTIMONY, EVIDENCE, AND ARGUMENT REGARDING
“EXCITED DELIRIUM” AT TRIAL (ECF NO. 266) IS
Motion in Limine No. 1 seeks to exclude Defendants'
expert, Dr. Stacey Hail, M.D., and her expert opinion
relating to “excited delirium syndrome.”
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).
makes two principal objections to Dr. Hail being called to
testify as an expert witness.
Plaintiff claims that Dr. Hail is not qualified to testify
about the Decedent's cause of death.
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.
Dr. Hail Is Qualified To Provide Expert Testimony As To The
Decedent's Cause Of Death
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.
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).
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.
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).
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.
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
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).
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
Hail is qualified to render an expert opinion on cause of
death based on her knowledge, skill, experience, training,
Dr. Hail May Provide Expert Testimony As To Excited Delirium
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).
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.
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.
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).
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
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
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).
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).
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.
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 ...