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Figaniak v. Fraternal of Owl's Home Nest

United States District Court, N.D. West Virginia

July 14, 2017

THOMAS G. FIGANIAK and VALERIE A. FIGANIAK, as Administrators of the Estate of Kevin Figaniak, Plaintiffs,
v.
FRATERNAL ORDER OF OWL'S HOME NEST, LOYAL ORDER OF OWLS NEST LODGE 2558, d/b/a THE OWLS NEST, a West Virginia corporation, YE OLDE ALPHA, INC., a West Virginia corporation, CRAIG TYLER PEACOCK, individually, JARRETT CHANDLER, individually, and TYLER JOHNSON, individually, Defendants.

          MEMORANDUM OPINION AND ORDER REGARDING PARTIES' MOTIONS IN LIMINE [1]

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         Defendant Tyler Johnson (“Johnson”) has filed five motions in limine to preclude certain evidence, and the plaintiffs have filed one motion in limine to preclude the defendants from presenting certain evidence. The trial in this civil action is scheduled to commence on July 25, 2017. This Court will address those motions in limine and set forth its findings, as discussed below.[2]

         1. Johnson's Motion in Limine #1 - To Exclude the Testimony of Wayne K. Ross, M.D. (ECF No. 143) - DENIED.

         Johnson asks this Court to preclude or limit the testimony of the plaintiffs' expert, Wayne K. Ross, M.D., a forensic pathologist. The plaintiffs intend to present Dr. Ross's conclusions that all blows to their deceased son's (“Kevin”) head, including those attributable to Johnson, contributed to Kevin's death and that Kevin suffered severe conscious pain when being hit and for several seconds after losing consciousness.

         Johnson does not contest Dr. Ross's qualifications to be certified as an expert on forensic pathology, his methods, or the usefulness of his testimony to the jury. Rather, he argues that Dr. Ross's opinions are unreliable because they are not based on sufficient facts or data, and because he did not reliably apply his expertise to all of the facts of this case. Specifically, he argues that Dr. Ross's opinions are “based upon ‘alternative facts' that cannot be established by independent evidence” and upon his own speculation about the circumstances of Kevin's injuries. ECF No. 143-1 at 1.

         Rule 702 permits a “witness who is qualified as an expert by knowledge, skill, experience, training, or education” to provide an opinion and testimony if: (1) “the expert's scientific, technical, or other specialized knowledge will 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 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 court “must ensure that any and all [expert] testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). To assess reliability of expert testimony, the court may consider:

(1) whether the particular scientific theory “can be (and has been) tested”; (2) whether the theory “has been subjected to peer review and publication”; (3) the “known or potential rate of error”; (4) the “existence and maintenance of standards controlling the technique's operation”; and (5) whether the technique has achieved “general acceptance” in the relevant scientific or expert community.

United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (citing Daubert, 509 U.S. at 593-94). This is a flexible analysis because “[r]ather than providing a definitive or exhaustive list, [these factors] merely illustrate[] the types of factors that will ‘bear on the inquiry.'” Id. (citing Daubert, 509 U.S. at 593-94).

         The differential diagnosis methodology used by Dr. Ross is “a standard scientific technique [to] identify[] the cause of a medical problem” that will not be excluded for failure to “rule out every possible alternative cause” so long as the expert provides some “explanation for why she has concluded [that an alternative cause] was not the sole cause.” United States v. Chikvashvili, __ F.3d __, 2017 WL 2485295, *6-7 (4th Cir. June 9, 2017). Dr. Ross based his medical conclusion on the physical evidence of trauma to Kevin's body and the autopsy. He concluded that he could not conclude to a degree of medical certainty that any one blow caused Kevin's death. He further concluded that Kevin would have suffered conscious pain when being hit and for several seconds after losing consciousness. While Johnson argues that Dr. Ross's conclusions are based on factual errors as to how the fight actually occurred, Dr. Ross made clear in his deposition testimony that his opinions were not based on the witnesses' testimony he reviewed but were “based upon the physical evidence and scientific methodology” outlined in his expert report. ECF No. 169-7 at 6. To the extent that the evidence of how the fight and the blows to Kevin's head actually occurred contradict or cast doubt on Dr. Ross's conclusions, “[v]igorous 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.” Daubert, 509 U.S. at 596. Accordingly, the defendant's motion is DENIED.

         2. Johnson's Motion in Limine #2 - To Exclude the Testimony of Camille B. Wortman, Ph.D. (ECF No. 144) - DENIED.

         Johnson asks this Court to preclude or limit the testimony of the plaintiffs' expert Camille B. Wortman, Ph.D., a psychologist. The plaintiffs intend to introduce Dr. Wortman's testimony as evidence of their emotional suffering to prove damages. Johnson argues that Dr. Wortman's opinions are not reliable because she relied only upon the plaintiffs' biased and inaccurate understandings of the circumstances of their son's death, rather than grounding her opinions in what actually happened.

         Damages in a wrongful death action include “[s]orrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent.” W.Va. Code § 55-7-6(c)(1). Thus, the plaintiffs' emotional reactions to what they believe happened to their son, regardless of bias and inaccuracies, are relevant to their damages. Dr. Wortman's reliance on her interviews of the plaintiffs, their deposition testimony, and their victim impact statements is proper for making a determination of the plaintiffs' mental perceptions and emotional states. Further, Dr. Wortman's conclusions will be helpful to the jury in evaluating the plaintiffs' grief and their beliefs about how their son died. Her analysis provides a framework for evaluating and understanding the plaintiffs' admittedly biased and inaccurate understandings of their son's death that will assist the jury in determining any damages for emotional harm. Accordingly, Johnson's second motion in limine (ECF No. 144) is DENIED.

         3. Johnson's Motion in Limine #3 - To Exclude Certain Testimony of Mr. and Mrs. Figaniak (ECF No. 145) - DEFERRED.

         Johnson argues that the plaintiffs should be precluded from testifying about the factual circumstances of their son's death, Johnson's prior physical altercations, Johnson's statements to them in the hospital after the fight, and their opinions about other witnesses' characters for truthfulness. The plaintiffs assert they intend to testify only about Johnson's ...


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