United States District Court, N.D. West Virginia
THOMAS G. FIGANIAK and VALERIE A. FIGANIAK, as Administrators of the Estate of Kevin Figaniak, Plaintiffs,
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 
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
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.
Johnson's Motion in Limine #1 - To Exclude the
Testimony of Wayne K. Ross, M.D. (ECF No. 143) - DENIED.
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.
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.
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
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).
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.
Johnson's Motion in Limine #2 - To Exclude the
Testimony of Camille B. Wortman, Ph.D. (ECF No. 144) -
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.
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.
Johnson's Motion in Limine #3 - To Exclude Certain
Testimony of Mr. and Mrs. Figaniak (ECF No. 145) -
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 ...