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Mayfield v. Brewer

United States District Court, S.D. Mississippi, Eastern Division

December 16, 2014

MARK BREWER, in his official and individual capacity and CITY OF LAUREL, A Municipal Corporation, Defendants.


KEITH STARRETT, District Judge.

This matter is before the Court on the Defendants' Amended Motion [125] to exclude certain deposition testimony at trial. Through this filing, Defendants lodge objections to portions of the depositions of Dr. Michael Whitmore and Dr. James C. Lamousin. Dr. Whitmore is a podiatrist. Dr. Whitmore provided certain treatment to the Plaintiff for fractures to his left foot following his arrest by Defendant Mark Brewer, a Sergeant with the City of Laurel Police Department. Dr. Lamousin is a psychiatrist. Dr. Lamousin also treated the Plaintiff subsequent to his arrest by Sergeant Brewer. Plaintiff has indicated that he intends to call Dr. Whitmore and Dr. Lamousin as expert witnesses at trial. It appears that the Plaintiff anticipates both Drs. Whitmore and Lamousin testifying by deposition. Having considered the submissions of the parties, the record, and the applicable law, the Court finds as follows:

Dr. Michael Whitmore

1. Page 24, line 10 through page 26, line 1 of Dr. Whitmore's deposition

This portion of Dr. Whitmore's deposition concerns whether he believes the Plaintiff's foot was fractured during the course of the subject arrest based upon his review of a video capturing the incident. Defendants object to this portion of the deposition "based on the fact the questions call for speculation and elicit testimony outside the areas of expert testimony of Dr. Whitmore." (Defs.' Am. Mot. [125] at p. 1.) More specifically, Defendants assert that the "testimony is an interpretation of a video which is outside the expertise of this physician as no foundation for his training or education in interpreting said video or the video's connection to Mayfield's injury was provided." (Defs.' Am. Mot. [125] at p. 1.)

The United States Supreme Court has recognized that unlike an ordinary witness, "an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Fifth Circuit has analogously held that an expert witness may offer causation opinions based on a plaintiff's account of events notwithstanding the expert's lack of personal knowledge of the underlying facts. See Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 349-50 (5th Cir. 1983); see also Fed.R.Evid. 703 ("An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. ") (emphasis added). The relaxation of the personal knowledge requirement as to expert witness testimony "is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline." Daubert, 509 U.S. at 592. Of course, the "knowledge" required of an expert under Federal Rule of Evidence 702 is not satisfied by mere "subjective belief or unsupported speculation." Id. at 590.

Pursuant to the preceding principles, the Court overrules the Defendants' objection to a treating physician opining as to the cause of his patient's injuries based on his review of video of the incident allegedly causing the injuries. It is common knowledge that physicians take their patients' medical and social histories into account in assigning diagnoses. These histories are often verbally reported and/or communicated through written questionnaires. Issues or concerns regarding the accuracy of a patient's subjective reporting of his history should be lessened or negated by the existence of objective video of an incident purportedly necessitating treatment. Therefore, it is more likely that video evidence will facilitate, as opposed to render unreliable, medical causation opinions. Furthermore, Defendants' suggestion that a physician must receive specialized education or training in order to interpret a video is unsupported by any citation to authority and is not well taken. The challenged testimony of Dr. Whitmore, describe above, is not "too speculative to be admissible under Rule 702." Hammond v. Coleman Co., 209 F.3d 718, 2000 WL 283165, at *1 (5th Cir. 2000) (citation omitted).

2. Page 33, lines 8 through 13 of the deposition

This portion of Dr. Whitmore's deposition reads as follows:

Q. All right. Do you have any reason to believe that that - that Mr. Mayfield's pain wasn't actually, in fact, going up?
A. No, sir.
Mr. Robinson: Object to speculation.
The Witness: I'm sorry.

This testimony relates to the Plaintiff being excused from work for three days due to the injuries he purportedly sustained as a result of Sergeant Brewer's use of force. Defendants object to the admission of this testimony on the exact same basis that is discussed in the preceding section of this opinion. The objection is denied. Dr. Whitmore's above-quoted testimony has nothing to do with the video of the subject incident. Moreover, a treating physician may testify as to the basis for his or her belief regarding a patient's pain without engaging in impermissible speculation. Cf. McGuire v. Davis, ...

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