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Goode v. City of Southaven

United States District Court, N.D. Mississippi, Oxford Division

September 27, 2018

KELLI DENISE GOODE, Individually, and also as the Personal Representative of Troy Charlton Goode, Deceased, and as Mother, Natural Guardian, and Next Friend of R.G., a Minor, and also on behalf of all similarly situated persons PLAINTIFF



         Before the Court is “Defendant Lemuel D. Oliver, M.D.'s Daubert Motion to Exclude Plaintiff's Proposed Expert Testimony.” Doc. #399.


         Procedural History and Relevant Factual Background

          On January 13, 2016, Kelli Denise Goode-individually, and in her capacity as the personal representative of her deceased husband, as next friend to her minor son, and on behalf of “similarly situated persons”-filed a complaint in the United States District Court for the Western District of Tennessee “seek[ing] damages and injunctive relief based upon the untimely death of [her husband] Troy Charlton Goode ….” Doc. #1 at 1-2. On August 15, 2016, Kelli, [1] in the same capacities as that in her original complaint, filed an amended complaint, naming as defendants the City of Southaven, Todd Baggett, Jeremy Bond, Tyler Price, Joel Rich, Jason Scallorn, Stacie J. Graham, Mike Mueller, William Painter, Jr., Bruce K. Sebring, Joseph Spence, Richard A. Weatherford (collectively, “Southaven Defendants”); John Does 1-10; Baptist Memorial Hospital- Desoto (“BMH-D”); Southeastern Emergency Physicians, Inc.;[2] and Lemuel D. Oliver, M.D. Doc. #107. In her amended complaint, Kelli asserts numerous state and federal claims against the defendants regarding Troy's death-which Kelli alleges was caused by positional asphyxia and his placement in a maximal, prone restraint.[3]

         On March 31, 2017, this action was transferred from the Western District of Tennessee to this Court. Doc. #246. On January 23, 2018, after a period of extended discovery, Oliver filed a Daubert motion to exclude Kelli's proposed expert testimony, Doc. #399, along with a memorandum brief, Doc. #400. Oliver's motion and memorandum were joined by BMH-D, Doc. #415, and the Southaven Defendants, Doc. #408. On February 6, 2018, Kelli responded in opposition to the motion. Doc. #458. A week later, Oliver replied to Kelli, Doc. #469, and was joined by BMH-D, Doc. #472, and the Southaven Defendants, Doc. #474.[4]


         Legal Standard

         Federal Rule of Evidence 702 provides:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) 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;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), a district court has a “special obligation … to ensure that any and all scientific testimony … is not only relevant, but reliable.” Bear Ranch, L.L.C. v. Heartbrand Beef, Inc., 885 F.3d 794, 802 (5th Cir. 2018) (alterations and internal quotation marks omitted). “To establish reliability under Daubert, an expert bears the burden of furnishing some objective, independent validation of his methodology.” Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 536 (5th Cir. 2013) (alterations and internal quotation marks omitted).

         When considering reliability, Daubert dictates that trial courts should consider “the extent to which a given technique can be tested, whether the technique is subject to peer review and publication, any known potential rate of error, the existence and maintenance of standards governing operation of the technique, and, finally, whether the method has been generally accepted in the relevant scientific community.” Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007). The Daubert factors “are not mandatory or exclusive.” Id. Rather, the district court should consider whether the enumerated factors “are appropriate, use them as a starting point, and then ascertain if other factors should be considered.” Id. (citing Black v. Food Lion, 171 F.3d 308, 311- 12 (5th Cir. 1999)). Overall, the Court must be mindful of “the fact that … testimony may be assailable does not mean it is inadmissible under Rule 702. The trial court's role as gatekeeper … is not intended to serve as a replacement for the adversary system.” United States v. Ebron, 683 F.3d 105, 139 (5th Cir. 2012).



         In his motion, Oliver asserts particularized objections to the various experts designated by Kelli and lodges a blanket objection that there is no scientific basis for the assertion that prone maximal restraint (“PMR”)[5] causes positional asphyxia.

         A. PMR and Positional Asphyxia

         Oliver argues that “[m]ultiple scientific, peer reviewed studies have found the PMR does not cause positional asphyxia or otherwise lead to cardiorespiratory compromise and death. This is contrary to Plaintiff's theory on causation and her experts' testimony. In fact, Plaintiff's experts have no reliable scientific studies to support their theory.” Doc. #400 at 8. Relying on Price v. County of San Diego, 990 F.Supp. 1230 (S.D. Cal. 1998), Oliver contends that Kelli's experts' theories have not garnered acceptance from the scientific community and that this Court should follow the Fifth Circuit's admonishment to “pay close attention when Plaintiff's expert attempts to depart from the generally accepted scientific methodology ….” Doc. #400 at 19; see Doc. #469 at 4-5. Oliver argues that Kelli's “experts should be excluded as their theories are genuinely not scientific and are nothing more than bold speculations.” Doc. #400 at 19 (citing Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998)).

         In response, Kelli asserts that “there are numerous reliable scientific studies supporting” her theory that the PMR can lead to positional asphyxia, citing a list of eleven supporting articles that constitute “a few of the sources relied upon by plaintiff and plaintiff's experts in this matter.” Doc. #458 at 4-7. Kelli questions the reliability of the opinions relied on by Oliver, noting that they originate from “a series of studies by Chan, Vilke, and Neuman … [that] were funded by the San Diego Police Department as a result of a number of ‘in custody' deaths from [PMR] and subsequent litigation.” Id. at 7. Kelli further argues that these studies do not apply to Troy's case and that Troy would have been excluded from the studies because he suffered from a documented breathing problem, asthma. Id. This Court, for numerous reasons, agrees with Kelli that neither Price nor the studies bar testimony connecting PMR and positional asphyxiation.

         First, Price was a bench trial in which the admissibility of expert testimony was not at issue, and “[s]everal attempts to expand the holding of Price to exclude expert testimony on positional asphyxia have been rejected.” Watson-Nance v. City of Phoenix, No. CV-08-01129, 2011 WL 13152466, at *12 (D. Ariz. June 16, 2011).[6]

         Second, a 2007 study relied on by Oliver, for example, excluded subjects like Troy with a history of pulmonary[7] or cardiac problems, noting that its “subjects were young and generally healthy and may not reflect the population of individuals who are restrained in the field setting.” Doc. #458 at 7.

         Third, none of the studies “replicated the conditions in the field, including psychological and physical stressors associated with pursuit by a law enforcement official, struggle or trauma.” Id. at 8.

         Fourth, none of the studies involved restraints lasting longer than fifteen minutes, although Troy was placed in a PMR for approximately an hour and a half. Id. at 7.

         Fifth, unlike the participants in the studies, Troy was under the influence of drugs, which would have disqualified him from any of the studies according to Vilke. Id. at 8.

         Finally, Kelli has cited numerous texts which establish a connection between PMR and positional asphyxiation.

         Accordingly, the conclusion that PMR can cause positional asphyxia is reliable within the meaning of Daubert. See Gutierrez v. City of San Antonio, 139 F.3d 441, 451 (5th Cir. 1998) (“hog-tying” may create substantial risk of death or bodily injury in limited set of circumstances, such as when drug-affected person in state of excited delirium is placed face down in prone position).

         B. Parin Parikh

         Parin Parikh is an attending physician specializing in interventional cardiology and cardiovascular medicine at Texas Health Presbyterian Dallas Hospital, a position he has held since 2013. Doc. #458 at 14. A 2006 graduate of the Johns Hopkins University School of Medicine, Parikh is board certified in interventional cardiology, cardiovascular medicine, and adult internal medicine. Id. He is also certified in vascular interpretation by the American Registry for Diagnostic Medical Sonography, in nuclear cardiology by the ...

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