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Gage v. Jenkins

United States District Court, M.D. Louisiana

May 18, 2017




         Before the Court is Plaintiff's Motion in Limine (R. Doc. 127), pursuant to which he seeks various forms of relief, some of which have already been addressed by the Court and will not be revisited. In this regard, the Court has previously addressed and disposed of Plaintiff's requests (1) to exclude the expert testimony of Dr. Randy Lavespere, (2) to exclude reference to Plaintiff's criminal record and prison disciplinary record, (3) to allow the introduction into evidence of other crimes or bad acts of defense witnesses, and (4) to allow a co-inmate to assist Plaintiff at trial. See R. Docs. 109 and 145. Accordingly, the Court will deny these aspects of Plaintiff's instant motion as moot and will address only Plaintiff's request to exclude the testimony at trial of defense expert witness Kerry J. Najolia. Defendants have filed an Opposition to Plaintiff's Motion in this respect (R. Doc. 131), and the Motion has been referred to the undersigned for resolution (R. Doc. 132).

         Pro se Plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”), Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against Capt. Leon Jenkins, Lt. Robert Rowe, Major Eric Hinyard, Lt. Col. Linden Franklin, Sgt. Tywanna Taylor, Sgt. C.B. Johnson and Cadet Kenneth Jarvis.[1] Plaintiff alleges that his constitutional rights were violated on November 3, 2012, when he was subjected to excessive force on that date. Specifically, he asserts that he and Officer Tywanna Taylor were first admittedly involved in a physical confrontation on that date when Officer Taylor discovered Plaintiff in possession of a prohibited cellphone, when she confiscated the cellphone, and when Plaintiff thereafter overpowered her to regain the cellphone and to run to a nearby restroom to attempt to dispose of it. Plaintiff was then taken into custody by officers who arrived on the scene in response to Officer Taylor's beeper alert, was placed in restraints, and was escorted by Defendants Leon Jenkins and Robert Rowe to a different area of the prison, Cellblock D. According to Plaintiff, Defendant Rowe then subjected Plaintiff to additional force in the form of blows about the head, and additional officers also arrived, Defendants Eric Hinyard and Linden Franklin, who also subjected Plaintiff to applications of force. According to Plaintiff, Defendants Leon Jenkins, C.B. Johnson and Kenneth Jarvis were present and observed the use of force by Defendants Rowe, Hinyard and Franklin but failed to intervene to prevent the use of force.

         Plaintiff now challenges the admissibility of testimony by Defendants' expert witness, Kerry J. Najolia, and requests a hearing relative to the admission of the expert's testimony at trial in accordance with Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Plaintiff challenges Najolia's testimony as being unreliable because not based on any personal knowledge of the pertinent events. Plaintiff asserts that Najolia's report merely recites and accepts as true Defendants' self-serving version of the facts and, in doing so, expresses an unreliable opinion that Defendants' actions were reasonable and justified under the circumstances, without substantive analysis or scientific basis or methodology.

         Rule 702 of the Federal Rules of Evidence 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.

         Pursuant to its express terms, Rule 702 does not render all expert testimony admissible. United States v. Scavo, 593 F.2d 837, 844 (8th Cir. 1979). Further, even if the proposed expert testimony satisfies each of the elements set forth in the Rule, the testimony may still be excluded pursuant to the discretionary provisions of Fed R. Evid. 403, which allow a Court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

         When a Daubert challenge is made to the testimony of a proposed expert, a district court may, but is not required, to hold a hearing at which the proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic Systems, Inc., 822 F.3d 194, 201 (5th Cir. 2016). When a hearing is not held, “a district court must still perform its gatekeeping function by performing some type of Daubert inquiry.” Id. “At a minimum, a district court must create a record of its Daubert inquiry and ‘articulate its basis for admitting [or denying] expert testimony.'” Id.

         The role of the trial court is to serve as the gatekeeper for expert testimony by making a determination whether the expert opinion is reliable. As the Fifth Circuit has explained:

[W]hen expert testimony is offered, the trial judge must perform a screening function to ensure that the expert's opinion is reliable and relevant to the facts at issue in the case. Daubert went on to make “general observations” intended to guide a district court's evaluation of scientific evidence. The nonexclusive list includes “whether [a theory or technique] can be (and has been) tested, ” whether it “has been subjected to peer review and publication, ” the “known or potential rate of error, ” and the “existence ...

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