United States District Court, E.D. Arkansas, Western Division
JASON MCGEHEE, et al. PLAINTIFFS
ASA HUTCHINSON, et al. DEFENDANTS
Kristine G. Baker United States District Court Judge.
the Court are plaintiffs' motions in limine to
exclude certain anticipated testimony of Dr. Daniel E.
Buffington and Dr. Joseph Antognini (Dkt. Nos. 142, 143).
Defendants responded in opposition to both motions (Dkt. Nos.
move to exclude certain of Dr. Buffington and Dr.
Antognini's anticipated testimony, arguing that these
witnesses are not qualified to provide expert testimony on
subject matter outside of their areas of expertise pursuant
to Federal Rule of Evidence 702. For the first motion,
plaintiffs assert that the Court should exclude certain
anticipated testimony of Dr. Buffington, a pharmacist,
because plaintiffs contend that he is not qualified to offer
expert opinions on matters outside of his expertise, such as
the pharmacological and anesthetic properties of midazolam,
monitoring the depth of anesthesia during surgery, assessing
anesthetized patients for signs of consciousness, and the
correlation between movement and pain in anesthetized persons
(Dkt. No. 142, at 1-2). For the second motion, plaintiffs
assert that the Court should exclude certain anticipate
testimony of Dr. Antognini, an anesthesiologist, because
plaintiffs contend that he is not qualified to offer expert
opinion on matters outside of his expertise, such as the
level of pain involved in death by firing squad and the
availability of the firing squad as an alternative method of
execution (Dkt. No. 143, at 1-2).
response to the first motion, defendants argue that Dr.
Buffington is qualified to render reliable expert opinions in
this case based on his training and experience as a Doctor of
Pharmacy (Dkt. No. 148, at 2). Defendants also contend that
Dr. Buffington's opinions are based on reliable facts and
data because his opinions are supported by citations to
peer-reviewed, published, scientific literature
(Id., at 10). In response to the second motion,
defendants argue that Dr. Antognini is qualified to render
reliable expert opinions as a medical doctor who is board
certified in the field of anesthesiology (Dkt. No. 149, at
4). Defendants further assert that Dr. Antognini's
opinions are based on sufficient facts and data
(Id., at 6). In their responses to both motions,
defendants maintain that plaintiffs' arguments for
excluding certain anticipated testimony of Dr. Buffington and
Dr. Antognini go to the weight, and not the admissibility, of
the testimony to be offered by these witnesses (Dkt. No. 148,
at 1; 149, at 1-2).
702 provides that:
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. “Rule 702 reflects an attempt to
liberalize the rules governing the admission of expert
testimony. The rule clearly is one of admissibility rather
than exclusion.” Lauzon v. Senco Prods.,
Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal
quotations and citations omitted). “The exclusion of an
expert's opinion is proper only if it is so fundamentally
unsupported that it can offer no assistance to the
jury.” Wood v. Minn. Mining & Mfg. Co.,
112 F.3d 306, 309 (8th Cir. 1997) (internal quotations and
determining whether expert testimony should be excluded or
admitted, the district court must decide if the expert's
testimony and methodology are reliable, are relevant, and can
be applied reasonably to the facts of the case. David E.
Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th
Cir. 2012); Barrett v. Rhodia, Inc., 606 F.3d 975,
980 (8th Cir. 2010). Under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district
court must conduct this initial inquiry as part of its
gatekeeping function. Watson, 668 F.3d at 1015.
satisfy the reliability requirement for admission of expert
testimony, the party offering the expert testimony must show
by a preponderance of the evidence that the expert is
qualified to render the opinion and that the methodology
underlying his conclusions is scientifically valid.
Barrett, 606 F.3d at 980 (internal quotation marks
and citation omitted). To satisfy the relevance requirement
for the admission of expert testimony, the proponent must
show that the expert's reasoning or methodology was
applied properly to the facts at issue. Id.
Court examines the following four non-exclusive factors when
determining the reliability of an expert's opinion: (1)
“whether it can be (and has been) tested”; (2)
“whether the theory or technique has been subjected to
peer review and publication”; (3) “the known or
potential rate of error”; and (4) “[the
method's] ‘general acceptance.'”
Presley v. Lakewood Eng'g and Mfg. Co., 553 F.3d
638, 643 (8th Cir. 2009) (quoting Daubert, 509 U.S.
at 593-94). These factors are not exhaustive or limiting, and
the Court must use the factors as it deems fit to tailor an
examination of the reliability of expert testimony to the
facts of each case. Id. In addition, the Court can
weigh whether the expertise was developed for litigation or
naturally flowed from the expert's research; whether the
proposed expert ruled out other alternative explanations; and
whether the proposed expert sufficiently connected the
proposed testimony with the facts of the case. Id.
While weighing these factors, the Court must continue to
function as a gatekeeper who separates expert opinion
evidence based on good grounds from subjective speculation
that masquerades as scientific knowledge. Id. Thus,
speculative expert testimony with no basis in the evidence ...