Free Response to Motion - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendants. NO. CV03-1892-PHX-ROS DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE NO. 1 TO EXCLUDE TESTIMONY OF MICHAEL CARHART, Ph.D.

Defendants submit this Response in Opposition to Plaintiff's Motion in Limine No. 1 to Exclude Testimony of Michael Carhart, Ph.D. Plaintiff's Motion must be denied because: (1) Dr. Carhart is a qualified expert witness; (2) Dr. Carhart has foundation for his expert opinions; (3) Daubert v. Merrell Dow Pharmaceuticals, Inc. is satisfied; (4) Dr. Carhart appropriated reserved the right to supplement his report; and (5) the demonstrative photographs taken by Dr. Carhart were timely produced.

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I.

BACKGROUND. Plaintiff alleges that on June 10, 2002, Phoenix Officers "wrenched the joint

out of socket which was strong enough to cause an avulsion of the elbow's lateral collateral ligament." Plaintiff characterizes this action as the pulling of Plaintiff's arm "much like a clump of dirt is ripped from the earth when pulling weeds."1 Plaintiff disclosed Dr. Purdy, her treating physician, who opined that the officer's use of force on Plaintiff's elbow and wrist caused her elbow to become dislocated. Dr. Purdy's one page expert report was disclosed as "rebuttal" after Dr. Carhart's Rules 26(a)(2)(B) report was disclosed. Dr. Carhart has a different view of Plaintiff's injury, but from a biomechanical engineering perspective.2 As an engineer, Dr. Carhart reviewed the

materials disclosed in this case and offered opinions from a biomechanical engineering and injury mechanics perspective. Because Dr. Carhart is qualified to render biomechanical engineering perspectives based on his education and experience, and because his opinions will assist the trier of fact determine what caused Plaintiff's elbow injury, Plaintiff's Motion in Limine must be denied.

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See page 2 of Plaintiff's Motion.

Plaintiff chose not to depose Dr. Carhart and has never asked him questions regarding his expert opinions or the alleged "deficiencies" outlined in Plaintiff's Motion.

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II.

DR. CARHART'S OPINIONS ARE ADMISSIBLE. A. Dr. Michael Carhart is a Qualified Expert Witness. Fed. R. Evid. Rule 702 provides, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto, in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."3 In applying Fed. R. Evid. 702, the district court acts as the "gatekeeper"

and is charged with the responsibility of excluding unreliable expert testimony. See also Advisory Committee Notes, FRE 702 (2000 Amendments) (citing Daubert). "In

considering the admissibility of testimony based on some 'other specialized knowledge,' Rule 702 generally is construed liberally." United States v. Ramsey, 165 F.3d 980, 984 (D.C. Cir. 1999) (admission of DEA agent's testimony was not plainly erroneous where the agent, while not formally qualified as an expert, described his qualifications, including his specialized knowledge, education, skill and experience, before giving testimony). Dr. Carhart is qualified as a biomechanical engineer under Fed. R. Evid. 703.4 He earned a bachelors degree in biomechanical engineering from the Milwaukee School of Engineering and a Ph.D. in bioengineering with a biomechanics emphasis from Arizona State University. Dr. Carhart's "expertise is in the biomechanics of human injury and accident reconstruction, specializing in the areas of musculoskeletal and rigid body

Rule 702, as written, takes into account the requirements set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the cases applying Daubert, including Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999).
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See Dr. Carhart's curriculum vitae, attached hereto as Exhibit 1.

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dynamics, simulation and measurement of human movement, human injury tolerance and occupant kinematics...Dr. Carhart's research includes the biomechanics of normal and pathological posture and walking and the development of dynamic musculoskeletal models of the human body for the analysis of movement and internal forces." Carhart's expertise is directly related to the injury mechanics in issue. In addition, Dr. Carhart also teaches and presents research on biomechanical and engineering topics. He is an Adjunct Professor in the Harrington Department of Bioengineering at Arizona State University and has taught classes in biomechanics, biomedical instrumentation, computer modeling and microcomputer applications in bioengineering. In addition, Dr. Carhart has published over 18 articles ranging from musculoskeletal motion to mechanical and metabolic changes in gait performance. Dr. Carhart has also testified over 16 times in civil and criminal litigation. Dr. Carhart has also put his expertise to work while serving as not only the Managing Engineer at Exponent, but as a Research Scientist at the Arizona BioDesign Institute at ASU and a consultant with Forensic Dynamics, L.L.C. Dr. Carhart is also affiliated with the International Society of Biomechanics, the Institute of Electrical and Electronics Engineers (IEEE) and the IEEE Engineering in Medicine and Biology Society (IEEE-EMBS). Dr. Carhart is clearly qualified as an engineer as shown by his educational achievements, employment, research, and teaching experiences. Based on the foregoing, Dr. Carhart, has more than sufficient expertise in kinetics and the mechanics of the human body to explain how one's elbow can be dislocated when one resists arrest. Further, his testimony in this case presents opinions and expertise that will be of significant assistance to the trier of fact in weighing the evidence on how Plaintiff's injury occurred in this case. Thus, Dr. Carhart should be permitted to testify as an expert under Fed. R. Evid. Rule 702. Dr.

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B.

Dr. Carhart Has Foundation For Expert Opinions. Federal Rules of Evidence, Rule 703 provides, the "facts or data in the

particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted." Included in Dr. Carhart's August 2, 2004 report was a list of the documents Dr. Carhart reviewed (among other things) in drafting his opinions: (1) Phoenix Police Department Report and Supplements, 6/10/02; (2) Phoenix Fire Department Incident History Report and EMS Incident Report, 6/10/02; (3) Medical Records for Theresa August; (4) Color photocopies of photographs taken by the Phoenix Police Department; (5) Color photocopies of photographs taken of Theresa August post-surgery, photographer unknown; (6) Audiotape and Transcript of 9-1-1 call, 6/10/02; (7) Recorded (audio tape) interviews with Theresa August, Sam Hickey and Marcus "Dakota" August, 6/10/02; (8) Employment/Personnel file of Theresa August from Phoenix Union High School; (9) Non-Uniform Interrogatory Responses from Theresa August and Mark August; (10) Defendants' Rule 26(a) Initial Disclosure Statement; (11) Preliminary Hearing Transcript: State of Arizona v. Theresa August; (12) Deposition of Marcus Dakotah August dated June 24, 2004; (13) Deposition of Pamela Hickey dated June 29, 2004; and (14) X-rays of Theresa August. In addition, "telephone interviews were conducted with two of officers who were present at the scene: Officer Monson was interviewed on July 21, 2004, and Sergeant Griffin on July 28, 2004."5 Dr. Carhart reviewed the critical documents

See Dr. Carhart's expert report, page 2, attached hereto as Exhibit 2. "Although we have not yet been able to interview Officers Toby Dunn and Nicholas Lynde, it is my intention to incorporate information provided by these officers into this analysis. Should the information derived from these interviews or future discovery in this matter
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disclosed in this case as the foundation for his expert opinions. Plaintiff claims that Dr. Carhart, a biomechanical engineer, cannot testify regarding the mechanism of Plaintiff's injury. Dr. Carhart stated in his report that: "...the incident that occurred on June 10, 2002, and resulted in an avulsion fracture of the lateral epicondyle and dislocation of August's right elbow was investigated from a biomechanical engineering perspective to evaluate the mechanisms of injury. This evaluation was based on the materials reviewed, the laws of physics, the anatomy and biomechanics of human elbow and literature pertaining to bony and ligamentous injuries of the elbow."6 Dr. Carhart's report also provides opinions based on the facts known to him related to the "anatomy and biomechanics of the lateral epicondyle", the "lateral epicondyle avulsion fracture mechanism", and provided a "biomechanical analysis of August's right elbow injury." Dr. Carhart concludes his report by stating, "based on my background, training and experience in the area of biomechanics; my review of the literature relating to elbow injuries; and materials reviewed to date; I have reached the following conclusions and hold each to a reasonable degree of scientific and biomechanical engineering certainty." He then lists five separate opinions, each supported by the review of

documents provided to him up to the date of his expert disclosure and individual interviews with two of the Defendant officers. Dr. Carhart's opinions are clearly based on appropriate foundational materials.

alter my opinions in this matter, a supplemental report will be issued."
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See page 5 of Dr. Carhart's expert report.

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C.

Daubert v. Merrell Dow Pharmaceuticals, Inc. is Satisfied. In Daubert, the United States Supreme Court made clear that the trial court

must serve a vital "gatekeeping role" in evaluating the admissibility of expert testimony under Rule 702. 509 U.S. at 597. Pursuant to Rule 104(a), a judge must determine whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact in understanding or determining a fact in issue. Id. at 592. In order to qualify as scientific knowledge, an expert's assertions must be derived by the scientific method. Id. at 593-94. The Supreme Court noted five nonexclusive factors which characterize the scientific method and bear on the Court's inquiry: (1) falsifiability -- whether the expert's theory or technique can be tested and proven false; (2) rate of error -- whether a particular technique has a known or potential rate of error; (3) standards -- whether the operation of a particular technique is controlled by adequate standards; (4) peer review -- whether the theory or technique has been subjected to peer review and publication; and (5) acceptance -- whether the theory or technique is generally accepted within the relevant scientific community. Id. at 593-94; see also, United States v. Scholl, 959 F. Supp. 1189, 1191 (D. Ariz. 1997) (identifying falsifiability, error rate, peer review and publication and general acceptance as criteria for evaluating the merit of scientific evidence). Rule 702, as outlined in Daubert, is applied consistent with "the 'liberal thrust' of the Federal Rules and their 'general approach of relaxing the tradition barriers to 'opinion' testimony." Daubert, 509 U.S. at 588, quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988). An expert witness, unlike other witnesses, "is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation," so long as the "expert's opinion [has] a reliable basis in the knowledge and experience of his discipline." Id. at 592; Kumho, 526 U.S. at 148.

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A biomechanical engineer like Dr. Carhart, studies the nature of an injury, evaluates how the body moved, the kind of forces a person would have experienced during the incident giving rise to the injury, and the types of injuries, if any, that are consistent with the forces being applied. Here, Dr. Carhart gave expert opinions in the areas of biomechanical engineering and injury mechanics, all opinions that "will assist the trier of fact to understand the evidence and to determine a fact in issue." These engineering opinions are based on Dr. Carhart's experience, education and knowledge of the engineering discipline. Thus, there is no "novel science" being presented by Dr. Carhart in this case. Moreover, there is not an expert, other than Plaintiff's treating medical physician Dr. Purdy (who is not a biomechanical engineer), who has offered an opinion that Dr. Carhart's biomechanical engineering opinions are false, are unreliable or that they do not have general acceptance within the engineering community. It is clear that Dr. Carhart's expert opinions satisfy Daubert and his expert opinions should be permitted.7 Although Plaintiff disagrees with Dr. Carhart's analysis and opinions as

outlined, this is not a case where the expert's opinions are so unreliable or irrelevant that they should be excluded from trial in an exercise of the Court's gatekeeping function." Vasquez v. City of Phoenix, 2006 WL 2841411 (D. Ariz. 2006). Plaintiff's counsel will have a "full opportunity at trial to criticize [Dr. Carhart's] tests and opinions." Id. III. DR. CARHART'S REPORT LISTS REFERENCE MATERIALS AND RESERVES RIGHT TO SUPPLEMENT. Dr. Carhart's report states that "the foregoing opinions are based upon the available information. I reserve the right to consider any information that may become available at a later date and, if necessary author a supplemental report."8 In addition, Dr.

Defendants respectfully requests that if the Court finds that there is any doubt as to whether Daubert has been satisfied, that the appropriate Daubert hearing be scheduled regarding Dr. Carhart's expert opinions.
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See Dr. Carhart's expert report, page 9.

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Carhart stated, "should this matter proceed to trial, I anticipate using a number of exhibits to illustrate the concepts and opinions expressed in this report. These include diagrams, annotated photographs, and/or 3-dimensional models demonstrating: (1) the general anatomy of the elbow, (ii) the anatomy of the lateral collateral ligament complex and the lateral epicondyle of the humerus, (iii) muscle and ligamentous attachment points on the lateral epicondyle, (iv) injury mechanisms associated with lateral epicondyle avulsion, and (v) potential injury mechanisms in this case. The preparation of these exhibits is not yet complete, but I reserve the right to supplement with these materials at a later date."9 Also included in Defendants' Eighth Supplemental Disclosure Statement, dated August 2, 2004, was a reservation of rights to supplement Dr. Carhart's expert opinions based on the disclosure of additional information: "This disclosure is based on the records in Defendants' possession at the present time and the records produced by Plaintiffs' counsel thus far. To the extent that releases or records have not been provided or received, Defendants reserve the right to supplement this disclosure."10 Thereafter, Defendants produced the information Dr. Carhart referenced in his expert report and also list of reference materials on February 28, 2005, within the discovery deadline. As a result, the items were timely disclosed. IV. THE PHOTOGRAPHS WERE TIMELY DISCLOSED. Plaintiff objects to photographs, bates numbered AUGUST2498-2501, that were disclosed in Defendants' Twenty-First Disclosure Statement on February 28, 2005. These documents were produced within the discovery deadline (and were identified in Dr. Carhart's expert report dated August 2, 2004). Accordingly, these documents should not be barred from evidence at trial.

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See Dr. Carhart's expert report, page 1. See Eighth Supplemental Disclosure Statement, attached hereto as Exhibit 3.

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V.

CONCLUSION Based on the foregoing, Defendants respectfully request that Plaintiff's

Motion in Limine No. 1 Re: Motion to Exclude Testimony of Michael Carhart, Ph.D. be denied. DATED this 29th day of November, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson Electronically filed and served this 29th day of November, 2006, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

BY

s/Peggy Sue Trakes

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