Free Motion in Limine - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA ) Case No. CV03-1892 PHX ROS ) ) ) PLAINTIFF'S MOTION IN LIMINE ) NO. 1 RE: MOTION TO EXCLUDE ) TESTIMONY OF MICHAEL ) CARHART, Ph.D. Plaintiffs, ) ) vs. ) CITY OF PHOENIX, a body politic of the State ) of Arizona; OFFICER LYLE MONSON and ) JANE DOE MONSON, husband and wife; ) OFFICER NICHOLAS LYNDE and JANE DOE ) LYNDE, husband and wife; OFFICER TOBY ) DUNN and JANE DOE DUNN, husband and ) wife; OFFICER T. HEDGECOKE and JANE ) DOE HEDGECOKE, husband and wife; and R. ) GRIFFIN and JANE DOE GRIFFIN, husband ) ) and wife ) Defendants. ) ____________________________________ ) Plaintiff Teresa August moves to exclude the testimony of Defendants' expert, Michael TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Carhart, Ph.D., a biomechanical engineer. Dr. Carhart's conclusions are speculative, he is

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unqualified to render the opinions stated in his report, and his opinions are factually and scientifically unsupported. Mrs. August further moves to preclude the photographs, charts and diagrams Defendants withheld or waited to create until after the deposition of Plaintiffs' expert, Dr. Beth Purdy.

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I.
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INTRODUCTION

On June 10, 2002, Phoenix police officers brutally dislocated Mrs. August's elbow; the force which wrenched her joint out of socket was strong enough to cause an "avulsion" of the elbow's lateral collateral ligament, that is, the officers ripped bone fragments from Mrs. August's arm bone where the ligament attaches, much like a clump of dirt is ripped from the earth when pulling weeds. Mrs. August is a 68-year-old grandmother, standing only 5'-3"

tall. After her arrest, Richard Seligson, M.D., provided emergency room treatment for Mrs. August's elbow. Dr. Seligson began working in emergency medicine in 1974, became board certified in emergency medicine in 1988, and his entire practice has been in the emergency

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department (EXHIBIT 1, September 9, 2004 deposition of Richard Seligson, M.D. at 20:711 12 13 14 15 16 17 18

24). During his practice, Dr. Seligson has seen approximately 6000 patients who were in police custody (EXHIBIT 1 at 23:19-21). In Dr. Seligson's experience, it is common for handcuffed patients to complain about shoulder and wrist injuries (EXHIBIT 1 at 19:4-6, 30:14-16). However, in response to questioning about "complaints of pain relative to a

handcuffing procedure," Dr. Seligman stated, "I have never seen ­ I don't recall seeing an elbow dislocation before." (EXHIBIT 1 at 30:3-19). Dr. Seligman also stated that a person would not dislocate her elbow through a volitional act:

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Q:
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Objection1: A: Q: A:

If somebody is just holding my hand behind my back but not otherwise exerting any force, am I generally capable of exerting enough counterforce to dislocate my elbow? Form and foundation. No. I have not seen that occur. Why is that? Because of pain. People have enough power in their muscles literally to pull their bones apart, what stops them is pain, okay. The reason why you can't dislocate your own elbow just by pulling and pushing is because it would hurt too much and the pain would stop you.

Kathleen Wieneke, counsel for defendants.

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(EXHIBIT 1 at 35:24 ­ 35:11). Plaintiff's expert Beth A. Purdy, M.D., board certified by the American Board of Orthopedic Surgery with a specialty in elbows, opines that the officer's use of force on Mrs. August's elbow and wrist dislocated the elbow, and Mrs. August's grandson Sam Hickey caused no injury when he grabbed his grandmother's elbow during

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their momentary physical interaction that occurred about a half-hour before the officers
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dislocated Mrs. August's elbow (EXHIBIT 2, opinion and CV of Beth A. Purdy, M.D.) II. DR. CARHART'S OPINION AND QUALIFICATIONS

Dr. Carhart's signed opinion, dated August 2, 2004, the deadline for disclosure of Defendants' expert opinions, contains five listed conclusions, including: 1. A description of Mrs. August's elbow injury; A description of the "mechanism" of the injury, including some unspecified combination of the loading conditions that could have cause the injury;

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2.
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3.
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A description of the "events" that could have "loaded" Mrs. August's elbow, including her earlier interaction with her grandson;

4.
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A disclaimer, that the "exact timing of August's injury, the loading event(s) responsible for her injury, and her arm posture at the time of the injury cannot be established based on the available information." Despite not knowing

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exactly how the injury occurred, Carhart proceeds to pronounce, "If her injury
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occurred as she struggled to prevent police officers from handcuffing her, it
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most likely was the result of her volitional muscle contractions and body
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motions while her arms were constrained by police officers"; and
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5.
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Mrs. August would not have been injured if she had not been resisting arrest.

Dr. Carhart reaches the remarkable, speculative conclusions in (4) and (5) despite no apparent education, training or experience in elbow injuries or injuries sustained in human-

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on-human conflict.
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Dr. Carhart predicates his conclusions on a report that details

Defendants' version of events, the anatomy of the elbow, and the forces that may have been exerted on the elbow, causing the severe dislocation. Dr. Carhart provides no factual or scientific basis for his conclusion that Mrs. August's injury was a direct result of her resistance and not a result of excessive force by the officer. Dr. Carhart's report also lists several "exhibits" he anticipates using at trial (does not say whether the exhibits played any role in aiding at his opinion), but the exhibits were not produced until February 28, 2005, or almost seven months after the expert opinion deadline. The disclosed photographs include Dr. Carhart manipulating a skeletal model (EXHIBIT 3,

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photographs of Dr. Carhart and model, bates labels AUGUST 2498-2501). The events that
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produced the injury are clearly in dispute and clearly the subject of Dr. Carhart's testimony, and therefore, the demonstrative photographs are improper2. As further evidence of the lack of foundation for his opinion, Dr. Carhart only prepared the demonstrative photographs after consideration of Dr. Purdy's rebuttal opinion, in which she states, "Varus force does not cause an elbow dislocation or rupture of the lateral collateral ligament complex3....The nature of the dislocation Mrs. August suffered is one involving an axial compression force to the elbow as it flexes simultaneous with a valgus load and supination force." In other words, Dr. Purdy said Carhart was just plain wrong, and so he went and tried to fix his opinion with a

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photographed demonstration which attempted to match what the officers said, but which
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conflicted with the physical evidence identified by Dr. Purdy by her review of the medical records and her surgery to the elbow.

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Although they were also produced late, Plaintiff does not object to the elbow and arm illustrations disclosed by Defendants, bates labels AUGUST 2502-05. Dr. Carhart described Mrs. August's injury as a "varus displacement."

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According to Dr. Carhart's CV, his technical expertise includes motor vehicle
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accidents, spinal cord injuries, walking and gait (EXHIBIT 4, Michael R. Carhart, Ph.D. biography). Dr. Carhart's current employer, Exponent, carefully avoids using the magic word "litigation" on its web page, but its services, and its "ability, when necessary, to focus this knowledge in extremely short time frames," obviously includes services as litigation experts (EXHIBIT 5, Exponent web page). Dr. Carhart's previous employer, Forensic Dynamics, LLC, states that it "provides technical answers to assist you in resolving legal issues." (EXHIBIT 6, Forensic Dynamics web page). Although he may conduct some research, Dr.

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Carhart is a professional expert witness. Nothing in the submitted documentation indicates
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Dr. Carhart has any training or experience regarding extremity joints, including elbows; his own list of publications has nothing to do with the mechanics of injury to elbows. The "Deposition, Arbitration, and Trial Testimony" documentation provided by Dr. Carhart identifies nine cases or disputes that involved a civil tort or criminal prosecution arising from a motor vehicle accident, a fall down a stairway and a trip over a defective median or curbing in a parking lot (EXHIBIT 7, Michael Carhart, Ph.D., Deposition, Arbitration, and Trial Testimony). None of these cases involved claims of excessive force by police officers or assault, and none suggest even remote involvement with study, analysis or

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understandings of the forces associated with an armband hold.
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On February 28, 2005, defendants disclosed a list of "Reference Materials" allegedly relied on by Dr. Carhart in coming to his opinions. Not surprisingly, the list itself, however, is not referenced in Dr. Carhart's opinion and nothing on the document links it to Dr. Carhart or his employer (EXHIBIT 8, "Reference Materials"). (This is not surprising because he only procured and reviewed these resources after he saw Dr. Purdy's opinion report dated September 2, 2004.) Dr. Carhart also has not indicated how he applied two lesson plans

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from the Arizona Peace Officer Standards and Training Board entitled "Handcuffing" and
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"Control Techniques" in his opinion. Assuming that the list is what defense counsel represents it to be, the titles of the books and articles indicate that they relate to general anatomy, elbow anatomy, general musculoskeletal injury and elbow injury or dislocation ­ the subject which are in the proper domain of an orthopedic surgeon like Dr. Purdy, and not in the domain of a litigation expert like Dr. Carhart. None of the materials appear to address the dynamics of a police arrest or interpersonal conflict, much less the forces involved. This is unsurprising, because: Most elbow dislocations do not occur like this [Mrs. August's dislocation]. Most elbow dislocated [sic] occur from falls, and a fall on a non-locked partially flexed arm with the wrist and with the forearm in a particular law levers the elbow joint out and it usually goes the opposite way or somewhat opposite to the way this particular patient's elbow went. [Mrs. August's] elbow went toward the body, what we call medially. Most elbow dislocations are laterally and posteriorly. So this was a somewhat unusual format for an elbow dislocation. (EXHIBIT 1, 21:9-18, Dr. Seligson).

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III.
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DR. CARHART'S OPINIONS ARE SPECULATIVE.

Dr. Carhart's opinions are speculative and therefore are inadmissible as a matter of law. "[N]othing in Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. General Elec. Co. v. Joiner, 522 U.S. 136, 147, 118 S.Ct. 512, 139 L.Ed. 508 (1997). A trial court may exclude evidence when it finds that "there is simply too great an analytical gap between the data and the opinion proferred." Id. Domingo v. T.K, 289 F.3d 600, 607 (9th Cir. 2002). See also Dunn v. Sandoz

Pharmaceuticals Corp., 275 F.Supp.2d 672, 681 (M.D.N.C. 2003) ("Opinions merely
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expressing `possibilities' do not suffice to support the admissibility that something occurred in
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a particular way are not enough, as a matter of law, for a jury to find it probably happened Case 2:03-cv-01892-ROS

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that way.") Keeping out "speculative" and "junk" expert testimony is an important function of
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the court, "to keep unworthy expert testimony from confusing a jury." In re Bonham, 251 B.R. 113 (D. Alaska 2000). In his opinion, Dr. Carhart admits that he does not know when Mrs. August's injury occurred, what exactly dislocated Mrs. August's elbow, or the position of Mrs. August's elbow at the time of dislocation. Yet Dr. Carhart claims to know that it was Mrs. August, and not the officer, who caused the traumatic and extremely painful injury. Other than relying upon the assertion of the Defendants that they did not do anything wrong, Dr. Carhart provides no factual, inferential, logical or scientific support for his jump to the speculative conclusion.

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Therefore, his testimony should be barred.
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IV.

DR. CARHART IS NOT QUALIFIED TO RENDER THE OPINIONS STATED IN HIS REPORT.

An expert must be qualified to give the opinions specifically rendered: there must be "a link between [the expert's] knowledge and the specific subjects addressed in the [expert's]

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Report." Recreational Developments of Phoenix, Inc. v. City of Phoenix, 220 F.Supp.2d
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1054 (D.Ariz. 2002) (citing Diviero v. Uniroyal Goodrich Tire Co., 919 F.Supp. 1353, 1355 (D.Ariz. 1996) ("[A] court may exclude an expert who does not have the appropriate [background] to offer a helpful opinion with regard to controverted issues.").) A. Dr. Carhart's Opinions are Outside His Established Area of Expertise.

Nothing in Dr. Carhart's litigation, trial experience or research, evidenced by the publications he authored, indicate any qualifications to render the opinions expressed in his report. Dr. Carhart's expertise can be broadly defined as biomechanical engineering in two areas: injuries related to motor vehicle accidents and injuries or behavior related to walking

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and gait. Neither of these areas are even remotely related to the loading and dislocation of
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elbows, police conduct or interpersonal struggle. He is particularly unqualified to opine that Case 2:03-cv-01892-ROS

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Mrs. August's "volitional" movements caused her injuries, and that if she had not been
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resisting arrest, she would not have been injured. Even if one disregards the speculative nature of Dr. Carhart's opinion regarding the specific event and mechanism that caused Mrs. August's injury as discussed supra, and the unreliableness of his conclusions as discussed infra, Dr. Carhart's opinion is suspect because it is completely unrelated to his prior work and litigation experience. B. Dr. Carhart's Opinions Were Not Developed Independently of this Litigation.

One very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony, as few experts appear in court merely as an eleemosynary gesture. But in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist's normal workplace is the lab or the field, not the courtroom or the lawyer's office. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (footnote omitted) (hereinafter referred to as "Daubert II"). In Grant v. Bristol-Myers v.

Squibb, 97 F.Supp.2d 986, 991 (D.Ariz. 2000), the court cited Daubert II and excluded the testimony of an expert with a Ph.D. in physical chemistry, in part because he was not a medical doctor and did not develop his opinions independent of the litigation. In rejecting the

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claim that an expert witness developed his opinions outside the context of litigations, the
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Ninth Circuit noted that: although [the expert] published the 1984 article prior to this litigation, he was at that time already a professional plaintiff's witness. It is not unreasonable to presume that [the expert's] opinion on [the issue] was influenced by a litigation-driven financial incentive. Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594 (9th Cir. 1996) (causation

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expert's testimony inadmissible). After recognizing that the expert's failure to subject his Case 2:03-cv-01892-ROS

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opinion to peer review or to develop his opinion outside of litigation was not dispositive on the
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issue of admissibility, Lust also quoted Daubert II, explaining that the expert:

...must explain precisely how [he] went about reaching [his] conclusions and point to some objective source... ...to show that [he has] followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in [his] field. Lust at 597. See also Cabrera v. Cordis Corp., 134 f.3d 1418, 1423 (9th Cir. 1998) (doctor's testimony excluded because connected with litigation, no supporting research and no precise explanation of expert's objective source or the scientific method followed). Here, Dr. Carhart cannot explain how his demonstration with the skeleton and reliance

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of the reference materials contributed to his reaching his opinion because these were
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generated well after his August 2, 2004 report and are not even mentioned in the report. Unlike Dr. Carhart, Dr. Purdy is a treating orthopedic surgeon who focuses her practice on elbows. She is not a professional expert, and did not perform specialized research far

beyond her area of expertise. Dr. Carhart has not provided any explanation, precise or otherwise, of how he "went about reaching his conclusions." Based on the article and book titles, Dr. Carhart's "Reference Materials" are of a subject matter totally different than all of Dr. Carhart's previous work, expert witness work and research. He clearly just went to the library and came up with opinions to earn his expert witness fee.

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V.
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DR. CARHART'S OPINIONS ARE FACTUALLY AND SCIENTIFICALLY UNRELIABLE.

Even if the Court were to determine that Dr. Carhart is qualified to render any opinions regarding the causation of Mrs. August's injuries, his report and his opinion still must be excluded as unreliable. None of the factors listed in Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) appear to
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(1)
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(2) (3) (4)

Whether the theory or method employed by the expert has gained general acceptance in the relevant scientific community; Whether the method has been subject to peer-review and publication; Whether the method employed can be tested; and Whether the known or potential rate of error and the existence and maintenance of standards controlling the technique are acceptable.

Grant v. Bristol-Myers Squibb, 97 F.Supp.2d 986 (D.Ariz. 2000) (citing Daubert, 509 U.S. at
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595-97, 113 S.Ct. at 2798).
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An expert must verify the validity and reliability of the data upon which he relies before adopting that data into his opinion. O2 Micro Int'l Limited v. Monolithic Power Systems, Inc., 420 F.Supp.2d 1070, 1088 (N.D.Calif. 2006). The court must assess the underlying basis for the opinions. Dr. Carhart's report fails to cite any specific reference materials, much less the "Reference Materials" list produced several months after his opinions, and after he reviewed Dr. Purdy's report, or any of the data derived therefrom. As a result: [T]he Court has no means of assessing the reliability of this foundational material or the conclusions [the expert] purports to derive from it. See Olsen v. Marriott Int'l, Inc., 75 F.Supp.2d 1052, 1057 (D.Ariz. 1999) (excluding expert report in part because it did not include full citations to studies citied therein or otherwise establish the reliability of the underlying studies). Recreational Developments at1061. In considering a different report in the same

matter, Recreational Developments points out, "the Report's conclusions are not grounded in any apparent methodology, reliable or otherwise.... [The expert] nowhere sets forth his plan

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of investigation, data collection, or analysis. Consideration of the "Reference Materials" does
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not change the result. The list of articles and books "suffers the same deficits ­ incomplete citation and no evidence regarding reliability." Olsen v. Marriott Int'l, Inc., 75 F.Supp.2d 1052, 1057 (D.Ariz. 1999). One additional factor to consider in understanding just how unreliable Dr. Carhart's opinions are is seen in the timing of the disclosure of certain materials. Dr. Carhart issued

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his report on August 2, 2004, the deadline for Defendants' expert disclosure. Missing from
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his opinion was his list of "Reference Materials," which were not provided until February 28, 2005, as well as the photographs of the varus force demonstration with the skeleton. As pointed out by Dr. Purdy, Dr. Carhart cannot distinguish his "varus" from his "valgus," a manifestation of the unreliability of Dr. Carhart's opinion. VI. THE PHOTOGRAPHS AND GRAPHICS DISCLOSED ON FEBRUARY 28, 2005 SHOULD BE EXCLUDED

Although he was obliged to include all relevant documentation with his report, Dr. Carhart did not disclose any photographs until nearly seven months after Defendants' expert opinion deadline. Defendants disclosed the documents too late to have them admitted into evidence. If they were intended to be a part of Dr. Carhart's testimony, they should have been included with the report. Dr. Carhart is using Dr. Purdy's expertise and testimony to educate himself and revise his opinion to cure his deficiencies. VII. CONCLUSION

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Dr. Carhart is a biomechanical engineer whose career as a professional expert covers
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motor vehicle accidents, slip or trip and falls.

Nothing in his education, training or

background qualifies him as an expert on the forces that occur during the handcuffing procedure, or justifies the admission of speculative and unreliable testimony. Therefore, Plaintiff Teresa August moves the Court in limine to preclude the testimony of Dr. Michael Carhart. Plaintiff further moves the Court to exclude the late-disclosed photographs featuring Dr. Carhart's manipulation of a model.

RESPECTFULLY SUBMITTED this 17th day of November, 2006.
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TREON & SHOOK, P.L.L.C.
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By:

s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE
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I hereby certify that on November 17, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: [email protected]; [email protected]

Kathleen Wieneke: [email protected]; [email protected]; [email protected] Jennifer L. Holsman: [email protected]; [email protected]

Randall H. Warner: [email protected]; [email protected]

By:
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s/ Aly Shomar-Esparza

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