United States District Court, E.D. Virginia, Richmond Division
BENJAMIN M. ANDREWS, Administrator of the estate of Zachary Tuggle, Plaintiff,
SHERIFF C.T. WOODY, et al., Defendants.
Hannah Lauck United States District Judge.
matter comes before the Court on three motions filed by
Plaintiff Benjamin M. Andrews, Administrator of the Estate of
Zachary Tuggle ("Andrews"): (1) Andrews's
Motion to Exclude Opinions of Jack Daniel, M.D. (the
"Motion to Exclude Dr. Daniel"), (ECF No. 69); (2)
Andrews's Motion to Exclude Imp[ro]per Medical Standard
of Care and Proposed Causation Opinions of Nurse Allison Rego
Ernest (the "Motion to Exclude Nurse Ernest"), (ECF
No. 73); and, (3) Andrews's Motion to Exclude Opinions of
William J. Brady, M.D. (the "Motion to Exclude Dr.
Brady"), (ECF No. 71), (collectively, the "Motions
to Exclude"). Defendants Naphcare, Inc., Demetrice
Smith, Tracy Turner, Gwen Drake, Cecelia Faison, and Khairul
Emran (collectively, "Defendants") responded to all
three motions, (ECF Nos. 82, 83, 84), and Andrews replied,
(ECF Nos. 85, 86, 87).
Court heard oral argument on May 30, 2018. Neither party
chose to call any witnesses. Accordingly, the matters are
ripe for disposition. For the reasons that follow, the Court
will: (1) grant the Motion to Exclude Dr. Daniel; (2) grant
the Motion to Exclude Dr. Brady; and, (3) grant the Motion to
Exclude Nurse Ernest.
Factual and Procedural Background
action before the Court arises from Zachary Tuggle's
incarceration at the Richmond City Justice Center
("RCJC") awaiting trial. Tuggle, who had a
diagnosed seizure disorder at the time he entered the RCJC,
experienced a fatal seizure while incarcerated there. Andrews
thereafter filed a Complaint against various defendants
alleging, on behalf of Tuggle's estate, violations of the
Fourteenth Amendment,  state law gross negligence, and medical
negligence. After Defendant Sheriff C.T. Woody filed a Motion
to Dismiss, Andrews filed his Amended Complaint. The Court
held an Initial Pretrial Conference and scheduled a jury
trial to begin on May 9, 2018.
March 5, 2018, upon motion by the parties, the Court
dismissed Sheriff C.T. Woody and Charles Armstrong as
defendants from this action. Only Defendants remain. After
granting several joint motions for extensions of time, which
ultimately impacted the scheduled trial date, the Court
continued the jury trial and set a hearing date and a
briefing schedule for dispositive and evidentiary motions.
following causes of action, articulated in the Amended
COUNT IV: Medical Negligence Claim against
Demetrice Smith, Tracy Turner, Gwen Drake, Cecelia Faison,
and Khairul Emran;
COUNT V: Vicarious Liability Claim against
Naphcare, Inc., based on the negligence of Demetrice Smith,
Tracy Turner, Gwen Drake, Cecelia Faison, and Khairul Emran;
COUNT VI: Section 1983 Claim against
Demetrice Smith, Tracy Turner, Gwen Drake, Cecelia Faison,
and Khairul Emran for Deliberate Indifference to Tuggle's
Serious Medical Needs.
to Federal Rule of Civil Procedure 26(a)(2)(B),
as required by the Initial Pretrial Order, Defendants filed
their expert witness designation on March 22, 2018,
designating four expert witnesses. (ECF No. 67.) On April 9,
2018, Andrews timely filed the Motions to Exclude.
Rule of Evidence 702 "imposes a special obligation upon
a trial judge to 'ensure that any and all [expert]
testimony ... is not only relevant, but reliable.'"
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147
(1999) (quoting Daubert v. MerrellDow Pharms., Inc.,
509 U.S. 579, 589 (1993) (second alteration in original)).
"'There are many different kinds of experts, and
many different kinds of expertise.' The fact that a
proposed witness is an expert in one area, does not ipso
facto qualify him [or her] to testify as an expert in
all related areas." Shreve v. Sears, Roebuck &
Co., 166 F.Supp.2d 378, 391 (D. Md. 2001) (quoting
Kumho Tire, 526 U.S. at 150).
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.
Fed. R. Evid. 702. Rule 702's requirement "that the
evidence or testimony '[help] the trier of fact to
understand the evidence or to determine a fact in
issue'" goes primarily to relevance.
Daubert, 509 U.S. at 591 (quoting Fed.R.Evid. 702)
(noting that expert testimony must be relevant).
experiential testimony does not rely on the scientific
method, "this does not lead to a conclusion that
'experience alone-or experience in conjunction with other
knowledge, skill, training or education-may not provide a
sufficient foundation for expert testimony. To the contrary,
the text of Rule 702 expressly contemplates that an expert
may be qualified on the basis of experience.'"
United States v. Wilson, 484 F.3d 267, 274 (4th Cir.
2007) (quoting Fed.R.Evid. 702 advisory committee's note
to 2000 amendment). Thus, although "a district
court's task in examining the reliability of experiential
expert testimony is therefore somewhat more opaque, " to
be qualified under Rule 702, "an experiential expert
witness [must] 'explain how [his or her] experience leads
to the conclusion reached, why [his or her] experience is a
sufficient basis for the opinion, and how [his or her]
experience is reliably applied to the facts.'"
Id. (quoting Fed.R.Evid. 702 advisory
committee's note to 2000 amendment).
determining whether proffered expert testimony is
sufficiently reliable so as to assist the trier of fact,
Daubert suggests that courts consider several
non-dispositive factors: (1) whether the expert's
methodology can be 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) whether
the theory or technique has gained general acceptance within
the relevant scientific community. Daubert, 509 U.S.
at 593-94. This analysis applies to all proffered specialized
knowledge, not solely scientific expert testimony. Kumho
Tire, 526 U.S. at 141. "Under [Federal Rule of
Evidence] 104(a),  the proponent of the expert testimony must
establish the admissibility of the testimony by a
preponderance of the evidence." Lee v. City of
Richmond, No. 3:12cv471, 2014 WL 5092715, at *2 n.2
(E.D. Va. Sept. 30, 2014).
Analysis: The Court Will Exclude the Opinion Testimony of Dr.
Daniel's report and opinions must be excluded because he
articulates no principles or methods on which he relied to
reach his conclusions, rendering his report noncompliant with
Rule 26. The failure to articulate any principles or methods
also makes his opinions unreliable and excludable under Rule
702(c) and (d). Further, Dr. Daniel seeks to offer testimony
on the weight of the evidence, making his opinions unhelpful,
irrelevant, and potentially confusing, and thus excludable
under Rule 702(a) and Rule 403. Defendants' contentions
otherwise do not prevail. For the reasons outlined below, the
Court will grant Andrews's Motion to Exclude Dr. Daniel.
Dr. Daniel's Report Fails to Comply with Rule
initial matter, the Court could exclude Dr. Daniel's
testimony because, in violation of the federal rules, the
expert report Defendants submitted fails-on its face-to
comply in any meaningful way with the standards of Federal
Rule of Civil Procedure 26(a)(2)(B). Dr. Daniel's report
offers conclusions in three paragraphs. His report contains
simply "conclusions offered without any explanation as
to [his] bases or reasoning. That, of course, runs afoul of
the provisions of [Rule] 26(a)(2)(B)." Lee,
2014 WL 5092715, at *11, n.13.
three paragraphs of his report, Dr. Daniel offers the
(1) "Mr. Tuggle's death is consistent with cardiac
arrest secondary to respiratory arrest as a result of airway
obstruction from aspiration of food into the lower
(2) "[T]here is no evidence either grossly or
microscopically in the lungs or airways to suggest that there
was any chemical exposure from ammonia to these
(3) "The edema ... in [Tuggle's] lungs is readily
consistent with aspiration of food/emesis."
(4) "There is no evidence to suggest that there was ever
any large amount of blood present as is described in the EMS
report authored by Samantha Bako
(5) "[A]lthough other eyewitnesses described the
presence of blood, the amount of blood is only described
as a large volume by paramedic Bako."
(6) "[B]ased on the pathology, there is no indication of
any source of a large volume of blood. The GI tract is free
of any sources of bleeding or significant accumulations of
blood, and the lungs do not show evidence of bleeding. The
only other place that could have been a blood source is the
oral-pharynx or nose, and no hemorrhagic lesions were
identified at autopsy."
(7) "[T]he likely explanation for the blood is either
that the oral-pharynx and/or naso-pharynx may have been
injured during resuscitative efforts (to include insertion of
the King airway or previous intubation efforts), or from an
impact of [Tuggle's] face with a hard surface."
(8) "Although it is unclear where the blood came from,
the evidence does not establish that a large volume of