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Babbs v. Block

United States District Court, W.D. Missouri, Western Division

June 1, 2017

RODNEY BABBS, JR., Plaintiff,
v.
BRYAN BLOCK, Defendant.

          ORDER GRANTING IN PART DEFENDANT'S MOTION TO EXCUDE EXPERT TESTIMONY

          GREG KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This lawsuit arises from a shooting outside of a nightclub. A bouncer at the club, Plaintiff Rodney Babbs, Jr. (“Plaintiff”), ejected an off-duty police officer, Defendant Bryan Block (“Defendant”), from the premises. Shortly afterward, a scuffle occurred outside the club during which Defendant shot Plaintiff.

         Now before the Court is Defendant's Motion to Exclude Expert Testimony (Doc. 123). Defendant seeks to exclude the testimony of Plaintiff's experts Dr. Steven Simon, M.D., Rph[1]; Mr. Michael Dreiling; and Dr. William Gary Baker, Ph.D. For the following reasons, the motion is GRANTED IN PART.

         Standard

         When the admissibility of expert testimony is challenged, the district court must make “a preliminary determination of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). The party seeking to introduce the expert's testimony bears the burden of establishing its admissibility by a preponderance of the evidence. Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001).

         Under Federal Rule of Evidence (“FRE”) 702, a witness may give an expert opinion if the following conditions are met:

(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.

         In other words, the proponent must show that the expert's opinions are relevant, the expert is qualified to offer them, and “the methodology underlying his conclusions is scientifically valid.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757-58 (8th Cir. 2006). Doubts should be resolved in favor of admissibility. Id. at 758.

         The Eighth Circuit has repeatedly observed that, as a general rule, “‘the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, '” but “‘if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury, it must be excluded.'” Lawrey v. Good Samaritan Hosp., 751 F.3d 947, 952 (8th Cir. 2014) (quoting Neb. Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 415 (8th Cir. 2005)).

         Discussion

          I. Most of Dr. Simon's opinions are inadmissible.

         Dr. Simon is a medical doctor who specializes in physical medicine, rehabilitation, and pain management and pain disorders. Plaintiff retained him to testify in this case, and he wrote two short letters which serve as his expert reports.

         A. Dr. Simon's reports.

         1. The September 30, 2016, report.

         The first letter is dated September 30, 2016, and titled “Independent Medical Evaluation - Part 2.” It is based on Dr. Simon's interview and physical examination of Plaintiff. The letter begins with the following summary of the event and Plaintiff's symptoms:

He reports being a bouncer in a nightclub and at that time was outside the club with an unruly patron and he was attempting to subdue the patron when the patron pulled a gun and shot him twice. One shot was apparently abdomen through the back, the other was a back through the abdomen or the back through the side. Regardless, these were clean shots which did not impair him to the point that he was not able to subdue the man and ultimately [sic], then went back into the shop and was sent to the ER. At the ER, his wounds were dressed. Apparently, he was given the opportunity to stay in the hospital for observation or leave. He chose to leave and he returned the next day to the emergency room for a checkup. He has had no surgery but did have a seroma develop under one of the abdominal wounds and had this drained.
He has had several problems since the shooting itself which includes pain shooting down both legs to his feet. He had a lot of numbness in his feet that has become somewhat better and he has had a lot of stomach cramps. This occurs while he is driving and this occurred a lot until the seroma was removed and then it became somewhat better. He is having subconscious thoughts and feelings that bad things will happen to him in that someone is going to “mess him up good” and these thoughts occur at various times, including today when filling out forms for us. He has never had this happen before.
He has a lot of hip pain getting in and out of cars. He also has pain that shoots from his hip to his low back pain and when he is going to get up from a car is when that type of pain happens and the pain will also go into his legs. He lets that pain occur and then he will experience that pain for several steps before it ultimately goes away.
He has been to the ER recently for chest pain and was told after x-ray that he has a number of bullet fragments left in his body that is causing that pain.

Rep. dated Sept. 30, 2016, at 1-2 (Doc. 123-2). This is followed by a “Past Medical History” section which states:

Negative for any of this type of problem. He did have some problems with hypertension and has had a hearing loss developing in one ear and now the other for which he uses a hearing aid. He took a lot of over-the-counter Aleve for his pain and had some gastric problems and had to quit taking that. Now he uses over-the-counter products, either acetaminophen or aspirin products.

Id. at 2. It does not mention a 2006 episode when Plaintiff was also shot twice. The letter also contains a three-sentence social history and a few paragraphs describing Dr. Simon's physical exam and findings.

         The letter concludes with three paragraphs stating Dr. Simon's opinions and the basis for them:

While I have not had the opportunity to review the records in this case, it is clear this patient sustained gunshot wounds. These wounds are visible and it is consistent that he would have retained fragments to one of the bullets where no exit wound was found. This is consistent with an irritation to the nerve outflow of most likely the lumbar plexus of nerves as irritated by the wound itself. It is unclear if the decrease in girth of the right leg is part of that process. Also, the patient reports he has had some balance issues where he feels off balance and it is possible that this is a proprioceptive abnormality but we would have had to see injury to the spine by bullet and I have not had the opportunity to review those records at this time.
It is worthwhile to note that the patient has four-extremity discomfort. He has numbness in his forearms. He has pain in the right upper chest and midchest region. He has pain across the buttock and pelvic brim area and a lot of bilateral lower extremity numbness, paresthesias and aching which include the feet and the mid to lower legs.
I will be adding to the opinions following the full review of records. Please let me know if I can be of further ...

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