United States District Court, W.D. Missouri, Western Division
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
EXCUDE EXPERT TESTIMONY
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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.,
Mr. Michael Dreiling; and Dr. William Gary Baker, Ph.D. For
the following reasons, the motion is GRANTED IN PART.
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).
Federal Rule of Evidence (“FRE”) 702, a witness
may give an expert opinion if the following conditions are
(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.
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
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)).
I. Most of Dr. Simon's opinions are
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
Dr. Simon's reports.
The September 30, 2016, report.
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
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.
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