NEW ORLEANS – A Louisiana federal judge has thrown out a motion in limine which sought to exclude testimony from a doctor concerning a traumatic brain injury a plaintiff allegedly sustained, during her 2022 encounter with a Jefferson Parish Sheriff’s Deputy.
On June 6, U.S. District Court for the Eastern District of Louisiana Judge Susie Morgan denied a motion to exclude the testimony of Dr. Najeeb Thomas, in a civil rights action brought by Shantel Arnold against Jefferson Parish Sheriff Joseph P. Lopinto III and Jefferson Parish Sheriff’s Deputy, Julio Alvarado.
“On Sept. 16, 2022, plaintiff sued defendants under federal and state law for alleged violations of her civil rights during a 2021 incident. In her complaint, plaintiff alleges Deputy Alvarado responded to a call, engaged plaintiff, then twisted her arm, grabbed her hair, lifted her off the ground and slammed her against the ground. The incident was captured on video and widely circulated in local and national media. Following the encounter, plaintiff was not cited for any violations nor charged with any crimes,” Morgan stated.
“On May 7, 2024, plaintiff filed this motion in limine, seeking to exclude Dr. Najeeb Thomas’s testimony concerning the traumatic brain injury plaintiff allegedly sustained during her encounter with Deputy Alvarado. Plaintiff argues Dr. Thomas’s testimony is unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., and, alternatively, the probative value of his testimony is substantially outweighed by the danger of confusion or undue prejudice, as forbidden by Federal Rule of Evidence 403. Defendants filed their response in opposition on May 14, 2024.”
Morgan explained that “the reliability of expert testimony is determined by assessing whether the reasoning or methodology underlying the testimony is scientifically valid”, with five non-exclusive factors to make that determination being agreed upon in Daubert: (1) Whether the expert’s theory can or has been tested; (2) Whether the theory has been subject to peer review and publication; (3) The known or potential rate of error of a technique or theory when applied; (4) The existence and maintenance of standards and controls; and (5) The degree to which the technique or theory has been generally accepted in the scientific community.
“Dr. Thomas is a neurosurgeon with more than 20 years’ experience. Plaintiff does not challenge Dr. Thomas’s qualifications as an expert in this area. Defendants retained Dr. Thomas to offer his expert opinion on whether the actions of Deputy Alvarado could have caused the TBI plaintiff alleges she suffered as a result of the incident. Dr. Thomas reviewed dozens of plaintiff’s medical records dating back to 2010. These records covered a wide range of medical care provided to plaintiff, including emergency medicine, ophthalmology, general medicine and routine care, gynecology and neurology. Dr. Thomas also reviewed x-rays corresponding to certain of plaintiff’s medical records and videos of the alleged incident at the center of plaintiff’s suit,” Morgan said.
“As relevant to plaintiff’s motion, Dr. Thomas concludes in his report that the ‘periventricular white matter changes’ apparent in an April 2022 MRI of plaintiff’s brain ‘were not related to the incident of September 2021’ involving Deputy Alvarado. In his deposition, Dr. Thomas opined that the changes in the white matter in plaintiff’s brain could have been caused by ‘undiagnosed hypertension,’ ‘atherosclerotic disease,’ ‘ischemic changes,’ or other ‘previous injuries.’ Dr. Thomas also opined that plaintiff’s presentation at the emergency room on Sept. 20, 2021, the day of her altercation with Deputy Alvarado, ‘would not be consistent with any moderate or severe brain injury.’ Plaintiff’s motion seeks to exclude Dr. Thomas’s testimony as unreliable under Rule 702 and Daubert and because it is unduly prejudicial under Rule 403.”
Arnold did not challenge Dr. Thomas’s qualification, but instead, argued his testimony was unreliable for three reasons: That it was “speculative”, that it was “based on insufficient facts and information” and it “lacked an analytical base.”
In response, the defendants accused the plaintiff of misstating Dr. Thomas’s testimony in her motion in limine, with the defendants describing Dr. Thomas’s “base opinion” as being “that there is no medical evidence that plaintiff sustained a moderate or server brain injury as a result of the incident sued upon.”
“For the most part, plaintiff’s objection goes to the weight and not the admissibility of the expert’s testimony. ‘The trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system.’ ‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ ‘As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the [fact finder’s] consideration.’ ‘Furthermore, experts may rely on one version of disputed facts in forming their opinions.’ Even ‘arguments [that] attack the weight of [an expert’s] methodology…may be explored on cross-examination,” Morgan stated.
“It is ‘the role of the adversarial system, not the Court, to highlight weak evidence.’ ‘Courts break from this general rule in exceptional circumstances, such as when an expert’s testimony relies on ‘completely unsubstantiated factual assertions.’ Plaintiff may cross-examine Dr. Thomas as to the bases and sources of his opinions and highlight any weaknesses in his testimony for the benefit of the jury. For the foregoing reasons, plaintiff’s motion to exclude Dr. Najeeb Thomas is denied.”
Morgan added that a four-day trial in this matter was set to begin June 17.
U.S. District Court for the Eastern District of Louisiana case 2:22-cv-03332
From the Louisiana Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com