United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTIONS TO EXCLUDE EXPERT WITNESSES
TIM A. BAKER, Magistrate Judge.
On the night of February 2, 2011, Plaintiff Randy Lynn had an epileptic seizure. A passerby called 911 to report that Lynn was convulsing and possibly having a seizure. IMPD officers responding to the call thought Lynn may have been under the influence of narcotics. An altercation ensued during which officers Nathan Challis and Timothy Huddleston tased and hit Lynn multiple times while attempting to handcuff him. This lawsuit followed.
A jury trial is set for February 9. Defendants Challis and Huddleston face claims of excessive force, false arrest, and failure to intervene pursuant to 42 U.S.C. § 1983. Defendant City of Indianapolis faces state law claims of assault, battery, excessive force, false imprisonment, and malicious prosecution. Both sides have filed motions to exclude expert witnesses, which the Court addresses below.
B. Defendants' Motion to Exclude.
Defendants seek to exclude Plaintiff's expert, Dr. Nikesh Ardeshna, for two reasons. First, Defendants argue that Ardeshna's report does not comply with the requirements of Fed.R.Civ.P. 26(a)(2). Specifically, Defendants note that Ardeshna's "report" is nothing more than a self-described "information piece" that contains general information regarding epilepsy and seizures but doesn't even mention Lynn. [Filing No. 77-1.] Second, Defendants seek to exclude Ardeshna under Fed.R.Evid. 702 on the ground that his testimony will not help the trier of fact better understand the evidence or determine a fact in issue.
Defendants are correct that Ardeshna's report does not comply with Rule 26(a)(2), which sets forth a comprehensive list of items that must be contained in an expert report. Lynn contends, however, that he has substantially complied with the rule and that Defendants have not been prejudiced. The Court agrees.
Lynn's criminal defense attorneys consulted with Ardeshna in their successful effort to get the charges against him dismissed. Lynn timely disclosed Ardeshna in this civil case in June 2013 in his initial disclosures and in his July 21, 2013, preliminary witness list. [Filing No. 21, at ECF p. 2.] On March 1, 2014, Lynn served his second expert disclosures on Defendants that included Ardeshna's expert report and curriculum vitae, and stated that Ardeshna was expected to testify consistently with his previously recorded statement. [Filing No. 86.] This recorded statement is a 50-minute, 15-page recorded interview with prosecutors and defense lawyers in Lynn's criminal case that occurred on November 7, 2012. In 2013, Lynn and Defendants produced this statement to each other during written discovery in this civil case. [Filing No. 86, at ECF p. 3.] On November 20, 2014, in response to Defendants' request, Lynn provided Defendants with Ardeshna's updated CV, and Lynn provided additional supplementation on November 23 and 27, 2014.
All of this easily could have been avoided had Lynn initially made a proper Rule 26(a)(2) expert disclosure. However, in the Court's view, Lynn has adequately cured the deficiencies in his expert report. Defendants claim that they will be prejudiced as a result, but Defendants' position is undermined not only by Lynn's multiple efforts to cure these deficiencies but also by defense counsel's own emails. On July 18, 2014, Lynn's counsel asked defense counsel if Defendants wanted to depose Ardeshna. Defendants indicated that they did, and asked if any of the experts were treating doctors. Lynn's counsel responded that Ardeshna is not a treating doctor. [Filing No. 86-10.] On November 12, 2014, defense counsel again asked in an email exchange whether Ardeshna was a treating doctor. [Filing No. 86-11.] Lynn's counsel responded by reminding defense counsel that Ardeshna was not a treating doctor. [Filing No. 86-12.]
Lynn appropriately points out that these email exchanges demonstrate that Defendants had not been planning to depose Ardeshna, did not know who he was, were not aware that they had his report or interview, and did not know the capacity in which he was testifying. Thus, Lynn concludes, "they could not have been, and were not, prejudiced by any technical deficiencies." [Filing No. 86, at ECF p. 14.] Defendants' suggestion in their reply brief that these emails actually demonstrate that they were reasonably confused by Lynn's disclosures is, in a word, unavailing. Accordingly, the Court finds that the shortcomings in Lynn's expert disclosure were harmless and have been adequately cured.
Defendants' attempt to exclude Ardeshna's expert report using Evidence Rule 702 fares no better. Rule 702 states in relevant part that an expert may testify in the form of an opinion if the testimony will help the trier of fact better understand the evidence or determine a fact in issue. Defendants assert that while Ardeshna's testimony about the "generalities of epilepsy and seizures" and patients' mental states was undoubtedly relevant in the criminal prosecution, Lynn's mental state in this civil case is irrelevant. [Filing No. 77, at ECF p. 12.] However, as Lynn correctly points out, as an epileptologist and neurologist Ardeshna can testify broadly with respect to epilepsy, seizures, their causes, and how people behave before, during, and after seizures. [Filing No. 86, at ECF p. 7.]
One of the issues in this case is the reasonableness of the officers' conduct. As noted in the entry on summary judgment, the "key issue" is whether Huddleston reasonably believed that Lynn "was on drugs rather than the person who had reportedly suffered from a seizure." [Filing No. 67, at ECF p. 14.] Ardeshna's testimony can shed light on this key issue, and therefore under Rule 702 his testimony could help the jury better understand the evidence or determine a fact in issue.
As Lynn points out, Ardeshna explains that it is common for people in a postictal state to be unable to speak, and sometimes possess "super-human strength." [Filing No. 86, at ECF p. 10.] Defendants proffered testimony at summary judgment that Lynn did not speak when confronted by police and seemed extremely strong. [Filing No. 67, at ECF p. 5-6.] Moreover, Ardeshna provides corroborating evidence for Lynn's testimony that he doesn't remember any of the incident after his seizure began.
Perhaps Defendants' most valid criticism of Ardeshna's anticipated testimony is that he has failed to provide a sufficient foundation for his opinions. Trial courts must fulfill their gatekeeping role as described in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 57 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Ardeshna's two-page (single spaced) information piece is lacking in principles and ...