Court: United States District Court for the Southern District of Ohio, Eastern Division
Case Name: In re Ohio Execution Protocol Litig.
Citation: 2019 U.S. Dist. LEXIS 137878
This case involves a capital civil action for deprivation of rights where a motion in limine was filed to exclude the testimony of the defendant’s forensic pathology expert witness.
The plaintiff alleged that because the defendant’s forensic expert’s employer used similar execution methodology, that it was in the expert’s interest to defend Ohio’s lethal injection method. The plaintiff also alleged that the expert offered opinions which were both outside his area of expertise and unsupported by relevant data or facts. Thus, the plaintiff argued that the forensic expert’s testimony could not be considered reliable science.
The defendant challenged this motion on the grounds that the forensic expert was impartial and had no financial stake in the case. The defendant further argued that the expert’s opinion was based on practical experience gained from performing thousands of autopsies and that he was more qualified to testify than the plaintiff’s forensic expert witness.
The Forensic Expert
The defendant’s expert witness was a board-certified forensic and anatomic pathologist with 30+ years of experience in forensic pathology. The expert was employed at Arkansas State Crime Laboratory as the Arkansas State Medical Examiner and also served as the director of a private forensic toxicology laboratory. During his career, the forensic expert had performed 10,000+ autopsies, including 7 inmates who were executed using lethal injection.
The defendant’s forensic expert challenged the court’s finding that the amount of the drug midazolam injected in the present case was not enough to reduce consciousness to a level that the condemned inmate would not experience the excruciating pain associated with a lethal injection. He challenged the finding on the basis that it was based on misinformed and/or incomplete medical evidence.
The court noted that the state of Arkansas was in the process of defending the constitutionality of midazolam-induced lethal injection in another case. The fact that the defendant’s forensic expert witness offered an opinion in consonance with the defense used by his employer affected the credibility of his testimony, but not its admissibility.
The court also found that the forensic expert was being compensated by the state of Ohio for offering his services as an expert. Thus, he could not be considered a “proxy defendant”, as had been alleged by the plaintiff, noting that “bias in an expert is a credibility issue for the finder of fact, not a basis for exclusion,” citing Peters v. DCL Med Labs, LLC, 305 F. Supp. 3d 799, 812 (S.D. Ohio 2018)(Sargus, C.J.), citing Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1332-33 (11th Cir. 2014); accord, DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000).
The defendant’s claim that extensive experience as a forensic pathologist was enough to establish credibility was rejected because the forensic expert had not used any data to support his opinion and thus, could not be used reliably to determine the effect of midazolam on a living person, especially in a case such as the present one where drug composition and dosage was a topic of heated debate. The court also noted that just because a person has experience in something related to the question before the court, it does not make that person an expert on the question in the suit, citing Berry v. City of Detroit, 25 F.3d 1342 at 1350.
The court also noted that the forensic expert could not be considered an expert beyond the field of forensic pathology. The expert claimed that his long-time practice also qualified him as an expert in “physiology, pharmacology, general medicine, and scientific research”. The court noted that one can expect a forensic pathologist to have expertise in the pharmacology of drug overdose, but not pharmacology in general. The court also noted that the expert had not published any research or ever practiced in the field of general medicine or anesthesiology, yet he offered an opinion on the same.
The court declined to strike the forensic expert’s report. He was allowed to offer testimony limited to only the field of forensic pathology and physiology to the extent that could be directly derived from his experience and that his opinion remained within the knowledge of a medical doctor.
What We Can Learn From This Case
Familiarity with other fields of medical science developed over a period of time does not automatically make a forensic expert witness an expert in those subjects.