Pathology Expert Witness Testimony Allowed in Part

Plaintiff filed suit against defendants under 42 U.S.C. § 1983 and Florida state law.  The defendant hired a Pathology Expert Witness to provide testimony.  The plaintiff has filed a motion to exclude this expert from testifying.  The court granted the motion in part and denied it in part.

Facts:  This case (Mighty v. Miami-Dade County et al – United States District Court – Southern District of Florida – April 30th, 2019) involves a claim under 42 U.S.C. § 1983 and Florida state law and stems from defendant police officer’s fatal shooting of the decedent.  The defendant has hired Dr. Emma O. Lew (Pathology Expert Witness) to provide testimony on his behalf.  The plaintiff has filed a motion to exclude this expert from testifying.

Discussion:  Dr. Lew is a forensic pathologist and is employed with the Miami-Dade County Medical Examiner Department.  The defendant has asked Dr. Lew to provide an expert opinion on 1) what all the evidence indicates and 2) whether all of the evidence is consistent with the defendant’s testimony.  The plaintiff has asked the court to strike Dr. Lew’s anticipated testimony.

The plaintiff argues that Dr. Lew’s opinions as to blood being in the middle of the street should be excluded because he does not describe in detail any facts, data, and methodology upon which she relies in forming that opinion.  The plaintiff contends that this opinion is unreliable.  The court opines that this part of the plaintiff’s Daubert challenge is flawed as this opinion is a statement of fact and is not an expert opinion.

The plaintiff also argues that Dr. Lew is not qualified to offer an opinion regarding police practices an officer’s physiological response to a perceived deadly threat.   The court opines that some of the opinion concern police practices and the defendant readily admits that Dr. Lew will not be offering police practices opinions at trial.  Also, Dr. Lew testified that police procedures are not her area of expertise.  The defendant does argue that Dr. Lew is qualified to provide an opinion on an officer’s physiological response to a perceived threat based on her extensive experience with police-involved shootings and experience interacting with law enforcement over the course of her career.  The court disagrees, stating that Dr. Lew’s report does not make mention of the extensive experience that the defendant refers to or how he applied that experience to the facts of this case.  Thus, the court opines that these opinions should be excluded at trial.

Conclusion:  The motion to exclude the expert witness report of Dr. Emma O. Lew is granted in part and denied in part.