Pathology Expert Witness Testimony Denied in Part

Plaintiff filed suit against defendant related to a claim of excessive force against their son.  The plaintiffs hired a Pathology Expert Witness to provide testimony.  Defendant filed a motion to exclude this expert.  The court granted the motion in part and denied it in part.

Facts:  This case (Lombardo et al v. Saint Louis City et al – United States District Court – Eastern District of Missouri – February 1st, 2019) involves a claim under 42 U.S.C. § 1983.  The plaintiffs have sued the defendant officers claiming that they used excessive force by restraining their son inside a holdover cell, which resulted in his death.  The plaintiffs have hired Francisco J. Diaz, MD FCAP (Pathology Expert Witness) to provide expert witness testimony.  The defendants have filed a motion to exclude this expert from testifying.

Discussion: Dr. Diaz is an expert in forensic pathology.  The plaintiffs asked him to provide his opinion as to the cause and manner of Mr. Gilbert’s death.  Dr. Diaz has been in practice for nearly twenty years.  He is a board certified anatomic pathologist and forensic pathologist.  In addition, he has performed 9,000 post-mortem examinations, has testified in court 400 times and has been deposed over 100 times.

The defendants state that the court should exclude the testimony of Dr. Diaz because it is not reliable and lacks foundation.   The defendants specifically argue that Dr. Diaz should be prevented from opining that Mr. Gilbert was asphyxiated by the officers because he could not point to any literature to support his claims and only relied on his experience to defend his opinions.  The plaintiffs state that Dr. Diaz relied on his vast experience, literature, and a variety of other facts and data to determine Mr. Gilbert died due to asphyxiation caused by the officers’ forcible restraint.

The court opines that it will allow Dr. Diaz to testify regarding asphyxiation as his opinions rests on a reliable foundation.  The court continues by stating that Dr. Diaz relied on information from a variety of sources as a contributing cause of death.  The court also notes that different pathologists might review the same data and arrive at different conclusions, but this disagreement does not make Dr. Diaz’s methods unreliable.

The court, however, will exclude Dr. Diaz’s opinion that Mr. Gilbert’s “struggle” during the encounter with Defendant Officers “is a direct reflection of his ‘air hunger'”.  While Dr. Diaz may testify that the medical evidence and the cause of death is consistent with air hunger/asphyxiation, Dr. Diaz takes his opinion too far.  The court opines that this opinion invades the province of the jury.

Conclusion: The motion to exclude the expert witness testimony of Francisco J. Diaz is granted in part and denied in part.