Piskura v. Taser Int'l

• Decision Date: 29 October 2012
• Docket Number: Case No. 1:10-cv-248
• Parties: MARY PISKURA, et al., Plaintiffs, v. TASER INTERNATIONAL, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

MARY PISKURA, et al., Plaintiffs,

v.TASER INTERNATIONAL, et al., Defendants.

Case No. 1:10-cv-248

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: October 29, 2012

Weber, J.

Litkovitz, M.J.

ORDER AND REPORT AND

RECOMMENDATION

This civil action is before the Court on defendant Taser International's (TASER) motion for summary judgment and supporting brief (Docs. 84, 103), plaintiffs' brief in opposition (Doc. 123), and Taser's reply brief. (Doc. 137). This matter is also before the Court on TASER's motion to exclude plaintiffs' expert Dr. Zipes and its brief in support (Docs. 105, 106), plaintiffs' brief in opposition (Doc. 124), and TASER's reply (Doc. 138), and TASER's motion to submit supplemental authority in support of their summary judgment motion (Doc. 145) and plaintiffs' response in opposition. (Doc. 146). On August 15, 2012, the undersigned held oral argument on the pending motions. (Doc. 139). As TASER's summary judgment motion relies, in part, on the arguments presented in its motion to exclude the testimony of Dr. Zipes, the Court will first address the motion in limine.

For the reasons stated below, TASER's motion to submit additional authority is granted, TASER's motion to exclude Dr. Zipes' testimony is denied, and the undersigned recommends that TASER's motion for summary judgment be granted in part and denied in part.

I. Factual and Procedural History

The instant lawsuit arises from the death of Kevin Piskura (Piskura) in April 2008. The administratrix of Piskura's estate and his next of kin (plaintiffs) brought a 42 U.S.C. § 1983claim against the Oxford Defendants¹ alleging that Piskura's death resulted from an unreasonable use of force, specifically the use of a taser on Piskura's chest. As the Oxford Defendants have been dismissed, the remaining claims against TASER are state law claims of Wrongful Death/Statutory Product Liability under §§ 2307.74, 2307.75, and 2307.76 of the Ohio Product Liability Act (OPLA); Wrongful Death, Common Law Negligence and Product Liability; Wrongful Death/Intentional and Negligent Concealment and Misrepresentation; Wrongful Death/Reckless, Willful and Wanton Misconduct; Survivorship; and Loss of Consortium. (Doc. 1).²

A. Undisputed Facts

1. Plaintiffs, Mary Piskura and Charles Piskura, are residents of the State of Ohio and the next of kin of Piskura.

2. Defendant, TASER, is a Delaware Corporation with its principal place of business in the State of Arizona. (Doc. 27, ¶ 14, TASER's Answer to Plaintiffs' Complaint).

3. TASER designs, manufactures, fabricates, markets, sells and distributes, Electronic Control Devices (ECDs), including the X26 model. (Id.).

4. ECDs are designed for two methods of application by law enforcement officers in the field: (a) probe application, where two probes fire via compressed nitrogen, with electrical impulses transmitted into the subject through trailing wires; or (b) drive-stun mode, where the ECD is physically pressed against the target. (Doc. 142, ¶ 8).³

5. In order for the X26 ECD to deliver an electrical charge to a person, there must have been a completed electrical circuit. (Docs. 103 at 5; 142, ¶¶ 23, 49).

6. On April 19, 2008, Piskura was at Brick Street Bar in Oxford, Ohio. (Docs. 103 at 6; 123 at 7).

7. Piskura had been drinking alcohol over the course of several hours. (Id.).

8. At approximately 2:00 a.m., Piskura was escorted out of the bar by security. (Docs. 103 at 6-7; 123 at 7).

9. Once outside, Piskura encountered an Oxford Police Officer, Officer Robinson, who had responded to the scene pursuant to a call. (Docs. 103 at 7; 123 at 7).

10. Officer Robinson deployed his ECD X26 in probe application mode at Piskura. (Doc. 103 at 7; Doc. 123 at 8).

11. After Officer Robinson deployed the ECD, Piskura fell to the ground. (Id.).

12. Piskura experienced cardiac arrest.

13. Piskura was taken to the hospital and died 5 days later. (Doc. 93, Ex. 7).

II. TASER's Motion to Exclude Dr. Zipes' Testimony (Doc. 105)

A. Motion In Limine Standard

The Court has the discretion to rule on an evidentiary motion in limine pursuant "to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984). "The purpose of a motion in limine is to allow the Court to rule on issues pertaining to evidence in advance of trial in order to avoid delay and ensure an even-handed and expeditious trial." Morrison v. Stephenson, No. 2:06-cv-283, 2008 WL 5050585, at *1 (S.D. Ohio Nov. 20, 2008) (citing Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp.2d 844, 846 (N.D. Ohio 2004) (internal citations omitted)).

Courts are generally averse to excluding evidence in limine because "a court is almost always better situated during the actual trial to assess the value and utility of evidence." Koch v. Koch Indus., Inc., 2 F. Supp. 2d 1385, 1388 (D. Kan. 1998); accord Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). A party seeking the exclusion of evidence must demonstrate that the evidence is clearly inadmissible on all potential grounds. See Ind. Ins.Co., 326 F. Supp.2d at 846; Koch, 2 F. Supp.2d at 1388; cf. Luce, 469 U.S. at 41. "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Ind. Ins. Co., 326 F. Supp.2d at 846.

B. The Daubert Standard and Expert Witnesses

Rule 702 of the Federal Rules of Evidence provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The district court has a "gatekeeping role" to screen expert testimony and judges have discretion to determine whether such testimony is admissible, depending on its reliability and relevance. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-97 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999); Newell Rubbermaid, Inc. v. The Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012). "[T]he law grants the [court] broad latitude" in analyzing and determining the reliability of proffered expert witness testimony. Kumho, 526 U.S. at 139, 142. "The inquiry [under Rule 702] is a flexible one[,]" and its focus "must be solely on principles and methodology, not on the conclusions [the expert] generate[s]." Daubert, 509 U.S. at 594-95. Reliability is determined by assessing "whether the reasoning or methodology underlying the testimony is scientifically valid," whereas relevance depends upon "whether [that] reasoning or methodology properly can be applied to the facts in issue." Id. at592-593. The Daubert court set forth four non-exclusive factors to aid in the determination of whether an expert's methodology is reliable: (1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or method has been generally accepted by the scientific community. Id. at 593-94. This is a flexible test, however, and these enunciated factors do not constitute a "definitive checklist or test," but must be tailored to the facts of a particular case. Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 593).

C. Analysis

In his expert opinion report, Dr. Zipes concludes that "[a] Model X26 [taser] discharge can cause cardiac arrest by capturing the cardiac rhythm at very rapid rates, and precipitating ventricular tachycardia or ventricular fibrillation (VF), as shown in animal testing and human reports." (Doc. 111, Ex. 5 at 56). With regard to the cause of Piskura's death, Dr. Zipes opines that "[t]he temporal relationship of [Piskura's] collapse to the Model X26 shocks in the absence of any plausible alternative explanation for his heart to fibrillate at that precise moment demonstrates that the ECD's electrical current directly caused [Piskura's] cardiac arrest[,]" and, further, that "to a high degree of medical certainty [Piskura] developed [VF] as a result of the X26 shocks that he received, which led directly to his death." Id. at 56-57. Dr. Zipes' opinion is "expressed to a reasonable degree of medical certainty, based on [his] education, clinical practice, research, training, experience, literature review, document review, and generally accepted principles of medicine and clinical science." Id. at 56.

TASER urges the Court to exclude plaintiffs' causation expert, Dr. Zipes, from testifying at trial with regard to his opinion that Piskura died as a result of being tased in his chest for thefollowing reasons: (1) Dr. Zipes is not an expert on the effects of electronic control device (ECD) electrical current on the human body; (2) Dr. Zipes' theory is unsupported by the evidence and does not meet the Daubert criteria for reliability; and (3) Dr. Zipes' methodology fails to address contradictory research. In opposition, plaintiffs assert that Dr. Zipes has the necessary technical background to assist the jury's understanding of the issues in this case; that Dr. Zipes applied accepted scientific and medical principles and methodologies to the issues presented; and that Dr. Zipes' conclusions about ECD risks have since passed peer review. Plaintiffs also contend that TASER's arguments go to the weight of Dr. Zipes' opinion and proffered testimony rather than to their admissibility. For the following reasons, the undersigned finds that Dr. Zipes is...