United States District Court, E.D. North Carolina, Southern Division
GWENDOLYN JACKSON PINNIX, Executor of The Estate of David W. Jackson, Sr. and; WARREN IVAN JACKSON, Executor of The Estate of David W. Jackson, Sr., Plaintiffs,
SSC SILVER STREAM OPERATING COMPANY LLC, Defendant.
W. FLANAGAN United States District Judge.
matter is before the court on plaintiffs' motion to
strike testimony of defendant's experts Gregory A.
Compton, M.D. (“Compton”) and William R. Oliver,
M.D. (“Oliver”) (DE 68), and defendant's
motion to strike testimony of plaintiffs' expert Thomas
D. Owens, M.D. (“Owens”) (DE 70), pursuant to
Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The motions
have been briefed fully, and in this posture, the issues
raised are ripe for ruling. For the reasons that follow, the
motions are denied.
executors of the estate of David W. Jackson
(“decedent”), filed this wrongful death action in
the Superior Court of New Hanover County, North Carolina on
June 27, 2014, against defendants SSC Silver Stream Operating
Co., L.L.C. (“SSC”) and Sava SeniorCare L.L.C.
(“Sava”). Plaintiffs also assert claims against
defendants for administrative and corporate medical
malpractice, in violation N.C. Gen. Stat. § 90-21.11(2),
and common law negligence. Defendants timely removed the
action on August 6, 2014, invoking this court's diversity
of citizenship jurisdiction under 28 U.S.C. §§
1332, 1441, and 1446.
August 20, 2014, defendant SSC answered the complaint,
denying liability and raising a number of affirmative
defenses. (DE 12). That same date, defendant Sava filed a
motion to dismiss for lack of jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(2). (DE 13). The
parties voluntarily dismissed defendant Sava as party to the
action on September 11, 2014. (DE 18).
discovery, plaintiffs identified Dr. Owens as an expert to
testify as to decedent's cause of death. Defendant
identified Drs. Compton and Oliver as experts to testify as
to certain events surrounding decedent's
death. On September 30, 2016, plaintiffs filed
the instant motion to strike the testimony of Drs. Compton
and Oliver on the basis that the doctors' opinions are
unreliable and will not assist the trier of fact. On October
7, 2016, defendant SSC filed the instant motion to strike
testimony of Dr. Owens on the basis that Dr. Owens's
opinion is unreliable.
to the complaint, defendant SSC owns and operates Silver
Stream Health and Rehabilitation Center (“Silver
Stream”), a nursing home and rehabilitation center
located in Wilmington, North Carolina. (DE 1-1 ¶ 19).
Decedent was admitted to Silver Stream on April 15, 2013, for
rehabilitation and physical and occupational therapy.
(Id. ¶ 19). At the time of admission, decedent
was 83 years old and had multiple medical conditions
including dementia, obesity, anemia, and diabetes, among
others. (Id. ¶ 20) When he was admitted to
Silver Stream, decedent was assessed as being at risk for
falls. (Id.). In fact, decedent was admitted to
Silver Stream, in part, to learn how to use a motorized
wheelchair. (Id. ¶ 21).
April 15, 2013, until approximately June 10, 2013, an
occupational therapist taught decedent how to use a motorized
wheelchair. (Id. ¶ 22). By June 10, 2013,
decedent no longer required occupational therapy for
wheelchair mobility, (Id. ¶ 23), however he did
still require supervision when using his motorized
wheelchair. (Id. ¶ 24).
approximately 12:10 p.m. on July 21, 2013, decedent was
operating his motorized wheelchair at Silver Stream
unsupervised. (Id. ¶ 25). While unsupervised,
decedent drove his motorized wheelchair out the front door of
Silver Stream. (Id.). No one on Silver Stream's
staff saw decedent exit the facility. (Id.).
According to plaintiffs, once decedent exited the facility,
he attempted to drive himself down a wheelchair ramp that led
to the parking lot. (Id.). However, the wheelchair
ramp was not clearly marked. (Id.). As a result,
decedent's wheelchair rolled over the curb and became
unstable. (Id.). This instability caused decedent to
fall out of the wheelchair, directly onto his face and head.
proximate result of injuries sustained from his fall on July
21, 2013, decedent passed away on July 26, 2013.
(Id. ¶ 26).
Standard of Review
Rule of Evidence 702 governs the admissibility of expert
opinion testimony. Under Rule 702, expert testimony is
appropriate when “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.” Fed.R.Evid. 702. A witness qualified as an
expert may be permitted to testify where “(b) the
testimony is based upon 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.” Id.
have distilled the requirements of Rule 702 into two crucial
inquiries: 1) whether the proposed expert's testimony is
relevant; and 2) whether it is reliable. Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 141 (1999);
Daubert, 509 U.S. at 589; see Nease v. Ford
Motor Co., ___F.3d___, 2017 WL 437665, at *6
(4th Cir. 2017). The trial court must carry out the special
gate-keeping obligation of ensuring that expert testimony
meets both requirements. Kumho Tire, 526 U.S. at
test of “relevance” considers whether the
proposed expert testimony will help the jury in resolving a
factual dispute. Daubert, 509 U.S. at 591. Expert
testimony “is presumed to be helpful unless it concerns
matters within the everyday knowledge and experience of a lay
juror.” Kopf v. Skyrm, 993 F.2d 374, 377 (4th
reliability inquiry is a “flexible one focusing on the
principles and methodology employed by the expert, not on the
conclusions reached.” Westberry v. Gislaved Gummi
AB, 178 F.3d 257, 261 (4th Cir. 1999) (internal
quotations omitted). In assessing whether expert testimony is
“reliable, ” the court may consider:
(1)whether a theory or technique can be (and has been)
tested; (2) whether the theory has been subjected to peer
review and publication; (3) the known or potential rate of
error; (4) the existence and maintenance of standards
controlling the techniques' operation; and (5) whether
the technique has received general acceptance within the
relevant scientific or expert community.
United State v. Crisp, 324 F.3d 261, 266 (4th Cir.
2003) (quoting Daubert, 509 U.S. at 593-94)
(quotation marks omitted); see also Nease, 2017 WL
437665, at *6. These factors, however, are not exclusive and
“the court has broad latitude to consider whatever
factors bearing on validity that the court finds to be
useful[, ] . . . depend[ing] upon the unique circumstances of
the expert testimony involved.” Westberry, 178
F.3d at 261 (citing Kumho Tire, 526 U.S. at 151).
proponent of expert testimony must establish its
admissibility by a preponderance of proof. Cooper v.
Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir.
2001). Review by the advisory committee indicates that
rejection of expert testimony is the exception rather than
the rule. Fed. R. Evid.702 advisory committee's note to
Compton and Oliver
move to exclude testimony from Drs. Compton and Oliver that
decedent suffered a cardiac event prior to falling from his
wheelchair on July 21, 2013. Plaintiffs assert four grounds
for exclusion: 1) the doctors' opinions will not help the
jury; 2) the opinions are not based on sufficient facts or
data; 3) the opinions are not based on reliable principles
and methods; and 4) the doctors did not reliably apply