United States District Court, S.D. Ohio, Eastern Division, Columbus
In re OHIO EXECUTION PROTOCOL LITIGATION, This relates to Plaintiffs Alva Campbell and Raymond Tibbetts
A. Sargus, Jr., Chief Judge
DECISION AND ORDER DENYING MOTION IN LIMINE AS TO
LAURA DEPAS WITHOUT PREJUDICE
Michael R. Merz, United States Magistrate Judge
case is before the Court on the State Defendants' Motion
to Limit the Preliminary Injunction Testimony of Laura Depas,
a certified registered nurse anesthetist who was an
eyewitness to the executions of Ronald Phillips and Gary
Otte, the two most-recently executed Ohio death row inmates.
Defendants object not to her fact testimony but to some of
what she is expected to testify to as an expert.
of the essence in deciding the Motion. Ms. Depas was
identified as an expert and her report filed October 12, 2017
(ECF No. 1293). Defendants' Motion in Limine was filed
October 19, 2017, and Plaintiffs' Opposition October 20,
2017; Ms. Depas's testimony is scheduled to be heard
sometime in the week of October 23, 2017.
Rule of Evidence 702 sets forth the requirements for the
admissibility of expert testimony as follows:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
Sixth Circuit explicated the application of a case involving
mitochondrial DNA analysis:
The wording of the rule reflects the now-standard inquiry set
out in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). Daubert . . . set[s] forth a
non-exclusive checklist of factors for trial courts to use in
assessing the reliability of scientific expert testimony.
These include 1) whether the expert's scientific
technique or theory can be, or has been, tested; 2) whether
the technique or theory has been subject to peer review and
publication; 3) the known or potential rate of error of the
technique or theory when applied; 4) the existence and
maintenance of standards and controls; and 5) whether the
technique or theory has been generally accepted in the
scientific community. Daubert, 509 U.S. at 592-95;
Hardyman v. Norfolk & W. Ry., 243 F.3d 255, 260
(6th Cir. 2001). If the evidence is deemed to be reliable and
relevant, the judge must then determine if the probative
value of the evidence is outweighed by its prejudicial
effect. Daubert, 509 U.S. at 595.
United States v. Beverly, 369 F.3d 516
(6th Cir. 2004)(Boggs, J.).
testimony based on scientific research done solely for
litigation and neither subjected to peer review nor published
in scientific journals and not accompanied by showing of
methodology on which it is based is not admissible under 702.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 43
F.3d 1311 (9th Cir. 1995)(on remand from the
Supreme Court); accord, Johnson v. Manitowoc Boom Trucks,
Inc., 484 F.3d 426 (6th Cir. 2007). Numerous
courts have held Daubert applies to medical
evidence, including psychological evidence. See United
States v. Hall, 93 F.3d 1337, 1342-43 (7th
Rule 702 requires the federal courts “to be sure that
the person possesses genuine expertise in a field and that
her court testimony ‘adheres to the same standards of
intellectual rigor that are demanded in [her] professional
work.'” Tyus v. Urban Search Mgmt., 102
F.3d 256, 263 (7th Cir. 1996). The ideal way to
perform this gatekeeping task is to hold a Daubert
hearing - an evidentiary hearing to elicit facts relevant to
the Daubert inquiry.
district courts are not obliged to hold an actual hearing to
make a Rule 702 determination. Greenwell v.
Boatwright, 184 F.3d 490 (6th Cir. 1999).
Whether to do so is committed to the trial court's
discretion. Kumho Tire Co. v. Carmichael, 526
U.S.137, 152 (1999); Nelson v. Tennessee Gas Pipeline
Co., 243 F.3d 244 (6th Cir. 2001).
judge has broad discretion in admitting or excluding expert
evidence which is to be sustained unless manifestly
erroneous. United States v. Demjanjuk, 367 F.3d 623
(6th Cir. 2004), citing United States v.
Jones, 107 F.3d 1147, 1151 (6th Cir. 1997).
This discretion is particularly broad in a bench trial or
similar evidentiary proceeding, such as a preliminary
injunction hearing. Can-Am Eng'g Co. v. Henderson
Glass, Inc., 814 F.2d 253, 255 (6th Cir.
1987). In part this is occasioned by concern that labeling a
witness as an “expert” may give that witness
unwarranted credibility with a jury; a judge sitting alone as
the trier of fact is presumed to avoid that unwarranted
a trial judge is entitled to a high degree of deference only
if the district court properly understood the pertinent law.
Best v. Lowe's Home Centers, Inc.,563 F.3d 171
(6th Cir. 2009), citing United States v. 2903
Bent Oak Highway,204 F.3d 658, 665 (6th Cir.
2000). Hopefully, now instructed by the Sixth Circuit's
en banc opinion in Fears, the undersigned
now understands the law applicable to determining whether a