United States District Court, S.D. Ohio, Eastern Division, Columbus
In re OHIO EXECUTION PROTOCOL LITIGATION, This relates to Plaintiff Cleveland Jackson
A. Sargus, Jr., Chief Judge
DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DR. CHARLES
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
capital § 1983 case is before the Court on Plaintiff
Cleveland Jackson's Motion to Strike Expert Report and
Any Testimony of Dr. Charles Kokes or, in the Alternative,
Motion in Limine to Exclude Some or All Testimony of
Dr. Kokes (ECF No. 2322). Defendants oppose the Motion (ECF
No. 2341). Dr. Kokes has been designated as an expert witness
to be presented by Defendants at the hearing on Plaintiff
Jackson's Motion for Preliminary Injunction (Witness
List, ECF No. 2295).
required by the Court's Scheduling Order (ECF No. 2206),
Defendants have filed an expert report from Dr. Kokes in the
form of a declaration under penalty of perjury under 28
U.S.C. § 1746 (“Kokes Report, ” ECF Nos.
2289, 2290, 2107). The Kokes Report reveals that Charles
Kokes is a medical doctor (M.D.) who is board certified in
anatomic and forensic pathology (Report, ECF No. 2289, PageID
110981). He is employed by the Arkansas State Crime
Laboratory as the Arkansas State Medical Examiner. He also
serves as laboratory director for Pinpoint Testing, LLC, a
private forensic toxicology laboratory which specializes in
laboratory consulting and lists the provision of expert
testimony as an offered service. In the course of his
thirty-four year career in forensic pathology, he has
performed over 10, 000 full autopsies including those on
seven inmates executed by lethal injection. Id.
immediately preceding preliminary injunction matter in this
consolidated case, the Court made the following findings of
[I]t is certain or very likely that a 500 mg IV-injected dose
of midazolam cannot reduce consciousness to the level at
which a condemned inmate will not experience the severe pain
associated with the injection of the paralytic drug or
potassium chloride or the severe pain and needless suffering
that is certain or very likely to be caused by the pulmonary
edema which is very likely to be caused directly by the
midazolam. This finding of fact is independent of the
hypothesis that it is the acidic state of injected midazolam
that causes pulmonary edema.
In re Ohio Execution Protocol Litig. (Henness), 2019
U.S. Dist. LEXIS 8200, *230-31, 2019 WL244488 (S.D. Ohio Jan.
14, 2019), on appeal at 6th Cir. No. 19-3064. In
his Report, Dr. Kokes offers the opinion that these findings
“were based on medical testimony and evidence that was
incomplete and/or misinformed.” (Kokes Report, ECF No.
2289, PageID 110982, ¶ 4.) He explains that the purpose
of his report is to “present [ ] the following
information and opinions so as to provide the Court with a
more complete understanding of the medical facts which are
relevant to the issues in this case.” Id.
believes that, within the meaning of Fed. R.Evid. 702 and 703
he is “an expert in the field of forensic pathology and
such fields as are necessarily related to forensic pathology,
including physiology, pharmacology, general medicine and
scientific research.” Id. PageID 110983 at
preparing his report, Kokes avers that he has, at the request
of Ohio Assistant Attorney General Anne Berry Strait,
examined reports “filed in these proceedings by
pathologist Mark Edgar, anesthesiologist Dr. David Lubarsky,
pulmonologist Dr. Matthew Exline, and pharmacologists Dr.
Craig Stevens and Dr. David Greenblatt.” Id.
at ¶ 8, PageID 110983-84. Because he does not reference
the dates of these reports and because some of those named
have not been listed as witnesses for the Cleveland Jackson
hearing and the date for disclosing expert witnesses has
passed, the Court infers that Dr. Kokes is referring to the
reports of these witnesses filed in the Henness
Kokes agrees these experts
are eminently qualified in their respective fields, . . .
none of them have [sic] an educational background or work
experience which indicates routine analysis of how and why
individuals die. In my analysis, the plaintiff's experts
demonstrate a lack of professional familiarity with fatal
drug toxicity and its terminal effects on core body
functions. As result, they have made erroneous assumptions
which undermine their arguments regarding the toxic effects
of midazolam solution.
Id. at ¶ 11, PageID 110985.
offers three bases for excluding Kokes as an expert witness.
First Jackson says Kokes is “essentially a proxy for
the Defendants in this case” because his own employer,
the State of Arkansas, uses an execution protocol materially
indistinguishable from Ohio's which he has a strong
interest in defending. Second, Kokes's conclusions are
unsupported by relevant facts and data and are thus not
reliable science. Third, Kokes offers opinion well beyond his
area of expertise, which should therefore be excluded (ECF
No. 2322, PageID 113139).
respond that Kokes is not a “partisan” and has no
financial stake in the outcome of this litigation because,
after all “this case is not about money.” (ECF
No. 2341). As to the foundations for Kokes's opinions,
Defendants claim they are based on “actual real world
experience” as “a board-certified
forensic pathologist who has performed hundreds of
autopsies on persons who have died of drug overdoses or other
toxic insults.” They are claimed to be far more
scientific than those of Plaintiff's expert forensic
pathologist, Dr. Mark Edgar. Id. at PageID 114323
(emphasis in original).
Evid. 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of