United States District Court, M.D. Florida, Orlando Division
E. MENDOZA I UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Plaintiff's Daubert Motion
to Exclude Opinions of Non-Retained Defense Expert Krzysztof
Podjaski (“Motion, ” Doc. 323). Defendants James
Haman (“Haman”) and Diomedis Canela
(“Canela”) filed a joint Response (Doc. 331),
which also incorporated by reference the Responses at docket
entries 223 and 228. For the reasons stated herein,
Plaintiff's Motion will be denied.
Randall Greer, brings this action as the personal
representative of his brother, Christopher Greer,
(Third Amended Complaint, Doc. 117, at 4), who was shot and
killed by Defendants Corporal Haman and Deputy Canela of the
Brevard County Sheriff's Office on January 13, 2013.
Officer Scott Holstine was also on the scene. (Holstine Dep.
Pt. 1, Doc. 173-18, at 30:1- 4). The incident occurred after
Plaintiff called the police when Christopher threatened him
with a knife and grabbed Plaintiff's wife by the throat.
(Randall Greer Dep. Pt. 1, Doc. 173-13, at 59:5- 9, 60:2-6,
62:1-6; Christine Greer Dep., Doc. 173-11, at 131:25-132:7;
911 Phone Call Tr., Doc. 174-1, at 2).
entered the home and observed a knife in a sheath on
Christopher's side and Christopher walking towards the
door. (Canela Dep. Pt. 2, Doc. 173-9, at 204:7-13,
204:19-21). Canela took a step back and warned Haman and
Holstine that Christopher had a knife. (Id. at
198:20-25, 199:11-14, 205:21-24). Thereafter, Christopher
slammed the door shut. (Id. 206:5- 207:4; Holstine
Dep. Pt. 2, Doc. 173-19, at 144:20-21). Ultimately, Officers
Haman and Canela fired their weapons at Christopher, and
eight shots struck and killed him. (Doc. 173-9 at 241:9-
242:5, Haman Dep. Pt. 2, Doc. 173-16, at 193:1-2; Ernest
Report, Doc. 183-1, at 8; Doc. 117 ¶ 310). The officers
argued on summary judgment that their use of deadly force was
reasonable. The Eleventh Circuit stated that “[t]he
answer to that question . . . turns on whether, in the moment
before the shooting, the deputies reasonably believed that
Christopher posed an immediate threat to their safety.”
(Opinion of USCA, Doc. 308, at 7 (citing Perez v.
Suszczynski, 809 F.3d 1213, 1222 (11th Cir. 2016))).
Thus, “the reasonableness determination turns on two
questions: Was Christopher holding a knife when he was
killed? And, if so, what was he doing with it?”
(Id.). Additionally, Defendants have raised as an
affirmative defense, pursuant to section 768.36 of the
Florida Statutes, that Christopher was intoxicated at the
time of the shooting.
Krzysztof Podjaski (“Dr. Podjaski”) is the
medical examiner who performed the autopsy on Christopher.
During his June 7, 2016 deposition, Dr. Podjaski was asked to
express an opinion as to the position of Christopher's
arm at the time he was shot in his underarm. (Podjaski Dep.,
Doc. 323-2, at 21:17-19). Plaintiff's Motion seeks to
prevent Dr. Podjaski from testifying about that opinion.
Plaintiff's Motion also seeks to have excluded the
results from a July 14, 2016 toxicology test performed by Dr.
Podjaski on Christopher's vitreous fluid, which sought to
establish the ethanol concentration of the fluid. The Motion
is brought pursuant to both Federal Rule of Civil Procedure
26 and Federal Rule of Evidence 702. Each will be discussed
in turn below.
Rule of Civil Procedure 26(a)(2) sets forth the expert
disclosure requirements, which provide that all expert
witnesses must be disclosed and that certain experts must
provide written reports in conjunction with the disclosure.
The disclosure of an expert witness must be accompanied by a
written expert report “if the witness is one retained
or specially employed to provide expert testimony in the case
or one whose duties as the party's employee regularly
involve giving expert testimony.” Fed.R.Civ.P.
26(a)(2)(B). Even if a witness is not required to provide a
written report, however, they still must be disclosed, and
the “disclosure must state: (i) the subject matter on
which the witness is expected to present evidence . . .; and
(ii) a summary of the facts and opinions to which the witness
is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C).
noted, Rule 26(a)(2) sets forth two requirements pertaining
to expert disclosures: the identity of the expert witness and
either a summary of the expected opinion testimony or an
expert report, depending on the nature of the expert
witness's testimony. Expert reports are only required
“if the witness is one retained or specially employed
to provide expert testimony in the case or one whose duties
as the party's employee regularly involve giving expert
testimony.” Fed.R.Civ.P. 26(a)(2)(B).
undisputed that Dr. Podjaski was properly and timely
disclosed as a non-retained expert with regard to the autopsy
of Christopher because he was the medical examiner who
conducted the autopsy in the normal course of his employment.
Thus, Dr. Podjaski was not required to submit an expert
report pursuant to Rule 26(a)(2)(B) in order to testify
regarding the autopsy. See AXA Equitable Life Ins. Co. v.
Sands, 5:06-cv-59/RS, 2006 WL 5217762, at *1 (N.D. Fla.
Oct. 2, 2006) (holding that Rule 26(a)(2)(B) does not apply
to medical examiner who performed an autopsy and was not
retained or employed to provide expert testimony in the
case). Experts that are not required to provide a written
report must still provide a disclosure that states “the
subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705; . .
. [and] a summary of the facts and opinions to which the
witness is expected to testify.” Rule 26(a)(2)(C). It
is undisputed that Dr. Podjaski did timely produce his
autopsy report which satisfied his disclosure requirements
regarding the autopsy.
the parties agreeing that Dr. Podjaski was a non-retained
expert who could testify as to the medical examination
without the production of an expert report, Plaintiff argues
that Dr. Podjaski gave opinions that were outside the scope
of the autopsy report and that transformed him into a
retained expert. Plaintiff asserts that any opinions that are
given outside the scope of the autopsy report should have
been disclosed in an expert report pursuant to Rule
26(a)(2)(B) in order for them to be admissible at trial.
See Levine v. Wyeth Inc., 8:09-cv-854-T-33AEP, 2010
WL 2612579, at *1 (M.D. Fla. June 25, 2010) (“Where a
doctor's opinion extends beyond the facts disclosed
during care and treatment of the patient and the doctor is
specially retained to develop opinion testimony, he or she is
subject to the provisions of Rule 26(a)(2)(B).”).
Plaintiff argues that Dr. Podjaski's opinion regarding
the position of Christopher's arm when he was shot is
outside the scope of the autopsy report and was not disclosed
in an expert report. Therefore, Plaintiff requests that
insofar as Defendants intend to elicit said opinion on the
position of Christopher's arm, the Court should disallow
it and that it should be stricken.
deposition, Dr. Podjaski was asked by Defense counsel to
opine regarding the position of Christopher's arm at the
time he was shot. Dr. Podjaski stated that based on his
experience, and the lack of apparent abrasions on the wound
in question as he saw it during his autopsy, it would appear
to him that if the arm was closed there would be more
abrasions on the wound. Therefore, he concluded that the arm
was probably raised. Indeed, while answering the question,
Dr. Podjaski referenced a photograph of the wound that was
taken during the autopsy he performed. (Id. at
19:6-16). Clearly, Dr. Podjaski's opinion of
Christopher's arm placement was based on his examination
and autopsy. See Singletary v. Stops, Inc., No.
6:09-cv-1763-Orl-19KRS, 2010 WL 3517039, at *7 (M.D. Fla.
Sept. 7, 2010) (determining that a treating physician was not
required to issue an expert report where the physician was