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Greer v. Ivey

United States District Court, M.D. Florida, Orlando Division

December 23, 2019

RANDALL GREER, Plaintiff,
v.
WAYNE IVEY, TOWN OF INDIALANTIC, JAMES HAMAN and DIOMEDIS CANELA, Defendants.

          ORDER

          CARLOS E. MENDOZA I UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court on Plaintiff's Daubert Motion to Exclude Opinions of Non-Retained Defense Expert Krzysztof Podjaski (“Motion, ” Doc. 323).[1] 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.[2] For the reasons stated herein, Plaintiff's Motion will be denied.

         I. Background

         Plaintiff, Randall Greer, brings this action as the personal representative of his brother, Christopher Greer, [3] (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[4] 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).

         Canela 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.

         Dr. 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.

         II. Rule 26

         A. Legal Standard

         Federal 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).

         B. Analysis

         As 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).

         It is 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.

         Despite 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.

         At his 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 ...


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