explaining cross-examination is an appropriate way of attacking “shaky” evidence
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- explaining cross-examination is an appropriate way of attacking “shaky” evidence
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The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DONNA M. REECE
as personal representative of the
Estate of Amos Reece, deceased PLAINTIFF
v. No. 5:20-CV-05122
OFFICER HALE, et al. DEFENDANTS
OPINION AND ORDER
Before the Court is Separate Defendant Shawna Stephens’s motion (Doc. 44) and brief in
support (Doc. 45) to exclude the expert testimony of Dr. Barry Gustin, M.D.. Plaintiff filed a
response (Doc. 48) and brief in opposition (Doc. 49). The motion will be DENIED.
Federal Rules of Evidence 702 and 703 govern the admissibility of expert testimony. Rule
702 provides
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) 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; (b) the testimony is based
on 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.
“The trial judge has the gatekeeping responsibility to ensure that an expert’s testimony both rests
on a reliable foundation and is relevant to the task at hand.” Mahaska Bottling Co., Inc. v. PepsiCo,
Inc., 441 F. Supp. 3d 745, 749 (S.D. Iowa 2019) (internal quotations and alterations omitted)
(citing Allen v. Brown Clinic, P.L.L.P., 531 F.3d 568, 573 (8th Cir. 2008)). To be admissible, an
expert’s testimony “must be reliable or trustworthy in an evidentiary sense, so that, if the finder of
fact accepts it as true, it provides the assistance the finder of fact requires.” Johnson v. Mead
Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014) (quoting Polski v. Quigley Corp., 538 F.3d
836, 839 (8th Cir. 2008)).
“The primary concern of Rule 702 is the underlying principles and methodology utilized
by the expert, rather than the expert’s conclusions.” Thomas v. FCA US LLC, 242 F. Supp. 3d
819, 823 (8th Cir. 2017) (citing Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012)). The
Court looks at “(1) whether the theory or technique can be tested, (2) whether the theory or
technique has been subject to peer review and publication, (3) the known or potential rate of error,
and (4) whether it is accepted in the relevant discipline.” Kuhn, 686 F.3d at 625. “The exclusion
of an expert’s opinion is proper only if it is so fundamentally unsupported that it can offer no
assistance to the jury.” Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997)
(internal quotations omitted).
Here, there is no dispute that Dr. Gustin is qualified to render an expert opinion. Dr. Gustin
is board-certified in emergency medicine, has published peer-review articles, and has practiced
emergency medicine since 1984. Defendant instead argues Dr. Gustin’s testimony should be
excluded because Dr. Gustin’s opinion is not based on reliable facts or data, is not helpful to a
jury, is contradictory, and is purely based on hypotheses. Generally, the ‘factual basis of an expert
opinion goes to credibility of the testimony, not admissibility, and it is up to the opposing party to
examine the factual basis for the opinion in cross-examination.’” David E. Watson, P.C. v. United
States, 668 F.3d 1008, 1014 (8th Cir. 2012) (quoting Neb. Plastics Inc. v. Holland Colors Ams.,
Inc., 408 F.3d 410, 416 (8th Cir. 2005)). “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Thomas, 242 F. Supp. 3d at 824 (citation omitted).
The Court finds at this gate-keeping stage Dr. Gustin’s opinion is adequately reliable and relevant
to be introduced at trial, and Defendant can attack Dr. Gustin’s application of the facts and
methodology through cross examination. See id. (explaining cross-examination is an appropriate
way of attacking “shaky” evidence).
IT IS THEREFORE ORDERED that Separate Defendant Shawna Stephens’s motion
(Doc. 44) is DENIED. Defendant may renew the motion arguing Dr. Gustin has not reliably
applied the principles and methods to the facts of the case under Rule 702(d) of the Federal Rules
of Evidence at trial.
IT IS SO ORDERED this 2nd day of December, 2021.
/s/P. K. Holmes,
P.K. HOLMES, III
U.S. DISTRICT JUDGE