ALSTON v. LOCKLEAR

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MASTER MAURICE ALSTON, )

)

Plaintiff, )

)

v. ) 1:19-CV-96

)

CONNIE LOCKLEAR JONES M.D., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge.

This matter is set for trial on May 31, 2022, on Mr. Alston’s remaining claim of

medical negligence against defendant Dr. Jones. Pending are Dr. Jones’ motion to

exclude expert testimony, Dr. Jones’ motion in limine, and Mr. Alston’s motion in

limine. Dr. Jones’ motion to exclude expert testimony will be denied. As to the parties’

motions in limine, to a limited extent they will be granted. Otherwise, the motions raise

issues that are better handled at trial and will be denied without prejudice.

1. Dr. Jones’ Motion to Exclude Expert Testimony

Dr. Jones moves to exclude expert testimony at trial by Dr. Robert Toler and Dr.

Clayton Wisely. Doc. 83. Both Dr. Toler and Dr. Wisely have treated Mr. Alston for

glaucoma, and Mr. Alston designated them as persons who may offer expert testimony as

non-retained experts. See Doc. 86-1. Dr. Jones contends that neither can provide expert

medical opinions to a reasonable degree of medical certainty as to proximate cause. Doc.

86 at 5.

When Dr. Jones contended that Mr. Alston’s medical malpractice claim should be

dismissed for failure to comply with Rule 9(j) of the North Carolina Rules of Civil

Procedure, the Court previously held that Rule 9(j) does not apply. See Doc. 98 at 13–16.

Similarly, Mr. Alston’s failure to obtain a 9(j) certificate does not bar the expert

testimony of either treating physician. As to the testimony of Dr. Wisely, Dr. Jones

makes no other argument for exclusion, so the motion will be denied.

As to Dr. Toler, Dr. Jones’ arguments are more in the nature of a sufficiency-of-

the-evidence challenge, and it is not completely clear which of Dr. Toler’s opinions that

Dr. Jones seeks to exclude. Mr. Alston need not prove his entire case through just one

witness. As a treating health care provider, Dr. Toler can explain the kind of treatment he

provided and why, and his opinions are likely to be helpful to the jury. The motion will

be denied as to Dr. Toler. To the extent a particular question or answer raises specific

concerns, Dr. Jones can object at trial.

2. Dr. Jones’ Motion in Limine

a. Medical Witnesses

Dr. Jones raises a different challenge to the admissibility of testimony by Dr. Toler

and Dr. Wisely in her motion in limine, Doc. 95, contending that they are not qualified to

offer testimony about the standard of care because they specialize in a different area of

medicine than she does. Id. at 6. Dr. Jones is a family medicine physician, Doc. 60-1 at

¶ 4, Dr. Toler is an optometrist, Doc. 95-1 at 1, and Dr. Wisely is an ophthalmologist. Id.

at 2. Thus, Dr. Jones contends, the testimony of Dr. Toler and Dr. Wisely cannot meet

the standards for admissibility in N.C. R. Evid. 702(b), which requires, inter alia, that an

expert witness testifying about the standard of healthcare in a medical malpractice action

must specialize in the same specialty or a similar specialty that includes the performance

of the procedure that is the subject of the complaint as the party against whom the

testimony is offered. See N.C. Gen. Stat. § 8C-1, Rule 702(b).

Dr. Jones assumes without discussion that the state rule of evidence governing

expert testimony in medical negligence cases applies. Ordinarily, the Federal Rules of

Evidence control the admissibility of expert testimony. See In re C.R. Bard, Inc. MDL.

No. 2187, Pelvic Repair Sys. Prods. Liab. Litig., 810 F.3d 913, 919 n.1 (4th Cir. 2016);

Creekmore v. Maryview Hosp., 662 F.3d 686, 690 (4th Cir. 2011). But there are good

reasons for following a state evidentiary rule if the claim at issue is governed by state

law, as is the case here, and the rule of evidence is intertwined with the substantive law.

See Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109–10 (4th Cir. 1995); Creekmore, 662

F.3d at 690.

In Creekmore, for example, the Fourth Circuit held that the district court did not

abuse its discretion in finding an expert’s testimony was admissible under a Virginia

evidence rule applicable to medical negligence cases. 662 F.3d at 690, 693. In so doing,

the court noted that because the expert testimony was required for a medical malpractice

claim under state law to prove the standard of care, “the sufficiency of its substance” was

governed by state law. Id. at 690. The court implied it therefore was appropriate to

follow the intertwined state rule of evidence. Id. (citing Hottle, 47 F.3d at 110).

Since the decision in Creekmore, numerous district courts in the Fourth Circuit

have generally applied special state evidentiary rules applicable to expert testimony in

medical negligence cases where state law otherwise applies. See N.O. v. Alembik, 160 F.

Supp. 3d 902, 904 (E.D. Va. 2016), aff’d, 649 F. App’x 895 (4th Cir. 2017); Hysell v.

Raleigh Gen. Hosp., No. 18-CV-1375, 2020 WL 3130423, at *3 (S.D. W. Va. June 12,

2020); Washington v. Brooks, No. 20-CV-88, 2022 WL 89171, at *12 (E.D. Va. Jan. 7,

2022). This appears to be the consensus view across circuits.1

Mr. Alston contends that Pledger v. Lynch, 5 F.4th 511 (4th Cir. 2021) forecloses

application of N.C. R. Evid. 702(b) in federal court, Doc. 107 at 3–4, but the holding in

Pledger does not seem to apply here. Pledger involved a case in which the Federal Rules

of Civil Procedure conflicted with state law and it did not address under what

circumstances state evidentiary rules apply in federal court. 5 F.4th at 517–21.

Assuming the state evidence standard for admissibility applies, Dr. Jones’ motion

as framed is largely a red herring. Mr. Alston does not assert that Dr. Jones was

negligent in the specific way she herself treated Mr. Alston’s eye injury, that she failed to

comply with the standard of care applicable to optometrists or ophthalmologists, or that

family medicine doctors should be held to the standard of care applicable to eye

specialists. Mr. Alston claims Dr. Jones negligently failed to refer him to a specialist.

1 In holding that state expert opinion rules apply in medical negligence cases before federal

courts on diversity, supplemental jurisdiction, or under the FTCA, other circuits have explicitly

pointed to Fed. R. Evid. 601, which requires “in a civil case, state law governs the witness’s

competency regarding a claim or defense for which state law supplies the rule of decision.”

These courts have held that Fed. R. Evid. 601 “requires federal courts to apply state rules for

expert witness qualification when determining the competency of expert witnesses to testify

regarding medical malpractice claims that turn on questions of state substantive law.” Coleman

v. United States, 912 F.3d 824, 831 (5th Cir. 2019); accord Legg v. Chopra, 286 F.3d 286, 289–

92 (6th Cir. 2002); McDowell v. Brown, 392 F.3d 1283, 1294–95 (11th Cir. 2004); Liebsack v.

United States, 731 F.3d 850, 855–57 (9th Cir. 2013).

To this extent, the matter is better evaluated at trial after Mr. Alston has had a

chance to lay an appropriate foundation with these witnesses. If, as seems likely, North

Carolina’s requirements for expert testimony in a medical malpractice action apply, Dr.

Jones may be correct that the testimony from Mr. Alston’s experts about the standard of

care is not admissible. But it may be, for example, that Mr. Alston’s treating providers,

based on their training and experience, are familiar with the standard of care applicable

when any health care provider evaluates whether to make referrals to optometrists or

ophthalmologists and that they use the same basic eye exam used by Dr. Jones and other

family physicians that determines whether a referral to an eye specialist is appropriate.

See, e.g., Roush v. Kennon, 188 N.C. App. 570, 574–76, 656 S.E.2d 603, 606–07 (2008)

(holding a general dentist testifying about the standard of care relevant to extracting a

tooth qualified as an expert in a case involving an oral and maxillofacial surgeon

defendant because the general dentist had significant experience with oral surgery). Dr.

Jones’ motion in limine will be denied without prejudice to renewal at trial.

Dr. Jones makes one final challenge to the testimony of Dr. Toler and Dr. Wisely,

contending they should not be allowed to testify about future medical expenses. Doc. 95

at 8–9. Mr. Alston designated both to testify about the impacts of delayed treatment,

Doc. 95-1, which logically includes future treatment likely to be needed and, if the

witness has knowledge, what such treatments are likely to cost. The motion in limine is

denied without prejudice to objection at trial if and when this testimony is offered, should

Mr. Alston be unable to lay a sufficient foundation.

b. Dismissed Claims

Dr. Jones asks that Mr. Alston not be allowed to mention his claims that have been

dismissed or offer evidence relevant only to dismissed claims. Doc. 95 at 1–2. That is a

generally sensible rule, and Mr. Alston has not stated any intention to mention these

claims. See generally Doc. 107. The Court will preclude all counsel and witnesses from

referring to claims that have been dismissed, though not necessarily to the underlying

facts, if they are otherwise relevant and raise no Fed. R. Evid. 403 concerns. If and when

Dr. Jones believes Mr. Alston is offering evidence irrelevant to the remaining claim, she

can object at trial.

c. Testimony by Mr. Alston on Causation

Dr. Jones asks that Mr. Alston not be allowed to testify about medical issues

outside his personal experience. Doc. 95 at 3–4. There is nothing to indicate Mr. Alston

has any medical training, and he will not be allowed to testify as to causation. To the

extent he testifies about what treating physicians other than Dr. Jones told him, such

testimony is unlikely to be admissible for the truth of those statements. But it may be

admissible for more limited purposes, such as to explain why Mr. Alston took or did not

take action. Mr. Alston will be prohibited from offering his own testimony as to

causation; beyond this Dr. Jones can object at trial.

d. Prison Rules and Regulations

Dr. Jones seeks to exclude any evidence or testimony about prison rules or

regulations. Id. at 4–5. Mr. Alston agrees that certain policies are no longer relevant

given the court’s summary judgment rulings. Doc. 107 at 9. Beyond this, the Court is

not entirely clear on this motion. Dr. Jones has not identified with clarity what rules and

regulations are at issue, explained why they are not relevant, or made a clear argument as

to why otherwise relevant prison rules or regulations would not be admissible. If Dr.

Jones herself identified an eye trauma assessment protocol as applicable to Mr. Alston’s

care, it is difficult to understand why that would not be admissible. See id. With no

context, the Court cannot evaluate whether and to what extent it might or might not be

appropriate to question Mr. Alston about whether certain rules or regulations were or

were not followed. The motion will be denied without prejudice to objection at trial.

To the extent the motion is directed to evidence of and about a federal Bureau of

Prisons standard, the Court likewise does not have enough information to make an

informed decision at this point. Neither party has been clear about what these standards

say nor have they directed the Court’s attention to any case law. The Court will evaluate

this at trial, if and when such evidence is offered and Dr. Jones objects.

e. Undisputed Matters.

Dr. Jones also asks the court to prohibit mention of several other items as to which

Mr. Alston has made no argument to the contrary. Doc. 95 at 9–12. As Mr. Alston has

not expressed any intention to use exhibits during opening statements, the Court will

preclude both sides from doing so. Otherwise, Dr. Jones’ requests cover evidence that is

generally inadmissible or that raises substantial Fed. R. Evid. 403 concerns, and the Court

will prohibit counsel and the witnesses from mentioning or asking about the following:

1) The statutory cap on non-economic damages;

2) Liability insurance;

3) Settlement discussions;

4) Application of res ipsa loquitur;

5) Golden Rule arguments;

6) Evidence suggesting a party will pay fees to a testifying expert witness;

7) Prior lawsuits, claims, or alleged “bad acts” by Dr. Jones;

8) Unspecified “safety rules” or other standards not specifically identified by a

knowledgeable witness.

3. Mr. Alston’s Motion in Limine

a. Mr. Alston’s Criminal History

Mr. Alston contends that he should not be cross-examined about the fact of his

felony convictions. Doc. 97 at 2. First, as to any convictions that occurred more than ten

years ago, Mr. Alston says, and Dr. Jones does not deny, that Dr. Jones has not given

reasonable written notice of her intent to use such evidence. That evidence will be

excluded.

As to the conviction and sentence Mr. Alston is presently serving, the parties have

not provided the Court with any information about this conviction, and the Court does not

even know what crimes are at issue. Without this information, the Court cannot make the

evaluation called for by Fed. R. Evid. 609. Dr. Jones shall advise the Court and Mr.

Alston’s counsel outside the presence of the jury before making specific reference to

details of Mr. Alston’s conviction and sentence of current confinement or before asking

Mr. Alston about the conviction. If such questions are allowed, the Court expects to limit

them to “the name of the crime, the time and place of conviction, and the punishment,”

United States v. Boyce, 611 F.2d 530, 530 (4th Cir. 1979) (per curiam); accord United

States v. Mitchell, 1 F.3d 235, 245 (4th Cir. 1993); United States v. Howell, 285 F.3d

1263, 1270 (10th Cir. 2002) (“After conducting the Rule 403 balancing, the court may

determine . . . certain aspects of evidence of [a] conviction[] are properly excluded.”).

The Court will give a limiting instruction on request, telling the jury to consider the

evidence only to the extent it bears on Mr. Alston’s credibility.

To the extent Mr. Alston contends he should not be cross-examined about the

specific acts leading to his conviction, Doc. 97 at 3, the motion is tentatively granted. If

the Court allows cross-examination about the crime of conviction and the sentence, or

admits the criminal judgment, that should be sufficient for the jury to evaluate Mr.

Alston’s credibility. More than that is likely to lead to a waste of time and to

significantly increase the likelihood of unfair prejudice. See Mitchell, 1 F.3d at 245. If,

however, Mr. Alston attempts to explain away the convictions or to deny his guilt or

otherwise makes the underlying facts leading to his conviction relevant, the Court will

revisit this issue at Dr. Jones’ request.

Pursuant to Fed. R. Evid. 403, the motion is tentatively granted to the extent Mr.

Alston seeks to prohibit Dr. Jones from asking him about arrests or other aspects of his

criminal history. Doc. 97 at 2–5. Extrinsic evidence is inadmissible under Fed. R. Evid.

608(b) to the extent it might be offered as relevant to credibility, and otherwise no

showing has been made that any such evidence would fall within the parameters of Fed.

R. Evid. 404(b)(2).

b. Mr. Alston’s Prison Disciplinary Record

Mr. Alston asks the Court to prohibit Dr. Jones from offering evidence of the

infractions he has incurred while incarcerated. Doc. 97 at 2. Dr. Jones contends these are

relevant to Mr. Alston’s credibility and “propensity for truthfulness.” Doc. 99 at 3.

Under Fed. R. Evid. 608(b), “extrinsic evidence is not admissible to prove specific

instances of a witness’s conduct in order to attack the witness’s character for

truthfulness.” To the extent Dr. Jones proposes to offer prison records of these

infractions, i.e., extrinsic evidence, Mr. Alston’s motion is granted.

The court can allow inquiry on cross-examination if it is probative of the witness’s

character. Id. To the extent Dr. Jones has a good faith basis to ask about episodes of

attempted staff bribery or making false allegations against staff, those would seem to be

relevant to credibility, and the Court will allow a limited number of questions about the

events themselves. But the fact that the prison system has found him guilty or

responsible for such infractions will not be admitted, and Dr. Jones should not include

such information in her questions. At some point, sustained questioning will implicate

Fed. R. Evid. 403, so defense counsel should ask the most important questions first and

be prepared to limit this line of inquiry so as not to cause unfair prejudice. Counsel are

reminded that arguing with the witness will not be allowed.

c. Other Lawsuits

Mr. Alston seeks to prohibit inquiry on cross-examination or other evidence that

he has filed other lawsuits against prison officials. Doc. 97 at 5. Dr. Jones contends

these may be used to establish Mr. Alston’s “routine practice” or habit of filing lawsuits

against prison officials. Doc. 99 at 4. The cases cited by Dr. Jones are discovery cases,

not evidence decisions, and do not support Dr. Jones’ position. Fed. R. Evid. 406

governs evidence of habit, and the filing of a few lawsuits is not the kind of evidence of

repetitive conduct contemplated by that rule. See Fed. R. Evid. 406 advisory committee’s

notes (offering as examples of habits as “going down a particular stairway two stairs at a

time, or of giving the hand-signal for a left turn, or of alighting from railway cars while

they are moving,” in other words acts that “may become semi-automatic”); United States

v. Queen, 132 F.3d 991, 995 (4th Cir. 1997) (“Federal Rule of Evidence 406 recognizes

the probative value of repetitive conduct[.]”).

Moreover, the fact that Mr. Alston has filed lawsuits against other prison staff is

not particularly relevant. It is evident from Dr. Jones’ brief that she wants to show the

dismissal of those lawsuits, not the filing of those lawsuits, presumably to argue that Mr.

Alston has a habit of filing meritless lawsuits. To the extent this is proper at all, which

the Court doubts, it would be unfairly prejudicial, confuse the jury, and waste court time.

Mr. Alston’s motion to prohibit evidence that he has filed other lawsuits against prison

officials is granted.

d. Cross-Examination About Complaint

Mr. Alston seeks to bar Dr. Jones from using his unverified pleadings as evidence

or to impeach him at trial with an unverified statement prepared by counsel. Doc. 97 at 5.

But Mr. Alston himself filed the pro se complaint here, Doc. 1, and surely it qualifies as

an admission, to the extent he makes statements within his personal knowledge. See Fed.

R. Evid. 801(d). Mr. Alston has not pointed to any particular part of the complaint that

would be unfairly prejudicial or irrelevant. Dr. Jones may question Mr. Alston about

relevant factual assertions within Mr. Alston’s personal knowledge made in his pro se

complaint. If Dr. Jones asks questions about matters alleged in the complaint that are not

within Mr. Alston’s personal knowledge, Mr. Alston may object and the Court will likely

sustain the objection as not helpful to the jury, depending on context.

e. Comments on Failure to Produce Evidence

Mr. Alston seeks to prohibit Dr. Jones from “making any reference to or comment

about [Mr. Alston’s] failure to call witnesses or produce evidence.” Doc. 97 at 5–6. Dr.

Jones agrees not to comment on the number of witnesses. Doc. 99 at 5. Beyond this, the

motion is denied. During closing argument, counsel are permitted to comment on the

presence or absence of evidence.

f. Testimony By Dr. Jones as to Standard of Care

Mr. Alston seeks to exclude testimony by Dr. Jones that in her opinion she

complied with the standard of care. Doc. 97 at 6. Dr. Jones does not intend to offer such

testimony. Doc. 99 at 5–6. Dr. Jones may testify to her usual practices.

g. Undisclosed Evidence

Finally, Mr. Alston moves to exclude evidence not disclosed. Doc. 97 at 6. This

motion is premature and will be denied. Mr. Alston has not pointed to any specific

exhibit on Dr. Jones’ exhibit list that was not disclosed. If Dr. Jones seeks to admit any

undisclosed evidence during the trial, Mr. Alston may object then.

It is ORDERED that:

1. Dr. Jones’ motion to exclude Mr. Alston’s non-retained experts, Doc. 83, is

DENIED.

2. Subject to developments at trial, Dr. Jones’ motion in limine, Doc. 95, is

GRANTED in part and DENIED in part as follows:

a. Dr. Jones’ motion to exclude medical testimony of Dr. Toler and

Dr. Wisely about the standard of care and future medical expenses

is denied without prejudice to renewal at trial.

b. All counsel and witnesses are precluded from referring to claims

that were filed and later dismissed, but they are not prohibited from

mentioning underlying facts, assuming those facts are relevant and

not distracting.

c. Mr. Alston is prohibited from testifying about medical causation.

d. The parties are prohibited from offering evidence about specific

prison rules or regulations that are no longer relevant given the

Court’s summary judgment rulings. Beyond this, Dr. Jones’ motion

to exclude any evidence or testimony about prison rules or

regulations, including evidence about a federal Bureau of Prisons

standard, is denied without prejudice to objection at trial.

e. Counsel of both parties are prohibited from using exhibits during

opening statements.

f. Counsel and the witnesses are prohibited from mentioning or asking

about the following: 1) the statutory cap on non-economic

damages, 2) liability insurance, 3) settlement discussions, 4)

application of res ipsa loquitur, 5) Golden Rule arguments, 6)

evidence suggesting a party will pay fees to a testifying expert

witness, 7) prior lawsuits, claims, or alleged “bad acts” by Dr.

Jones, 8) unspecified “safety rules” or other standards not

specifically identified by a knowledgeable witness.

3. Subject to developments at trial, Mr. Alston’s motion to exclude evidence,

Doc. 96, is GRANTED in part and DENIED in part as follows:

a. Dr. Jones shall not cross-examine Mr. Alston about any of his

felony convictions that occurred more than ten years ago, subject to

reconsideration at trial if and when Dr. Jones raises the matter

outside the presence of the jury.

b. Dr. Jones shall advise the Court and Mr. Alston’s counsel outside

the presence of the jury before making specific reference to details

of Mr. Alston’s conviction and sentence of current confinement or

before asking Mr. Alston about the conviction. The Court expects

to limit any such questioning to the name of the crime, the time and

place of conviction, and the punishment.

c. Dr. Jones shall not cross-examine Mr. Alston about the specific acts

leading to his conviction unless he attempts to explain away the

convictions, deny his guilt, or otherwise makes the underlying facts

leading to his conviction relevant, in which case the Court will

revisit this issue at Dr. Jones’ request.

d. Dr. Jones is prohibited from asking Mr. Alston about his arrests or

other aspects of his criminal history.

e. Dr. Jones is prohibited from offering documentary evidence of Mr.

Alston’s disciplinary record, i.e. extrinsic evidence, to impeach his

credibility.

f. On cross-examination, Dr. Jones may ask a limited number of

questions about specific conduct reflected in Mr. Alston’s prison

disciplinary record to the extent the underlying conduct is relevant

to his credibility. Dr. Jones shall not include any information about

whether the prison system found him guilty or responsible for such

infractions in her questions, and such evidence is excluded.

g. Dr. Jones is prohibited from inquiring about or offering evidence

that Mr. Alston has filed other lawsuits against prison officials or

about the results of those lawsuits.

h. Dr. Jones may question Mr. Alston about relevant factual statements

and admissions in his pro se complaint, to the extent they are

matters within his personal knowledge. Beyond that, Mr. Alston

may object at trial if a particular question about the complaint is not

likely to lead to evidence helpful to the jury.

i. Dr. Jones shall not comment on the number of Mr. Alston’s

witnesses. Counsel for both parties are permitted to comment on

the presence or absence of evidence during closing argument.

j. Dr. Jones shall not testify that in her opinion she complied with the

standard of care but she may testify to her usual practices.

k. Mr. Alston’s motion to exclude evidence not disclosed is denied

without prejudice to objection at trial, if and when Dr. Jones offers

such evidence.

4. Counsel shall instruct clients and witnesses about the terms of this Order

and direct them not to mention prohibited matters without permission from

the Court.

This the 5th day of May, 2022.

fab. le

UNITED STATES DIS JUDGE

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