Dillard v. Smith

558 F.Supp.3d 308

Cleon Elroy DILLARD, Plaintiff,

v.Lt. SMITH, Defendant.

Civil Action No. 7:20-cv-00151

United States District Court, W.D. Virginia, Roanoke Division.

Signed September 7, 2021

Cleon Elroy Dillard, Madison Heights, VA, Pro Se.

Joseph Anthony Piasta, Johnson, Ayers & Matthews PLC, Roanoke, VA, for Defendant.

MEMORANDUM OPINION

THOMAS T. CULLEN, UNITED STATES DISTRICT JUDGE

Cleon Elroy Dillard, a prisoner proceeding pro se , filed this civil action under 42 U.S.C. § 1983 against Rodney Smith, a deputy at the Martinsville City Jail. Dillard claims that Smith used excessive force against him while he was being booked into the Jail on September 7, 2019. In particular, Dillard alleges that Smith slammed his head into a wall, causing severe head pain and dental trauma. But Dillard also contends that on October 23, 2019, more than six weeks later, he was taken to a hospital for seizure-like symptoms and underwent surgery for a subdural hematoma. According to Dillard, these serious, but later-manifesting, medical conditions were also caused by Smith's excessive use of force.

The case is scheduled for a jury trial on September 9, 2021. In advance of trial, Dillard and Smith filed motions in limine seeking to exclude certain types of testimony regarding the nature and extent of Dillard's alleged injuries. Specifically, Smith has moved to preclude Dillard from testifying or presenting any evidence regarding the symptoms and conditions for which Dillard was hospitalized and treated in October 2019. (See ECF No. 65.) Dillard, in turn, has moved to exclude the opinions of Smith's medical expert, Dr. Richard L. Wilson, Jr., a physician in Blacksburg, Virginia. (See ECF No. 59). The court heard oral argument on these and other motions during a pretrial conference on August 31, 2021. For the reasons explained below, the motions in limine will be granted in part.¹

Discussion

I. Smith's Motion in Limine

Smith seeks to preclude Dillard from offering testimony or other evidence regarding the symptoms and conditions for which Dillard was hospitalized in October 2019, including the subdural hematoma that required surgery. Smith argues that expert testimony is necessary to establish a causal connection between these particular medical issues and the alleged use of force. Smith further emphasizes that Dillard did not identify any expert witnesses during discovery.

In a § 1983 action, the plaintiff must prove that the defendant's conduct was the proximate cause of a claimed injury. Kane v. Lewis , 604 F. App'x 229, 234 (4th Cir. 2015). "For damages to be proximately caused by a constitutional tort, a plaintiff must show that, except for that constitutional tort, such injuries and damages would not have occurred." McCaskill v. Yankalunas , 245 F. App'x 274, 279 (4th Cir. 2007) (quoting Jackson v. Sauls , 206 F.3d 1156, 1168 (11th Cir. 2000) ).

It is well-settled that expert testimony is "not always necessary to establish causation" in cases involving the alleged use of excessive force. Zartner v. Miller , 760 F. App'x 558, 563 (10th Cir. 2019) ; see also Parson v. Miles , No. 4:17-cv-00708, 2020 WL 58287, at *6 n.9 (D.S.C. Jan. 6, 2020) (noting that the "there is no ‘blanket rule’ requiring expert testimony in excessive force cases") (quoting Kopf v. Skyrm , 993 F.2d 374, 378 (4th Cir. 1993) ). Courts have consistently held that "[n]o expert testimony is required to assist jurors in determining the cause of injuries that are within their common experiences or observations." Hendrickson v. Cooper , 589 F.3d 887, 892 (7th Cir. 2009). For instance, "a causal connection between an altercation and an injury may be inferred in cases in which a visible injury or a sudden onset of an injury occurs." Ziesmer v. Hagen , 785 F.3d 1233, 1238 (8th Cir. 2015) ; see also Zartner , 760 F. App'x at 563 (noting that "expert testimony might be unnecessary to find causation when a brawl leads to a broken nose or black eye"). Additionally, a plaintiff may rely on his own testimony to establish that he experienced pain as a result of the alleged use of excessive force. See Hendrickson , 589 F.3d at 892 (rejecting the defendant's argument that the plaintiff was required to support his claims of increased back pain with expert medical evidence and concluding that the plaintiff's own testimony that the defendant "beat him up and it hurt really bad" was sufficient to prevail on a claim of excessive force); Ziesmer , 785 F.3d at 1239 (holding that neck pain reportedly experienced by the plaintiff shortly after an alleged altercation with an officer was "within the range of common experience" and did not require expert testimony) (internal quotation marks omitted).

On the other hand, proof of causation generally must be established by expert testimony when an injury is sophisticated or complex. Ziesmer , 785 F.3d at 1239. Likewise, "when an injury lacks an obvious origin and multiple causes are possible, expert medical testimony is necessary to prove causation between a use of force and an injury." Zartner , 760 F. App'x at 563 ; see also Barnes v. Anderson , 202 F.3d 150, 160 (2d Cir. 1999) (holding that the plaintiffs were required to produce expert medical evidence of causation in order to recover for a miscarriage under § 1983, given the uncertain timing of the pregnancy, the unclear nature of the physical contact challenged in the lawsuit, and the fact that the female plaintiff was physically assaulted by other individuals after the incident at issue).

In this case, Dillard claims that he suffered four types of injuries as a result of having his head slammed into a wall on September 7, 2019: (1) headaches or head pain; (2) dental trauma in the form of a chipped or lost tooth; (3) seizure-like symptoms; and (4) a subdural hematoma. The court concludes that expert testimony is required to establish that the subdural hematoma and associated seizure-like symptoms were caused by the alleged use of excessive force. Unlike the first two types of injuries, a subdural hematoma and seizure-like activity are complex medical issues that do not fall within the range of a jury's common knowledge and experience. See, e.g., Parker v. United States , 475 F. Supp. 2d 594, 598 (E.D. Va. 2007) (concluding that a factfinder would not know what symptoms suggest the possible existence of a subdural hematoma, whether or when the plaintiff exhibited such symptoms, or when the plaintiff's subdural hematoma developed). Additionally, it is undisputed that Dillard was not hospitalized for seizure-like symptoms and diagnosed with a subdural hematoma until October 23, 2019, and that Dillard's medical records indicate that he was involved in another altercation several days before he presented to the hospital. Given the complex nature of these particular medical issues, the significant time lapse between the alleged use of force and the onset of seizure-like symptoms, and the existence of other potential causes of the subdural hematoma, the court agrees with Smith that expert testimony is necessary to establish a causal link between the alleged use of force on September 7, 2019, and the symptoms and conditions for which Dillard received treatment the following month.

Dillard did not disclose any experts within the timeframe established by the court's pretrial order. (See ECF No. 51.) During the pretrial conference, Dillard confirmed that he did not have any experts to disclose, and that he did not intend to present any expert medical testimony at trial. In the absence of such testimony, Dillard cannot carry his burden of proving that the subdural hematoma and associated seizure-like symptoms were caused by the alleged use of excessive force. Accordingly, Smith's motion in limine will be granted in part, and Dillard will not be allowed to present any evidence or argument at trial pertaining to the medical issues for which he received treatment in October 2019.

As the court explained at the pretrial conference, Dillard will be allowed to testify as to his own physical condition immediately following and shortly after the alleged use of force on September 7, 2019. Specifically, Dillard may testify as to the pain, headaches, and dental trauma that he claims to have experienced. See, e.g., Hrichak v. Pion , 498 F. Supp. 2d 380, 382 (D. Me. 2007) ("A lay witness ... may testify regarding subjective symptoms, including, but not limited to, pain from or the existence of bruises, cuts, and abrasions resulting from the beating ... because it does not require the knowledge of an expert witness. Thus, Mr. Hrichak may testify as to the nature of the alleged excessive force as well as symptoms he suffered following the incident.") (internal quotation marks and citations omitted).

II. Dillard's Motion in Limine

Smith timely noticed Dr. Richard Wilson as a medical expert. (See ECF No. 58). Smith's pretrial disclosures include the following summary of Dr. Wilson's anticipated testimony:

It is anticipated that Dr. Wilson will testify by video deposition, the notice of which has been provided at ECF No. 50 .... Specifically, [Dr. Wilson] will opine that plaintiff was not injured on September 7, 2019, or during his subsequent brief incarceration, and that the plaintiff's claimed injury (broken teeth, subdural hematoma ) were caused by a separate trauma temporally proximate to the plaintiff's October 23, 2019 ER presentation and consistent with the plaintiff's initial report to medical providers on or about October 23, 2019.

(Id. at 2–3.) Dillard timely filed a motion in limine seeking to preclude Dr. Wilson from testifying at trial.² (ECF No. 59 at 1.)

Dr. Wilson's anticipated testimony includes two expert opinions: (1) that Dillard was not injured on September 7, 2019; and (2) that the subdural hematoma and other injuries for which Dillard received treatment the following month were caused by a separate altercation that occurred shortly before Dillard was taken to the hospital. The second opinion...