Frye v. Hamilton Cnty. Hosp., 18-CV-3031-CJW-MAR

JEREMY FRYE, Plaintiff, v. HAMILTON COUNTY HOSPITAL,d/b/a VAN DIEST MEDICAL CENTER;MERCY HEALTH NETWORK, INC;WEBSTER CITY/WEBSTER CITY POLICE DEPARTMENT, Defendants.

No. 18-CV-3031-CJW-MAR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION

June 7, 2019

ORDER

This matter is before the Court on defendant Hamilton County Hospital d/b/a Van Diest Medical Center's ("the Hospital") Partial Motion to Strike Opinions and Testimony of Expert David G. Stilley. (Doc. 59). Plaintiff filed a timely resistance (Docs. 61, 62), and the Hospital filed a timely reply to plaintiff's resistance. (Doc. 63). On May 24, 2019, defendant Mercy Health Network, Inc. joined in the Hospital's motion to strike. (Doc. 64). No party requested a Daubert hearing, and the Court considers this matter fully submitted. For the following reasons, the Hospital's motion is granted in part and denied in part.

I. BACKGROUND

The factual allegations in plaintiff's complaint are set fully in the Court's order on the Hospital's Partial Motion to Dismiss (Doc. 33, at 3-5), and the Court will not recount the full factual background of plaintiff's claims. Plaintiff's complaint alleges thirteen counts related to the Hospital's termination of plaintiff's employment and the events leading up to and following plaintiff's termination. In relevant part, plaintiff claims that the Hospital, which is publicly funded, violated plaintiff's right to be free from unreasonable searches under Article I, Section 8 of the Iowa Constitution and the Fourth Amendment to the United State Constitution (Counts I and II), that the Hospital wrongfully terminated plaintiff for refusing an unreasonable search in violation of the public policy set forth in Article I, Section 8 and the Fourth Amendment (Counts XI and XII), and that the Hospital violated Iowa Code Section 730.5 by terminating plaintiff for refusing a drug test that did not meet the statutory definition of a reasonable suspicion drug test (Count XIII). (Doc. 34).

The Hospital's drug and alcohol testing policy (the "Policy") states in relevant part:

D. When Drug or Alcohol Testing May be Conducted

1. The Hospital reserves the right to conduct any form of drug or alcohol testing permitted by law including, but not limited to, pre-employment, reasonable suspicion testing, post accident testing or random testing.

E. Reasonable Suspicion Testing

1. Any employee for whom a reasonable suspicion exists that the employee is under the influence of alcohol or an illegal or unauthorized substance will be subject to alcohol or drug testing.

2. For purposes of this policy, reasonable suspicion may be based upon, but is not limited to, any of the following;

a. observable phenomena while at work such as direct observation of drug use or abuse or of the physical symptoms or manifestations of being impaired due to drug or alcohol use;

b. abnormal conduct or erratic behavior while at work or a significant deterioration in work performance;c. a report of drug or alcohol use provided by a reliable and credible source;

d. evidence that an employee has manufactured, sold, distributed, solicited, possessed, used, or transferred drugs while working or while on the employer's premises or while operating any of the employer's vehicles, machinery or equipment.

(Doc. 62-6, at 2-3). Plaintiff alleges that the Hospital requested that plaintiff submit to a reasonable suspicion drug test because of behavior that the Hospital believed was "erratic." (Doc. 34, at 4-5). Plaintiff claims that under Article I, Section 8 and the Fourth Amendment, the Hospital "did not have probable cause to meet the standard of Procedure E.1, the 'reasonable suspicion' procedure" of the Hospital's drug testing policy. (Id., at 19, 21 & 23).

Plaintiff designated Dr. David Stilley as an expert witness. (Doc. 59-2). Dr. Stilley is a medical doctor specializing in emergency medicine. (Doc. 62-3). Dr. Stilley is also a certified medical review officer. (Doc. 62-4). Dr. Stilley received training regarding behaviors that would warrant a reasonable suspicion drug test as part of his training to be certified as a medical review officer. (Doc. 62-2, at 4). Dr. Stilley is the medical review officer for Prairie Meadows Racetrack and Casino (Id., at 3) and in that capacity Dr. Stilley reviewed Prairie Meadows' drug testing policy (Id., at 5). Dr. Stilley is also the chief medical officer of a clinic that provides occupational health services, including collecting specimens for drug testing. (Id., at 3-4). Some of the companies that use Dr. Stilley's clinic for specimen collection contact Dr. Stilley and ask for his advice about whether a situation warrants a reasonable suspicion drug test, and Dr. Stilley answers those questions "in a generic sense" but refers the company to their own company drug testing policy to determine if a test is appropriate. (Id.). In determining when he believes a reasonable suspicion drug test is appropriate, Dr. Stilley relies on his"knowledge and experiences as an emergency medicine physician treating patients with drug abuse and alcohol abuse," his training to obtain his certification as a medical review officer, and his experience with people who come in to his clinic. (Id., at 4). Dr. Stilley reviewed the American Association of Medical Review Officers' Website regarding reasonable suspicion drug tests (Id., at 6), and an article regarding reasonable suspicion drug testing published by Wolters Kluwer (Id.; Doc. 59-4) in reaching his opinions relevant to the Hospital's motion.

The Hospital moves to exclude portions of Dr. Stilley's anticipated testimony expressing certain opinions set forth in his report. (Doc. 59-1). Specifically, the Hospital seeks to prevent Dr. Stilley from expressing his opinions that 1) the Hospital lacked reasonable suspicion to request that plaintiff submit to a drug test, and 2) the Hospital was legally required to seek a reasonable suspicion drug test immediately after witnessing the erratic behavior that allegedly justified the test. (Doc. 59-1, at 5, 7). The Hospital asserts that the Court should exclude Dr. Stilley's testimony regarding the challenged opinions because they are improper legal conclusions as to the existence of reasonable suspicion under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Iowa Constitution, Dr. Stilley's opinions regarding the timing of the test are not relevant, Dr. Stilley is not qualified to opine as to the requirements of the Policy and its application to plaintiff, and because Dr. Stilley's methodology in determining whether the Hospital had reasonable suspicion to request the drug test is unreliable. (Doc. 59-1).

In response, plaintiff argues that Dr. Stilley is qualified to opine as to whether the Hospital had reasonable suspicion under the Policy based on his training, work experience, and review of published authorities regarding reasonable suspicion drug testing. (Doc. 62-1, at 3-5). Plaintiff likewise argues that Dr. Stilley's opinions regarding "reasonable suspicion" are not improper legal conclusions because Dr. Stilleyis opining as to the lack of "reasonable suspicion" as the term is used in the Policy, rather than the legal standard for "reasonable suspicion" under the Fourth Amendment or Article I, Section 8. (Id., at 5-8). Plaintiff also argues that the timing of the Hospital's request that plaintiff submit to a drug test is relevant because the timing of the requested test did not comply with the Policy, which "is the heart of one of [plaintiff's] claims against [the Hospital]." (Id., at 8).

The Hospital raises three arguments in its reply. The Hospital argues that despite Dr. Stilley's characterization of his opinion, it is still, in effect, a legal conclusion about the existence of reasonable suspicion in the constitutional context. (Doc. 63, at 2). Second, the Hospital argues that if Dr. Stilley is not testifying as to the existence of "reasonable suspicion" in the constitutional sense, then Dr. Stilley's testimony is not a proper expert opinion because the jury could understand and apply the plain meaning of "reasonable suspicion" in the Policy without expert testimony. (Id., at 2). Finally, the Hospital asserts that whether or not the Hospital violated the Policy is irrelevant to plaintiff's claims, and the "reasonable suspicion" standard is only relevant to whether the Hospital violated plaintiff's constitutional rights, and thus the probative value of any testimony regarding "reasonable suspicion" within the meaning of the Policy is substantially outweighed by the risk of confusing and misleading the jury. (Id., at 3).

II. APPLICABLE LAW

The Court serves as a gatekeeper to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). Under Federal Rule of Evidence 702, expert testimony is admissible where (1) the testimony is "based on scientific, technical, or other specialized knowledge," and is "useful to the finder of fact in deciding the ultimate issue of fact.," i.e. it is relevant; (2) the expert is "qualified to assist the finder of fact;" and (3) "the proposed evidence [is] reliable or trustworthy in an evidentiary sense, so that, ifthe 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) (citation omitted). The party offering expert testimony has the burden to show by a preponderance of the evidence that the testimony is admissible. See Krueger v. Johnson & Johnson Prof'l, Inc., 160 F. Supp. 2d 1026, 1030 (S.D. Iowa 2001), aff'd, 66 Fed. App'x 661 (8th Cir. 2003). A witness who offers expert opinions on multiple topics may be qualified as an expert on one topic but not others. See Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001) (holding that the...