Johnson v. E. Coast Waffles

1

HERBERT JOHNSON, Plaintiff, v. EAST COAST WAFFLES, Defendant.

No. 6:18-cv-608-JA-LHP

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

November 2, 2023

ORDER

JOHN ANTOON UNITED STATES DISTRICT JUDGE

This case is before the Court on Plaintiffs motion to exclude the opinions of Defendant's toxicology expert, Dr. Janci Lindsay, under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).^[1] Having considered Plaintiffs motion (see Docs. 119 & 119-1), and Defendant's response, (see Docs. 129, 129-1, 129-2, 129-3, 130 & 130-1), the Court finds that the motion must be denied.

I. BACKGROUND

Plaintiffs son, Herbert Johnson III, died after getting shot in the parking lot of one of Defendant's restaurants. (See Doc. 7 ¶ 4; Doc. 119 at 2; Doc. 129 at 2). Plaintiff now sues Defendant under section 768.21, Florida Statutes (the Florida Wrongful Death Act). (See Doc. 7 ¶¶ 6, 11, 26; Doc. 119 at 1). Two of Defendant's affirmative defenses are (1) that Herbert was “comparatively at fault” for his own death because he “was under the influence of. . . alcohol at the time” and (2) that he was “more than [fifty] percent at fault for his . . . own harm” because he “was under the influence ... to the extent that [his] normal faculties were impaired and/or [he] had a blood or breath alcohol level of 0.08 percent or higher.” (Doc. 113 at 4-5 ¶¶ 5-6; see Doc. 119 at 1-2; Doc. 129 at 2, 5). To support these defenses, Defendant retained Dr. Lindsay to opine about how the alcohol in Herbert's system affected him during the incident that ended in his death. (See Doc. 119 at 3; Doc. 129 at 5-6). Plaintiff now moves to exclude those opinions. (See Docs. 119 & 119-1).

II. LEGAL STANDARD

Federal Rule of Evidence 702 governs the admissibility of expert opinions and “compels” the Court “to perform [a] critical ‘gatekeeping' function.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc) (quoting Daubert, 509 U.S. at 589 n.7, 597); see Fed.R.Evid. 702 (“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.”). To decide the admissibility of an expert's opinions, the Court “engage[s] in a rigorous three-part inquiry” and considers (1) whether the expert is qualified to provide the opinions, (2) whether “the methodology by which the expert reache [d the opinions] is sufficiently reliable,” and (3) whether in providing the opinions, the expert will help the factfinder “understand the evidence or . . . determine a fact in issue.” Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Cherns., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). “The party offering the expert has the burden of' establishing the expert's qualifications, the methodology's reliability, and the opinions' helpfulness to the factfinder “by a preponderance of the evidence.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005).

III. DISCUSSION

In his motion to exclude, Plaintiff challenges all three parts of the Rule 702 inquiry qualifications, helpfulness to the jury, and reliability-focusing mainly on reliability. (See Doc. 119). But Defendant has met its burden of establishing all three parts by a preponderance of the evidence. (See Doc. 129).

A. Qualifications

Plaintiff conclusorily claims that “Dr. Lindsay does not have the knowledge to form an opinion regarding the role, if any, alcohol played” in Herbert's death. (Doc. 119 at 3). However, to the extent that Plaintiff challenges Dr. Lindsay's qualifications as a toxicologist, Defendant has established that her years of experience, training, and education qualify her to provide her opinions in this case. See Waters v. AIG Claims, Inc., 608 F.Supp.3d 1120, 1132 (M.D. Ala. 2022) (noting that “all of the experts [in the case, including Dr. Lindsay,] ha[d] extensive education, training, and knowledge in toxicology, ha[d] worked as toxicologists, and ha[d] taught courses in toxicology”).^[2]

B. Helpfulness to the Jury

Plaintiff also makes the unsupported assertion that Dr. Lindsay's opinions are “more likely to confuse or mislead” than to help the jury. (Doc. 119 at 3). But Dr. Lindsay's opinions may assist the jury in determining whether the comparative-fault affirmative defenses apply, as well as related issues. See, e.g., Fla. Stat. § 768.36(2) (“In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiffs normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than [fifty] percent at fault for his or her own harm.”); Griffis v. Wheeler, 18 So.3d 2, 5 (Fla. 1st DCA 2009) (finding section 768.36(2), Florida Statutes, applicable to suits brought under the Florida Wrongful Death Act).

C. Reliability

Plaintiff primarily challenges Dr. Lindsay's opinions on reliability grounds. (See Doc. 119 at 3-4). Plaintiff criticizes the bases of some of her opinions and points to supposed contradictions involving others. (See id. at 5- 6). Under Defendant's theory of Herbert's death, Herbert acted aggressively toward his shooter before he got shot, possibly hitting the man. (See id.). Plaintiff argues that Dr. Lindsay's opinions should be excluded because she bases them on Defendant's theory, which, Plaintiff says, is not supported by the police report. (Id.).^[3] And Plaintiff faults Dr. Lindsay for providing the “fully speculative and unsupported” opinion that “when any individual has alcohol in their system, alcohol influences all of th[at] person's decisions.” (Id. at 6 (emphasis in original)). Plaintiff further contends that Dr. Lindsay contradicts herself by opining both that an individual's level of intoxication “is subjective” and that “all people are affected by alcohol in the same way.” (Id. at 5-6).

Plaintiff also asserts that although Dr. Lindsay admits that “she has not been retained as a [human-factors] expert,” she opines that “human factors may have caused the alleged aggression that could have occurred due to alcohol.” (Id. at 6 (emphasis in original) (internal quotation marks omitted)).

These arguments are more appropriate for trial than for a Daubert motion. See Crawford v. ITW Food Equip. Grp., LLC, 977 F.3d 1331, 1339 (11^th Cir. 2020) (“[Identifying methodological flaws that ‘impugn the accuracy of. . . results' without questioning the ‘general scientific validity of. . . methods' is ‘precisely the role of cross-examination' and ‘go[es] to the weight, not the admissibility, of the evidence[.]'” (ellipses and second bracketed alteration in original) (quoting Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir. 2003))); see also Daubert, 509 U.S. at 596 (“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.”).

Plaintiff correctly identifies the factors for determining a methodology's reliability. (Doc. 119 at 4). See Quiet Tech. DC-8, 326 F.3d at 1341 (“In ascertaining the reliability of a particular scientific expert opinion, [courts] consider, to the extent possible: (1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community.”). But then Plaintiff disregards these factors. He does not discuss the methodology's error rate or whether the methodology has been tested, subjected to peer review and publication, or generally accepted in the scientific community. (See Doc. 119). In contrast, Defendant has established that Dr. Lindsay employed a reliable methodology to arrive at her opinions in this case: she looked to the medical examiner's report for the level of alcohol in Herbert's vitreal fluid, used a generally accepted toxicology table to opine about the effects of that level of alcohol on Herbert's mind and body, and, in the process, consulted other sources of information about the incident, like the police report, as well as other peer-reviewed research materials. (See Doc. 129 at 3-4; Doc. 129-1 at 3 6, 8). The Court is satisfied that Dr. Lindsay's methodology was reliable.

IV. CONCLUSION

Accordingly, Plaintiffs motion to exclude Dr. Lindsay's expert opinions, (see Docs. 119 & 119-1), is DENIED.

DONE and ORDERED.

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^[1] Defendant's motion for summary judgment and the parties' requests for oral argument thereon are still pending before the Court. (See Docs. 118, 122, & 134).

^[2] Plaintiff also cites one case from a state intermediate appellate court to support the proposition that “Florida cases have held that opinion testimony on items like habitual addiction or ‘human factors' are beyond the ‘experience and qualifications' of a toxicologist.” (See Doc. 119 at 4 (citing Hayes Robertson Grp., Inc. v Cherry, 260 So.3d 1126, 1129 (Fla. 3d DCA 2018))). Even if the Court ignores any differences between...