Eighth Circuit Rules District Court Must Use Federal Law for Admissibility of Expert Testimony
by Douglas Ankney
The U.S. Court of Appeals for the Eighth Circuit agreed with Plaintiff Craig Shipp that a district court erred when it failed to rely on federal law in determining the admissibility of the testimony of Shipp’s expert, but in this case the error was harmless.
Shipp was convicted of a fourth DWI offense and sentenced to two years in state prison where he was required to participate in the Modified Therapeutic Community Program at Southwest Arkansas Community Correction Center (“SWACCC”). Shipp wore orthotic shoes due to an amputated toe and a disorder called Charcot joint caused by his diabetes.
Shipp’s shoes were removed from him by the county jail and he arrived at the SWACCC on February l, 2016 without them. He immediately requested his orthotic shoes. On February 5, Dr. Mimo Lemdja removed a silver-dollar-sized piece of skin from an open wound on Shipp’s left foot. Dr. Lemdja refused to document her treatment of Shipp that day. According to Health Services Administrator Lenura Turner, Dr. Lemdja’s refusal was because “she didn’t want her name in the chart because it was too much of a liability.” On February 11, Shipp developed a new blister on his right foot. Shipp finally received his orthotic shoes on February 19, 2016. However, the wound on Shipp’s right foot did not heal. He was released from prison in August 2016. Eleven months later Shipp’s right leg was amputated below the knee due to an infection in his right foot.
Shipp sued for deliberate indifference to a serious medical need in violation of his Eighth Amendment rights and state-law negligence, naming numerous medical and correctional staff at SWACCC. Before trial, Shipp retained “jail and medical” expert Dr. Joseph William Wright.
Dr. Wright prepared a report “to a reasonable degree of medical certainty” and was deposed. However, Wright died afterwards and the district court permitted Shipp to substitute Lori Roscoe who was an advanced practice registered nurse certified as a nurse practitioner. The district court limited Roscoe’s scope to opinions already expressed in Wright’s report and deposition. However, Roscoe proffered additional evidence, stating Dr. Lemdja’s actions “deviate[d] from the standard of correctional healthcare” instead of a physician’s standard of care. Roscoe also stated in her report her opinions were expressed to “a reasonable degree of nursing and administrative certainty.”
The defendants moved for summary judgment. When deciding the motion, the district court excluded the additional opinions Roscoe submitted in her report. After the motion for summary judgment was granted, Shipp appealed. He argued, inter alia, that the district court erred in excluding Roscoe’s testimony by relying on Arkansas law.
The Eighth Circuit observed “[f]or a state law claim, a federal court may look to state law to determine witness competency in a civil action, Fed. R. Evid, 601, but it must use federal law for admissibility of expert testimony.” Fox v. Dannenberg, 906 F.2d 1253 (8th Cir. 1990). For federal claims like Shipp’s § 1983 action, the Rule 601 state law analysis does not apply because federal courts must use federal law, including the standard articulated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S., 579, 597 (1993).
But the Court determined the error to be harmless. Under Fed.R. Evid. 702, “[t]he opinion of a qualified expert is admissible if (1) it is based on sufficient facts or data, (2) it is the product of reliable principles and methods, and (3) the expert has reliably applied the principles and methods to the facts of the case.” Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012).
“Rule 702 does require that the area of the witness’s competence match the subject matter of the witness’s testimony.” Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1101 (8th Cir. 2006). Roscoe’s academic training, licensure, and scope of practice did not qualify her to opine on a physician’s standard of care; thus, she did not have sufficient “specialized knowledge [to] help the trier of fact to understand the evidence or determine a fact in issue.” Rule 702. Roscoe had offered her opinions “to a reasonable degree of nursing and administrative certainty” and proffered Dr. Lemdja’s actions “deviated from the standard of correctional healthcare” in lieu of the physician’s standard of care.
Roscoe’s testimony was also cumulative to the expert testimony of Dr. Wright. Fed. R. E vid. 403. Excluding an expert’s testimony that is cumulative is harmless error. Patterson v. State Aute Mut. Ins. Co., 105 F. 3d 1251, 1253 (8th Cir. 1997).
Accordingly, the Court affirmed the decision of the District Court. A petition for rehearing was denied. See: Shipp v. Murphy, 9 F.4th 694 (8th Cir. 2021)
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Related legal case
Shipp v. Murphy
|Cite||9 F.4th 694 (8th Cir. 2021)|
|Level||Court of Appeals|