Orthopedic Surgery Expert Witness Opines on Injuries in Excessive Force Case

The plaintiffs filed a case against the defendants, the city and seven police officers. They claimed the police officers used excessive force and unlawfully arrested them.

Zach Barreto

Written by
— Updated on October 20, 2021

Orthopedic Surgery Expert Witness Opines on Injuries in Excessive Force Case

Court: United States Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Case Name: Plaintiff 1 v. Thibodaux City
Citation: 887 F.3d 726

The defendants retained an orthopedic surgery expert witness to opine on the plaintiffs’ chronic pain. However, the plaintiffs argued that the expert’s testimony exceeded his expertise.

Facts

The plaintiffs sued the city and seven police officers for unlawful arrest and excessive use of force. They alleged they were riding a truck with two friends when police officer no. 1 recognized one of the friends. Police officer no. 1 realized the friend had an outstanding warrant. He then intervened, instructed the friend to leave, and handcuffed her. However, officer no. 1 couldn’t place the friend in his vehicle because his K-9 dog was in the backseat. When officer no. 1 tended to the plaintiff’s friend, plaintiff 2 opened her door. Officer no. 1 ordered her to stay, and she abided. A few minutes later, more police, including officers 2, 3, and 4 arrived. An officer (which one is unclear) placed the friend behind a patrol vehicle.

Then, officers 1 and 2 entered the bus, telling riders to identify themselves. The plaintiffs’ other friend said she had no identification but gave her name and birthdate. She was not arrested. The plaintiffs declined to reveal themselves. Then, they remained in the truck using their phones. The police charged them for resisting an officer by refusing to identify themselves. The police dragged the plaintiffs from the vehicle to the ground.

According to plaintiff 2, Officer 2 yanked her from the truck by her hand and head. Plaintiff 1 claimed officer 2 opened her door, pulled her from the truck and slung her to the ground. Officers 3 and 4 testified that they came over to support the arrests. Although police said plaintiff 1 and plaintiff 2 screamed obscenities throughout the incident, plaintiff 1 insisted she was quiet. Officer 2 said plaintiff 2 kicked, screamed, and threatened to have him fired as he handcuffed her.  The police jailed plaintiffs 1 and 2.

The Defendants’ Orthopedic Surgery Expert Witness

Before trial, the plaintiffs filed numerous motions to exclude the testimony of the city’s orthopedic surgery expert witness. The court in part dismissed the plaintiff’s first request. The court essentially allowed the orthopedic surgery expert’s analysis and deposition. However, the court banned the expert from testifying on the plaintiff’s drug use and previous encounters with law enforcement. The court also prohibited the expert from discussing the specifics of the lawsuit. The expert witness testified exclusively by video deposition. After taking the deposition, the plaintiffs moved to exclude it. The plaintiffs made virtually the same arguments contained in their first exclusion motion. The district court denied it as untimely and cumulative.

Discussion

The plaintiffs contended that the orthopedic surgery expert witness was unqualified and the expert’s evidence surpassed his competence. The court disagreed. The district court accepted the expert’s testimony in part. The court decided after crediting the city’s uncontested claims that he was a board-certified orthopedic surgeon for nearly 40 years. Furthermore, the expert had qualified as an orthopedic surgeon in federal and state courts. Therefore, the orthopedic surgery expert witness was qualified. His evidence on the long-standing persistent pain of the plaintiffs was clearly within the scope of his expertise.

The district court also removed parts of the expert’s report that it felt could mislead and prejudice the jury. Additionally, the court gave his potential testimony explicit parameters. The plaintiffs’ second motion to withdraw the expert’s video deposition was similar to their first. The district court found the plaintiffs’ second motion to be premature. Nothing in the district court rulings was clearly erroneous.

Ruling

The court denied the plaintiffs’ motion to exclude the orthopedic surgery expert witness testimony.

Key Takeaways for Experts

Professional experience and legal involvement are two important aspects when it comes to establishing credibility. In this case, the court allowed the expert because he qualified as an expert in orthopedic surgery in federal and state courts. Furthermore, the expert had vast experience as a board-certified orthopedic surgeon. The easiest way to poke a hole in an expert’s testimony is through credibility. Make sure your testimony aligns with your expertise. By doing so, the opposing counsel will have a harder time attempting to exclude your opinion.

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