Expert Witness's Inability To "Unbundle" Factors That Caused Plaintiff's Death Goes to Weight, Not Admissibility

In a Section 1983 civil rights excessive force action against a police officer and the town employing the officer, reversing summary judgment for defendants which trial judge granted based in part on the exclusion of medical examiner autopsy testimony about the cause of death, noting that whether an expert is unable to identify "one specific factor" where multiple factors may contribute to an injury goes to the weight of the evidence, not its admissibility, in Cyrus v. Town of Mukwonago, __ F.3d __ (7th Cir. Nov. 10, 2010) (No. 09-2331)

In the case, the estate of plaintiff Cyrus brought a 42 U.S.C. § 1983 civil rights excessive force action against a police officer (Czarnecki) and the town employing the officer for causing plaintiff's death. Allegedly the defendant used a Taser on the plaintiff multiple times in arresting him, violating the Fourth Amendment. According to the circuit, "Czarnecki Tasered Cyrus several ... times-there is a dispute about how many-in an effort to force compliance with the arrest. Once Cyrus was handcuffed, the officers turned him onto his back and found he was not breathing. He was pronounced dead upon arrival at the hospital." Cyrus, __ F.3d at __.

As part of discovery, the estate proffered expert testimony by "Dr. Lynda Biedrzycki, the Waukesha County Medical Examiner, who performed the autopsy on Cyrus's body and would testify about the results of her examination and the cause of Cyrus's death. Dr. Biedrzycki had certified the cause of death as 'sudden death during struggle and restraint,' and identified eight factors that she believed contributed to Cyrus's death ... Dr. Biedrzycki testified at her deposition that while she believed all eight factors contributed to Cyrus's death, she could not determine whether any one factor was more significant than the others." However, the trial judge excluded this testimony "because Dr. Biedrzycki could not 'unbundle' the factors contributing to Cyrus's death-that is, she could not isolate one factor as the primary cause of death-her opinion testimony on cause of death was inadmissible." The plaintiff failed to challenge this evidentiary ruling. Cyrus, __ F.3d at __.

With the exclusion of this expert testimony, the trial judge granted summary judgment to the defendant. Specifically the court found that "the material facts were undisputed, and in light of all the circumstances, Czarnecki's deployment of the Taser did not constitute excessive force as a matter of law." The plaintiff appealed.

The Seventh Circuit reversed and remanded, rejecting the defendant's contention that expert testimony was necessary to determine causation in the case. Noting that "[c]ommon-law rules of tort causation apply to § 1983 claims, and the general rule is that expert testimony is not necessary to prove causation 'if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience or observation.'' Cyrus, __ F.3d at __ (citing Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962) (quotation marks omitted).

The circuit concluded that such “primary facts” had been developed by the plaintiff so that summary judgment was inappropriate. Those "primary facts" included:

the close temporal proximity between the allegedly excessive force and Cyrus's death: Cyrus stopped breathing just a minute or two after being repeatedly shocked with the Taser, and this tight chronology bears on causation. Other evidence suggests that potential alternative causes of death may be ruled out. For example, the toxicology report, which the district court did not exclude, shows that Cyrus ingested no stimulants or narcotics other than a minimal amount of caffeine. There is no evidence that Cyrus had any prior injuries that could have caused his death during the confrontation with the officers. There is no evidence of any possible intervening causes of death. In short, although the exclusion of a significant part of the medical examiner's testimony leaves the Estate with a major gap in its case, the record is not so wholly devoid of evidence on which a jury could find causation that Czarnecki is entitled to judgment as a matter of law on this alternative basis.

Cyrus, __ F.3d at __.

In addition, the Seventh Circuit noted the possible role of Dr. Biedrzycki's testimony:

We note again that the district judge excluded Dr. Biedrzycki's testimony on cause of death because she could not 'unbundle' several contributing causes, which included Czarnecki's use of the Taser. But we have held that an expert's inability to isolate one specific factor when multiple factors cause an injury implicates the weight of the expert's testimony, not its admissibility. Because evidentiary weight is a jury question, expert testimony on the cause of an injury is admissible even when it does not eliminate all other possible causes of injury.
Cyrus, __ F.3d at __n.8 (citing Jahn v. Equine Servs., PSC, 233 F.3d 382, 390 (6th Cir. 2000) (“The fact that several possible causes might remain ‘uneliminated’ ... only goes to the accuracy of the conclusion, not to the soundness of the methodology.”; “In order to be admissible on the issue of causation, an expert's testimony need not eliminate all other possible causes of the injury.”)).

Federal Rules of Evidence