Robin Ann Burkhart v. Officer R. Dickel, (4696); Officer M. Vlach, (5346)

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1165
ROBIN ANN BURKHART,
Plaintiff - Appellant,
v.
OFFICER R. DICKEL, (#4696); OFFICER M. VLACH, (#5346),
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge. (1:12-cv-03320-CCB)
Submitted: January 30, 2018 Decided: May 2, 2018
Before GREGORY, Chief Judge, and WYNN and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anton L. Iamele, IAMELE & IAMELE, LLP, Baltimore, Maryland, for Appellant.
Michael E. Field, County Attorney, James S. Ruckle, Jr., Jordan V. Watts, Jr., Assistant
County Attorneys, BALTIMORE COUNTY OFFICE OF LAW, Towson, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robin Ann Burkhart filed a complaint against the Appellees, Ryan Dickel and
Michael Vlach, police officers with the Baltimore County Police Department, alleging
that they used excessive force in arresting her, causing severe injuries to her left leg.
Following a trial, the jury found against Burkhart on all counts and the district court
denied Burkhart’s motion for a judgment as a matter of law or in the alternative a new
trial. Burkhart appeals, arguing that the district court abused its discretion in admitting
the challenged testimony of one of the Appellees’ experts regarding whether she had
osteoporosis at the time of the injury.
We review the district court’s application of Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993), for abuse of discretion. Nease v. Ford Motor Co., 848 F.3d
219, 228 (4th Cir.), cert. denied, 137 S. Ct. 2250 (2017). A district court abuses its
discretion if it makes an error of law in deciding an evidentiary question or if its
conclusion rests on a clearly erroneous factual finding. Id.
Prior to the trial, Burkhart sought to exclude some of the opinions one of the
Appellees’ experts, radiologist Dr. Barry Daly; specifically, Burkhart argued that Daly
should not be allowed to opine that she suffered from osteoporosis in her left leg on the
date of her arrest based on Daly’s review of scans of that leg performed three weeks after
her arrest, and that Daly should not be allowed to testify regarding the mechanism of her
injury. The district court sustained Burkhart’s objection to Daly offering an opinion on
the mechanism of her injury, but denied Burkhart’s motion with respect to Daly’s other
opinion; at trial, Daly testified that osteoporosis was evident in the scan of Burkhart’s leg

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taken after she sustained her injury and that the condition would have been present on the
date of Burkhart’s arrest. On appeal, Burkhart argues that the district court failed to
perform its gatekeeping function in allowing this testimony at trial and that Daly, in
contravention of the district court’s order, testified regarding the mechanism of her
injury. We disagree.
In Daubert, the Supreme Court explained that Fed. R. Evid. 702 governs the
standard for evaluating the admissibility of expert testimony. Id. at 228-29. A district
court must exercise a gatekeeping responsibility in evaluating expert testimony, ensuring
that experts’ opinions both rest on reliable foundations and are relevant. Id. at 229. “To
be relevant under Daubert, the proposed expert testimony must have a valid scientific
connection to the pertinent inquiry as a precondition to admissibility.” Id. at 229 (internal
quotation marks omitted). “With respect to reliability, the district court must ensure that
the proffered expert opinion is based on scientific, technical, or other specialized
knowledge and not on belief or speculation, and inferences must be derived using
scientific or other valid methods.” Id. (internal quotation marks and emphasis omitted).
Here, Burkhart concedes that Daly could properly offer an opinion regarding her
osteoporotic condition on the date that the scan occurred, but was not qualified to opine
that such condition existed three weeks prior as she could have developed the condition
in that interim period as a result of the injuries to her knee. However, there was
competing expert testimony at trial regarding the length of time such a condition could
develop as a result of the type of injuries Burkhart sustained and her subsequent lack of
use of the leg. Daly explained that in his opinion, the severity of Burkhart’s condition

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could not have developed within the three weeks between her injury and the scan as,
based on his experience and expertise, the degree of bone deterioration evident in the
scan could not be explained by Burkhart’s disuse of the leg, medications she was taking,
and lack of blood flow to the leg. Daly also disagreed with the conclusion of other
experts that Burkhart suffered from assymetrical osteoporosis—where the bone
deterioration in her left leg was significantly more advanced than in Burkhart’s other
bones—based on his opinion that the degree of difference between the bone deterioration
was not substantial and that the difference, which appeared on scans taken months and
years after her injury, could be explained by her lack of use of the leg over that ensuing
period of time. Therefore, Daly explained his methodology in determining that Burkhart
suffered from osteoporosis on the date of her arrest, and his opinion rested on a sufficient
foundation.
Daly’s opinion was also relevant to a central issue in the case. The expert
testimony at trial demonstrated that the type of injuries Burkhart suffered typically result
from high impact events such as car accidents, which did not occur here. Daly concluded
that Burkhart’s osteoporosis could have accounted for the severity of her injuries because
bone mineral density is one of the factors affecting the point at which a bone will fail, and
break or fracture. Although the density of the bone is not the only pertinent factor in
making this determination, it is certainly relevant to the question of the amount of force
necessary to cause the bone to fail. Thus, the district court did not abuse its discretion in
admitting this testimony.

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Furthermore, Daly did not testify regarding the mechanism of Burkhart’s injuries
in contravention of the district court’s pretrial ruling. Daly merely stated that none of the
accounts of the witnesses to the incident, including that of Burkhart and the Appellees,
explained the severity of Burkhart’s injuries. This was not tantamount to an explanation
of what kind of movement or degree of force would have been necessary to cause the
injuries. Moreover, while some experts opined that Burkhart’s account of her arrest and
the Appellees’ actions could properly account for the type of injuries she suffered, other
experts testified similar to Daly that none of the witness testimonies explained the
injuries.
Finally, in his testimony, Daly discussed the various risk factors for developing
osteoporosis, and highlighted those present in Burkhart’s case. Burkhart challenges this
testimony as unsupported as Daly had not reviewed all of Burkhart’s medical records
prior to concluding which risk factors applied to Burkhart. However, the factors
identified by Daly as applying to Burkhart were readily available from the records of
Burkhart’s treating physicians, which were based on their observations and Burkhart’s
own statements. Therefore, this aspect of Daly’s testimony was not unsupported in the
record.
We therefore affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid in the decisional process.
AFFIRMED

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