Lakey et al v. Taylor et al

1
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CYNTHIA LAKEY and DOUGLAS
LAKEY, as co-Special Administrators for the
Estate of Jared Lakey,
Plaintiffs,
v.
1. 	CITY OF WILSON,
2. 	JOSHUA TAYLOR, in his official and
individual capacities,
3. 	BRANDON DINGMAN, in his individual
capacity,
4. 	CHRIS BRYANT, in his official and
individual capacities as Sheriff of Carter
County,
5. 	DAVID DUGGAN, in his individual
capacity,
6. 	LONE GROVE,
7. 	TERRY MILLER, in his individual
capacity, and
8. 	KEVIN COOLEY, in his official and
individual capacities,
Defendants.
Case No. CIV-20-152-RAW
ORDER
Before the Court is Docket No. 354 Plaintiff’s Motion to Limit or Exclude the Opinions of
Dr. Robert Bux.1
1 The Motion was inadvertently filed with the title “Plaintiff’s Motion for Spoliation Sanctions Against Chris Bryant
in his Individual and Official Capacities”.
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Dr. Bux is a board certified forensic pathologist with decades of experience in clinical
pathology and emergency medicine as well as significant research and consulting experience in
the field. [Docket No. 254-1 pp. 8-19]. Defendants Lone Grove and Miller hired Dr. Bux to provide
an expert opinion on Jared Lakey’s cause of death.
Pursuant to Rule 702 and Daubert expert testimony must be reliable, relevant, and helpful
to the trier of fact to be admissible. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
593-94 (1993); Fed. R. Evid. 702. The gatekeeping function of the court set forth in Daubert
applies not only to scientific knowledge, but also to “technical” or “other specialized knowledge.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149, 119 S. Ct. 1167, 1175, 143 L. Ed. 2d 238
(1999). When an expert relies primarily on his experience to satisfy the reliability prong, the
witness “must explain how that experience leads to the conclusion reached, why that experience
is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Fed.
R. Evid. 702 advisory committee’s notes. Courts should exclude an expert’s testimony if they
conclude “that there is simply too great an analytical gap between the data and the opinion
proffered” by the expert. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 140 (1997).
The Plaintiff objects to Dr. Bux’s opinions regarding Jared Lakey’s chronic alcohol use,
heavy alcohol use prior to the incident, use of illegal stimulants, breathing, and his opinions on the
officer’s CPR. [Docket No. 354]. Plaintiff does not challenge Dr. Bux’s qualifications as a medical
expert. Instead, Plaintiff argues that Dr. Bux’s opinions are unreliable because he uncritically relies
on biased information and does not take the unreliability of this information into account when
explaining his methodology. [Docket No. 354 at p. 15].
Plaintiff objects to Opinion 2 and Opinion 5 wherein Dr. Bux explains that Jared Lakey’s
behavior could be due to PCP use and that had an enlarged heart that was caused, in part, by
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chronic alcohol use, hypertension, and obesity. Dr. Bux’s opinion is based on his medical
knowledge and Mr. Lakey’s medical history and witness testimony. [Docket No. 254-1 pp. 2-7].
Plaintiff also objects Dr. Bux’s last two opinions that Jared was breathing during the recorded
video and that CPR was reasonable and timely. Id. at p. 7. Plaintiff argues that each opinion is
flawed because Dr. Bux references only unreliable information that supports the Defendant’s
version of events and that he “failed to seriously evaluate the video and never reviewed any
deposition testimony”. [Docket No. 354 at p. 20].
Plaintiff’s assertion that Dr. Bux failed to review deposition testimony is incorrect. Dr. Bux
states that he reviewed the depositions of David Duggan, Kody Helms, and Terry Miller as well
as the body cam footage, the OSBI investigation report, transcripts from Dingman and Taylor’s
criminal trial, and Mr. Lakey’s medical records. [Docket No. 254-1 at p. 1]. Furthermore, the
Plaintiff’s arguments against each of Dr. Bux’s opinions is essentially that this expert’s
methodology is flawed because his medical opinions are based on unreliable factual assumptions.
We disagree. While an expert must base his opinion on “reasonably accurate facts as opposed to
conjecture or speculation … absolute certainty is not required” and the weaknesses of various
assumptions in the expert testimony should go to the weight of the opinion and not the
admissibility. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir. 1995) citing Jones
v. Otis Elevator Co., 861 F.2d 655, 662 (11th Cir.1988). To the extent that the Plaintiff objects to
the factual underpinnings of Dr. Bux’s opinions, that critique goes to the weight of the opinion,
and not admissibility. It is therefore an issue better explored through cross examination.
Additionally with respect to Opinion 8, we disagree with Plaintiff’s argument that Dr.
Bux’s opinion is beyond the scope of his expertise as a pathologist. In Opinion 8, Dr. Bux states
that “there is no indication that Officer Miller Applied significant force to his shoulder or his neck
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that would have resulted in significant respiratory impairment and lead to positional asphyxia”.
[Docket No. 254-1 p.7]. Importantly, Dr. Bux does not opine on the propriety of the amount of
force used. Instead, he confines his opinion to whether the records he reviewed had any medical
indications that Officer Miller applied significant pressure on Mr. Lakey’s back. Because he does
not impermissibly attempt to opine on police practices, we find that his opinion should not be
excluded.
Plaintiff’s Motion to Limit or Exclude the Opinions of Dr. Robert Bux Docket No. 354 is
hereby DENIED.
IT IS SO ORDERED this 21 st day of February, 2024.
___________________________________
RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
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