635 F.Supp.3d 152
N.D.N.Y.2022Background
- Plaintiff Andrew Smith, an inmate at Rensselaer County Jail, sued Dr. Russell Fricke under 42 U.S.C. § 1983 for deliberate indifference to serious medical needs relating to prostate cancer diagnosis and treatment.
- Parties filed multiple motions in limine addressing expert testimony (Def. expert Dr. Richard Toll and treating-physician testimony by Fricke), missing-witness instruction for Drs. Almonte and Lieb, prior lawsuits, and requests to judicially notice NCI prostate-cancer facts.
- Dr. Toll (defense expert) reviewed extensive medical records and offered opinions on PSA, Gleason score, treatments, and prognosis; plaintiff sought to exclude Toll and to bar Fricke from offering expert opinions.
- Plaintiff subpoenaed treating physicians; efforts to secure depositions produced limited cooperation; Dr. Almonte was eventually subpoenaed and Dr. Lieb is no longer being called.
- The parties agreed (and the Court found) that Smith was a convicted prisoner as of June 3, 2014, so the Eighth Amendment governs his claims.
- The Court resolved the limine disputes: allowed Dr. Toll’s testimony except for a confusing statement that earlier diagnosis ‘‘would have made no difference’’ (excluded under Rule 403), allowed Fricke to testify as treating physician, denied admission of prior lawsuits against Fricke, took judicial notice of several NCI patient-version facts but declined to notice certain contested medical points, and reserved rulings on some issues for trial (e.g., mitigation charge, witness testimony relevance).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of defense expert Dr. Toll | Expert testimony not required; irrelevant to deliberate indifference | Relevant to medical issues (PSA, Gleason, meds); admissible under Rule 702/Daubert | Toll admissible to assist jurors on medical topics, but excluded a confusing causation/speculation statement under Rule 403 |
| Defendant testifying as an expert/treating physician | Defendant should be precluded from offering expert opinions (not disclosed as expert) | Fricke may explain reasons for his medical decisions; treating-physician testimony permitted | Fricke may testify about treatment decisions as a treating physician; disclosures were sufficient |
| Missing-witness instruction (Drs. Almonte, Lieb) | Jury should be instructed to draw adverse inference for nonproduction | Witnesses equally available; testimony would be cumulative | Request moot as Dr. Almonte subpoenaed and Dr. Lieb no longer called; missing-witness charge denied |
| Judicial notice of prostate-cancer facts (NCI materials) | Court should judicially notice various NCI patient-version facts on screening, staging, prognosis | Some NCI “Health Professional” statements create disputes; certain statements are contestable | Court took judicial notice of multiple patient-version facts (e.g., prostate cancer definition, staging) but declined to notice contested items (e.g., whether PSA alone diagnoses cancer); parties to meet on some points |
| Evidence predating March 2, 2014 (statute of limitations) | Court should not wholesale bar pre-2014 facts that are relevant | Pre-2014 deliberate-indifference claims time-barred and probative value may be outweighed by prejudice | Claims before March 2, 2014 are time-barred; pre-2014 evidence may be admissible if relevant but likely subject to Rule 403 exclusion; rulings reserved at trial as needed |
| Evidence of prior lawsuits against Fricke | Prior suits show pattern of deliberate indifference | Prior suits are irrelevant, prejudicial, and improper propensity evidence | Evidence of unrelated prior lawsuits against Fricke excluded under Rule 404(b) and Rule 403 |
Key Cases Cited
- Salahuddin v. Goord, 467 F.3d 263 (2d Cir.) (deliberate-indifference two-prong test)
- Wilson v. Seiter, 501 U.S. 294 (1991) (deliberate-indifference standard)
- Smith v. Carpenter, 316 F.3d 178 (2d Cir.) (medical consequences probative on substantial risk of harm)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (trial court gatekeeping for expert testimony under Rule 702)
- United States v. Mulder, 273 F.3d 91 (2d Cir.) (exclude expert testimony on lay matters)
- Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206 (2d Cir.) (expert testimony must not be speculative)
- United States v. Torres, 845 F.3d 1165 (2d Cir.) (missing-witness instruction and witness availability)
- Darnell v. Pineiro, 849 F.3d 17 (2d Cir.) (distinction between pretrial detainee and convicted prisoner standards)