Dorothy Johnson v. Memphis Light Gas & Water Div.

695 F. App'x 131
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 27, 2017
Docket16-6143
StatusUnpublished
Cited by16 cases

This text of 695 F. App'x 131 (Dorothy Johnson v. Memphis Light Gas & Water Div.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorothy Johnson v. Memphis Light Gas & Water Div., 695 F. App'x 131 (6th Cir. 2017).

Opinions

SUHRHEINRICH, Circuit Judge.

In this wrongful death action against Defendant-Appellee Memphis Light Gas & Water Division (MLGW), Plaintiffs-Appellants Dorothy Mae Johnson and Lois Towns—respectively wife and sister of the decedent, J. Dean Johnson—appeal the district court’s order excluding their expert witness, Miguel A, Laboy, M.D., and its resultant order granting Defendant’s motion for summary judgment. For the reasons stated below, we REVERSE and REMAND for further proceedings consistent with this opinion.

I.

A.

This Court provided a detailed account of the facts of this case in a prior appeal. See Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 840-42 (6th Cir. 2015). Briefly, in 2010, Mr. Johnson was denied public utility services by Defendant for his new apartment because Defendant insisted that he produce a state-issued photo identification, which he could not obtain. Id. Consequently, he lived without utilities for eighteen months, and on August 4, 2011, Mr, Johnson died in his apartment, allegedly of heat stroke. Id. at 840. Investigators determined that the internal temperature of the apartment was 93.2 degrees Fahrenheit, with 63 percent humidity. R. 111-4, PageID 1661.

An autopsy report was prepared Dr. Miguel Laboy, M.D. Id. at PageID 1657. Dr. Laboy is an assistant medical examiner for the West Tennessee Regional Fo[133]*133rensic Center.1 R. 130-2, PageID 1969. In this capacity, he is charged with determining the cause and manner of death for sudden, unexpected, or violent deaths in Shelby County, Tennessee, and the surrounding counties. Id.) R. 112-1, PageID 1703, 1705; Tenn. Code. Ann. 38-7-109. Accordingly, Tennessee courts must receive his autopsy reports as competent evidence. Tenn. Code. Ann. 38-7-110(a). He is licensed to practice medicine in Missouri, Tennessee, and Mississippi. R. 130-2, PageID 1970. He is certified by the American Board of Pathology2 in Anatomic Pathology 3 and Forensic Pathology4. Id. Dr. La-boy performs four to seven autopsies per working day, and works two to three days per week. Id. at PageID 1706-07.

On August 5, 2011, Dr. Laboy performed the autopsy on Mr. Johnson’s body. R. 111-4, PageID 1657. That same day, Dr. Laboy prepared the preliminary autopsy report and pending death certificate. R. 112-1, PageID 1742-43. In conducting the autopsy, Dr. Laboy first performed an exterior examination of Mr. Johnson’s body, which revealed no evidence of trauma. R. 111-4, PageID 1658.

Dr. Laboy then conducted an internal examination. Dr. Laboy found that Mr. Johnson’s head was medically normal, and was free from injury. Id. at PagelD 1659. Aside from some decomposition, Mr. Johnson’s neck was healthy, and Dr. La-boy found no obstructions or trauma. Id. Similarly, Mr. Johnson’s chest and abdomen, gastrointestinal tract, liver and gallbladder, spleen, pancreas, adrenal glands, urinary tract, reproductive system, and musculoskeletal system all revealed no abnormalities and no trauma. Id. at PagelD 1659-61. However, Dr. Laboy did find that Mr. Johnson’s lungs were congested. Id. at 1659. In examining the heart, Dr. La-boy found signs of mild coronary artery disease, and noted that both its weight and the thickness of its walls were within the normal limits. Id.

After conducting this exterior and interi- or examination of Mr. Johnson, and running a preliminary toxicology panel (which turned up negative), Dr. Laboy provisionally concluded, “In my opinion, this death resulted from probable heat stroke. The manner of death is accident.” Id. PageID 1661; see also R. 112-1, PageID 1742-43.

On August 9, 2011, Dr. Laboy received from Dr. Geater, Mr. Johnson’s primary care physician, the medical records that she had on file for Mr. Johnson, R, 112-1, PageID 1782-83. On August 15, 2011, Dr. Laboy received the final toxicology report, which was negative. R. 72-3, PageID 1135-37. Lastly, on August 19, 2011, Dr. Laboy received the lab’s report showing vitreous electrolyte levels consistent with profuse [134]*134sweating from extreme heat. Id. at 1132-34; R. 112-1, PageID 1761. The same day, after reviewing all of these records, Dr. Laboy signed the delayed and final death certificate, and reaffirmed his preliminary diagnosis of “probable heat stroke” as the cause of death. Id. at PageID 1743, 1760-61,1782-83.

B.

Plaintiffs sued MLGW in the Circuit Court of Shelby County, Tennessee, claiming violations pursuant to 42 U.S.C. § 1983, the Government Tort Liability Act, Tenn. Code. Ann. § 29-20-205 et seq., and Tennessee’s wrongful death statute, Tenn. Code Ann. § 20-5-106 et seq. MLGW removed the case to federal district court on the basis of federal question and supplemental jurisdiction, and moved for summary judgment on statute of limitations grounds. Johnson, 777 F.3d at 842. The district court granted Defendant’s motion. Id. However, we reversed and remanded for further proceedings on the merits. Id. at 840.

Meanwhile, during discovery, Plaintiffs disclosed Dr. Laboy as their sole expert witness. R. 111-1, PageID 1632-33. The disclosure stated that Dr. Laboy would

testify along the lines of his report that J. Dean Johnson’s cause of death resulted from probable heat stroke due to the fact that he was inside his secured apartment, which did not have any utilities and the temperature in the bedroom was 93.2 degrees, with 63% humidity, and that the manner of his death is accident. He will also testify that Plaintiff J. Dean Johnson had no significant past medical history.

Id. Dr. Laboy was deposed on January 29, 2014, and testified that it was his professional opinion—as a medical examiner and pathologist—that the cause of death was probable heat stroke. R. 112-1, PagelD 1809.

Following remand from this Court, MLGW moved to exclude Dr. Laboy’s testimony pursuant to Fed. R. Evid. 702. R. 111. Specifically, Defendant contended that Dr. Laboy’s testimony should be excluded because: (1) it was not expressed to the requisite degree of medical certainty; (2) it would not assist the jury in understanding the evidence or in determining a fact in issue; and (3) it was unreliable because Dr. Laboy’s methodology was flawed, in that it did not consider alternative causes of death. R. 119, PageID 1829. Plaintiffs failed to respond, and the district court granted Defendant’s motion. R. 119, PageID 1828.

The district court agreed with Defendant. First, it held that Dr. Laboy’s opinion that Mr. Johnson’s death resulted from “probable heat stroke” did not meet the standard for admissibility of medical causation testimony, which requires a plaintiff to show a cause is “more likely than not” and not just a “possibility.” Id. at PagelD 1829-30. Second, because Dr.

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Bluebook (online)
695 F. App'x 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorothy-johnson-v-memphis-light-gas-water-div-ca6-2017.