Rarey v. Federal Bureau of Prisons

Opinion

1 WO 2 3 4 5

9 Rickie Lynn Rarey, No. CV-22-00313-TUC-SHR

10 Plaintiff, Order Granting Motion to Preclude

11 v.

12 Federal Bureau of Prisons,

13 Defendant. 14 15 16 Pending before the Court is “Defendant’s Motion to Preclude Expert 17 Opinions/Testimony of Paul Volkman” (Doc. 98). The Court has reviewed the Motion, 18 Plaintiff’s Response (Doc. 99), and Defendant’s Reply (Doc. 100). For the following 19 reasons, the Court will grant the Motion. 20 I. Legal Standard 21 Rule 702 and Daubert v. Merril Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) 22 govern the admissibility of expert witness testimony. Generally, a witness who is qualified 23 as an expert may testify to his or her opinions if the proponent demonstrates to the Court 24 that it is more likely than not that: 25 (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) 26 the testimony is based on sufficient facts or data; (3) the testimony is the 27 product of reliable principles and methods; and (4) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the 28 case. 1 Fed. R. Evid. 702. A trial court functions as a “gatekeeper,” excluding expert opinions if 2 they do not meet the requirements of relevance and reliability under Rule 702. See 3 Daubert, 509 U.S. at 589. A court accomplishes this by preliminarily determining an 4 expert is qualified to testify and the expert’s testimony will be both relevant and reliable. 5 Id. at 585–95. 6 II. Analysis 7 Defendant asserts Dr. Paul Volkman is not qualified to testify as a medical expert 8 in this case primarily because he has not practiced medicine for many years.1 (Doc. 98 at 9 1–2.) While Dr. Volkman used to be a board-certified physician, he has since lost his 10 medical license in 2008, has not testified as an expert since 2000, and is currently 11 incarcerated. (Id. at 2; see also Doc. 98-1 at 6–7.) Dr. Volkman never treated Plaintiff, 12 nor did he prepare an expert report. (Doc. 98 at 2.) In response to Defendant’s assertions, 13 Plaintiff states “Defendant raises the valid legal point that, since Dr. Volkman has not 14 practiced medicine in Arizona for over a year, he can be excluded from proffering expert 15 medical testimony.” (Doc. 99 at 1.) Yet, because Dr. Volkman has a medical degree and 16 a PhD and “over 30 years of basic research and medical practice,” Plaintiff still asserts he 17 is qualified to testify. (Id. at 1–2.) 18 The Court finds Dr. Volkman is not qualified to testify as an expert. There are many 19 reasons, any of which would be enough on its own, to exclude Dr. Volkman’s testimony. 20 First, he has not practiced medicine for nearly two decades. (Doc. 98-1 at 13.) Second, he 21 has not otherwise stayed up to date on the current medical best practices which are 22 constantly evolving. Third, Dr. Volkman completed a residency in pediatrics and 23 completed a fellowship in clinical pharmacology. (Doc. 98-1 at 9–10; Doc. 94-1 at 1–2.) 24 Even assuming Dr. Volkman were somehow up to date on medical best practices such that 25 he could provide reliable medical testimony, he does not have any training in the specialty 26 1For the purposes of this analysis, the Court will disregard Defendant’s arguments 27 under A.R.S. § 12-2604 because that statute’s heightened requirements do not apply when the defendant is an institution. See Windhurst v. Ariz. Dep’t of Corr., 536 P.3d 764, 770 28 (Ariz. 2023). at issue, namely endocrinology. Nor does he have specialized experience or training in || prison medicine or any of the relevant standards for an institution such as the Bureau of Prisons. Therefore, his opinions on Plaintiff's claims would not be reliable or relevant. 4|| Furthermore, even assuming the Court were inclined to find Dr. Volkman qualified and || able to provide relevant testimony, the Court would still exclude Dr. Volkman under || Federal Rule of Civil Procedure 37(c)(1) because Plaintiff has not disclosed an expert 7\|| report pursuant to Rule 26(a)(2)(B). Accordingly, Plaintiff has not met his burden to show 8 || that Dr. Volkman is qualified as an expert and can provide reliable and relevant testimony || to support any of his claims. 10} II. Conclusion 11 IT IS ORDERED the Motion (Doc. 98) is GRANTED. Dr. Volkman cannot || testify as an expert in this case. 13 IT IS FURTHER ORDERED any Motion for Summary Judgment shall be filed 14]| no later than Friday, October 11, 2024. 15 Dated this 10th day of September, 2024. 16 17 /} Ait fed 19 Honorable Scott H. Rash ~_/ United States District Judge 20 21 22 23 24 25 26 27 28

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