1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

ROBERT SILER, #374576, 

 Plaintiff, 

v. 

W. BALDWIN, et al., 

 Defendants. 

No. 2:08-cv-15077 

Honorable Patrick J. Duggan 

Magistrate Judge Mona K. Majzoub 

Tricia L. Roelofs (P72383) 

Heidi A. Naasko (PP58783) 

David J. Council (P73163) 

Robert Franzinger (P25539) 

Joseph A. Doerr (P66109) 

Attorneys for Plaintiff 

Dykema Gossett PLLC 

400 Renaissance Center 

Detroit, MI 48243 

(313) 568-6530 

troelofs@dykema.com 

hnaasko@dykema.com 

dcouncil@dykema.com

rfranzinger@dykema.com

jdoerr@dykema.com

Clifton B. Schneider (P70582) 

Assistant Attorney General 

Attorney for Defendants 

Corrections Division 

P.O. Box 30217 

Lansing, MI 48909 

(517) 335-7021 

SchneiderC1@michigan.gov 

DEFENDANT BALDWIN’S MOTION TO DISQUALIFY PLAINTIFF’S 

PURPORTED EXPERT WITNESS, BRYAN JUDGE, M.D., OR TO 

CONDUCT A DAUBERT HEARING TO DETERMINE THE 

ADMISSIBILITY OF HIS TESTIMONY UNDER FED. R. EVID. 702 

Defendant Baldwin, by counsel, hereby moves to have the Court preclude the 

plaintiff’s purported expert, Bryan Judge, from testifying at trial in this matter or, 

in the alternative, to conduct a Daubert hearing to determine the admissibility of 

the testimony under Federal Rules of Evidence 702. This motion is based on Rule 

702, Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny, and the other 

Case 2:08-cv-15077-PJD-MKM ECF No. 160 filed 08/10/12 PageID.1087 Page 1 of 13
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reasons set forth in the accompanying brief. Concurrence in this motion was sought 

from the plaintiff’s counsel, but concurrence was denied. 

Respectfully submitted, 

Bill Schuette 

Attorney General 

Clifton Schneider 

Assistant Attorney General 

Attorney for Defendants 

Corrections Division 

P.O. Box 30217 

(517) 335-7021 

SchneiderC1@michigan.gov 

Dated: August 10, 2012 P70582 

Case 2:08-cv-15077-PJD-MKM ECF No. 160 filed 08/10/12 PageID.1088 Page 2 of 13
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

ROBERT SILER, #374576, 

 Plaintiff, 

v. 

W. BALDWIN, et al., 

 Defendants. 

No. 2:08-cv-15077 

Honorable Patrick J. Duggan 

Magistrate Judge Mona K. Majzoub 

Tricia L. Roelofs (P72383) 

Heidi A. Naasko (PP58783) 

David J. Council (P73163) 

Robert Franzinger (P25539) 

Joseph A. Doerr (P66109) 

Attorneys for Plaintiff 

Dykema Gossett PLLC 

400 Renaissance Center 

Detroit, MI 48243 

(313) 568-6530 

troelofs@dykema.com 

hnaasko@dykema.com 

dcouncil@dykema.com

rfranzinger@dykema.com

jdoerr@dykema.com

Clifton B. Schneider (P70582) 

Assistant Attorney General 

Attorney for Defendants 

Corrections Division 

P.O. Box 30217 

Lansing, MI 48909 

(517) 335-7021 

SchneiderC1@michigan.gov 

DEFENDANT BALDWIN’S BRIEF IN SUPPORT OF MOTION TO 

DISQUALIFY PLAINTIFF’S PURPORTED EXPERT WITNESS, BRYAN 

JUDGE, M.D., OR TO CONDUCT A DAUBERT HEARING TO DETERMINE 

THE ADMISSIBILITY OF HIS TESTIMONY UNDER FED. R. EVID. 702 

Bill Schuette 

Attorney General 

Clifton Schneider 

Assistant Attorney General 

Attorney for Defendants 

Corrections Division 

P.O. Box 30217 

(517) 335-7021 

SchneiderC1@michigan.gov 

Dated: August 10, 2012 P70582 

Case 2:08-cv-15077-PJD-MKM ECF No. 160 filed 08/10/12 PageID.1089 Page 3 of 13
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CONCISE STATEMENT OF ISSUES PRESENTED 

1. Federal caselaw requires that expert opinions be reliable. With regard 

to the claim remaining in this case, Dr. Judge concludes that an 

alleged fall from a bunk “could have” or “may have” worsened a preexisting condition of the plaintiff’s. Should Dr. Judge’s opinions be 

excluded as unreliable because they are not made with any degree of 

medical certainty? 

2. Relevance is required for an expert opinion to be admissible. 

Relevance is defined by helpfulness to the jury. Here, Dr. Judge 

concludes that if the plaintiff fell from his bunk, hit his head, and lost 

consciousness, he should have been evaluated by medical staff. He 

also concludes that the plaintiff “may have” been injured in the alleged 

fall. Should Dr. Judge’s opinion be excluded as not relevant because it 

does not go beyond the ken of common knowledge and common sense? 

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STATEMENT OF FACTS 

This is a prisoner civil-rights action. The sole remaining claim is that 

Defendant Baldwin was allegedly deliberately indifferent to the plaintiff’s medical 

needs on July 28, 2008, when the plaintiff allegedly fell from his bunk and hit his 

head. Regarding this claim, the Court has held as follows, “If Baldwin knew that 

Plaintiff was suffering from a serious medical need and that he was waiting near 

her office for a response from health services but nonetheless informed health 

services that he was off on the basketball courts to interfere with what would 

otherwise have been an immediate response by health services, those facts would 

indicate deliberate indifference.” [D/E #90, page 7]. 

The plaintiff has submitted an expert report completed by Bryan Judge, M.D. 

[Attached as Exhibit A]. Notably, Dr. Judge’s resume indicates that he has no 

experience in any prison or jail setting. [Curriculum Vitae, attached as Exhibit B]. 

Dr. Judge’s report concludes that the plaintiff suffered a cervical radiculopathy in 

October 2007. [Exhibit A, page 2]. Dr. Judge criticizes the care provided for that 

condition and indicates that an MRI was performed 16 months after the injury 

occurred rather than after 4-6 weeks, which he states is the standard of care in a 

community setting (Dr. Judge does not and is not qualified to testify regarding the 

standard of care in a prison setting). [Exhibit A, page 3]. He also criticizes the pain 

medications prescribed as insufficient. [Exhibit A, page 3]. 

With regard to the actual claim in this case, Dr. Judge assumes that the 

plaintiff fell from his bunk, struck his head and neck, and lost consciousness. 

[Exhibit A, page 3, ¶ 10]. Dr. Judge “takes issue” with the alleged denial of a 

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medical evaluation after the alleged fall from the bunk. [Exhibit A, page 4]. Dr. 

Judge opines that the fall “could have certainly worsened [the plaintiff’s] 

radiculopathy and resulted in a serious closed head injury that is not always 

apparent to a person without medical training.” [Exhibit A, page 4]. He opines that 

a “prompt medical evaluation should have been performed.” [Exhibit A, page 4]. 

Finally, Dr. Judge concludes, “this fall may have worsened his radiculopathy and a 

prompt medical evaluation should have been performed to rule out a serious neck or 

back injury.” [Exhibit A, page 4]. 

ARGUMENT 

In this case, expert reports were due on April 18, 2012. [D/E #156]. 

Pursuant to Federal Rules of Civil Procedure 26(a)(2)(B)(i), Dr. Judge’s report was 

required to include a complete statement of all opinions he would express and the 

basis and reasons for them. He was also required to disclose the facts and data 

considered in forming his opinions. Fed. R. Civ. P. 26(a)(2)(B)(ii). Based on Dr. 

Judge’s expert report, Dr. Judge’s opinions are neither reliable nor relevant. 

In Daubert v. Merrell Dow Pharmaceuticals, Inc. and Kumho Tire Co., Ltd. v. 

Carmichael, the United States Supreme Court firmly established the district court’s 

role as gatekeeper of expert testimony. Daubert, 509 U.S. 579, 589 (1993); Kumho 

Tire, 526 U.S. 137, 141 (1999). The Rules of Evidence, according to the Court, 

“assign the trial judge the task of insuring that an expert’s testimony both rests on 

a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. 

Case 2:08-cv-15077-PJD-MKM ECF No. 160 filed 08/10/12 PageID.1092 Page 6 of 13
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Federal Rule of Evidence 702 codifies this standard, setting out several hurdles for 

a party seeking to admit expert testimony: 

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or 

otherwise if: 

(a) 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; 

(b) the testimony is based on sufficient facts or data; 

(c) the testimony is the product of reliable principles and methods; and 

(d) the expert has reliably applied the principles and methods to the 

facts of the case. 

Fed. R. Evid. 702. Under this rule, the expert’s proffered testimony must “help the 

trier of fact to understand the evidence or to determine a fact in issue.” Id. In 

addition, the testimony must be triply reliable: it must be based on (1) reliable 

principles and methods that are (2) reliably applied to (3) reliable facts and data. 

Id.

The district court has broad discretion in admitting or rejecting expert 

testimony. Morales v. American Honda Motor Co., 151 F.3d 500, 514 (6th Cir. 

1998). Its decisions, however, “must be made upon the evidence of the witness’s 

qualifications, or lack thereof, and not upon the trial court’s personal views.” 

Kingsley Associates, Inc. v. Del-Met, Inc., 918 F.2d 1277, 1286 (6th Cir. 1990) 

(citations omitted). The party offering expert testimony bears the burden of 

establishing its admissibility by a preponderance of the evidence. Nelson v. Tenn. 

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Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001) (citing Daubert, 509 U.S. at 592, 

n. 10). 

In order to satisfy that burden, the proffered expert testimony must meet the 

demands of Federal Rules of Evidence 702. Daubert, 509 U.S. 579. An “expert’s 

bald assurance of validity is not enough.” Smelser v. Norfolk Southern Railway Co., 

105 F.3d 299, 303 (6th Cir. 1997). Nevertheless, Rule 702’s requirements are 

applied liberally, leaving “[v]igorous cross-examination, presentation of contrary 

evidence, and careful instruction on the burden of proof [as] the traditional and 

appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. 

at 596; see also Pride v. Bic Corp., 218 F.3d 566, 577 (6th Cir. 2000). 

Expert testimony may only be admitted into evidence if (1) the methodology 

by which the expert reaches his or her conclusions is sufficiently reliable 

(“Reliability Test”); (2) the expert’s testimony will assist the trier of fact to 

understand the evidence or determine a fact in issue (“Relevancy Test”); and (3) the 

witness qualifies as an expert (“Qualifications Test”). Daubert, 509 U.S. at 589-91. 

The first inquiry is whether the testimony of the proposed expert is reliable 

and trustworthy. In re Northwest Airlines Corp., 197 F. Supp. 2d 908, 913 (E.D. 

Mich. Mar. 29, 2002) (Rosen, J.). “Rule 702 restates Daubert’s insistence on the 

requirements that an expert’s opinion be based on a foundation grounded in the 

actual facts of the case, that the opinion is valid according to the discipline that 

furnished the base of special knowledge, and that the expert appropriately ‘fits’ the 

facts of the case into the theories and methods he or she espouses.” Bd. Of Trs., 

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Sheet Metal Workers’ Nat’l Pension Fund v. Palladium Equity Partners, LLC, 722 F. 

Supp. 2d 845, 852 (E.D. Mich. 2010) (Lawson, J.) (citing Daubert, 509 U.S. at 591-

93). This inquiry has both quantitative and qualitative components. In re 

Northwest Airlines Corp., 197 F. Supp. 2d at 913. 

Quantitatively, the plaintiff must demonstrate that the expert testimony is 

“based upon sufficient facts or data.” Id. at 914. The Sixth Circuit has explained 

this test as follows: 

An expert’s opinions must be supported by ‘more than subjective belief 

and unsupported speculation’ and should be supported by ‘good 

grounds,’ based on what is known. The expert’s conclusions regarding 

causation must have a basis in established fact and cannot be 

premised on mere suppositions. An expert’s opinions, where based on 

assumed facts, must find some support for those assumptions in the 

record. 

McLean v. 988011, Ltd., 224 F.3d 797, 800-01 (6th Cir. 2000) (citations omitted). 

Qualitatively, the plaintiff must demonstrate that the expert’s opinions “rest 

upon a foundation of reliable principles and methods.” In re Northwest Airlines 

Corp., 197 F. Supp. 2d at 913. The factors that the Court may look to in making 

this assessment include “the testability of the expert’s hypotheses (whether they 

can be or have been tested), whether the expert’s methodology has been subjected to 

peer review, the rate of error associated with the methodology, and whether the 

methodology is generally accepted in the [relevant] community.” Berry v. Crown 

Equipment Corp., 108 F. Supp. 2d 743, 749 (E.D. Mich. Aug. 16, 2000) (Rosen, J.). 

In addition to examining the reliability of expert testimony, Daubert also 

requires courts to consider the relevancy of such evidence. Cook v. American S.S. 

Co., 53 F.3d 733, 737-38 (6th Cir. 1995). The relevancy inquiry seeks to determine 

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whether the proposed expert testimony will assist the trier of fact. In re Northwest 

Airlines, 197 F. Supp. 2d at 914 (quoting Pride v. BIC Corp., 218 F.3d 566, 578 (6th 

Cir. 2000)). “Such testimony is unhelpful when it is unreliable or irrelevant, as the 

Court observed in Daubert . . . and also when it merely deals with a proposition that 

is not beyond the ken of common knowledge.” Zuzula v. ABB Power T&D Co., 267 

F. Supp. 2d 703, 711 (E.D. Mich. June 3, 2003) (Lawson, J.). Expert opinions must 

“account for” and cannot simply “ignore[] inconvenient evidence.” In re Northwest 

Airlines Corp., 197 F. Supp. 2d at 914 (quoting Concord Boat Corp. v. Brunswick 

Corp., 207 F.3d 1039, 1056-57 (8th Cir. 2000)). It is well established that an expert 

witness’s testimony is not helpful “where the jury has no need for an opinion 

because it easily can be derived from common sense, common experience, the jury’s 

own perceptions, or simple logic.” Charles Alan Wright et al., 29 Federal Practice & 

Procedure Evidence § 6264. 

I. Dr. Judge’s opinion is not reliable because his opinions are not 

stated with any degree of medical certainty whatsoever. 

Dr. Judge’s opinions lack any degree of reasonable probability. Dr. Judge 

opines that the alleged fall from the bunk “could have” or “may have” worsened the 

plaintiff’s pre-existing condition. Dr. Judge uses terms such as “could” and “may” 

because he cannot say with any degree of authority whether the plaintiff’s condition 

was in fact worsened. Dr. Judge also notes that the plaintiff allegedly fell from his 

bunk on July 28, and radiographs of his neck and left shoulder were performed on 

August 1, four days later. [Exhibit A, page 3, ¶ 10]. Dr. Judge does not even opine 

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on whether this 4-day delay in treatment actually caused any injury to the plaintiff. 

Dr. Judge’s speculative opinions are the very type of opinions that Rule 702 was 

meant to exclude. 

II. Dr. Judge’s opinion is not relevant because it will not be helpful to 

the jury in deciding any material fact at issue in this case. 

Dr. Judge does not employ any scientific principles or methodology to the 

facts in this case in forming his opinions. Rather, he merely accepts the plaintiff’s 

version of events from the second amended complaint and makes plain observations 

that are not beyond the ken of common knowledge. The jury is free and able to 

make the same observations that Dr. Judge makes. 

Dr. Judge opines that an inmate who falls from a bunk, strikes his head and 

neck, and loses consciousness should be evaluated by medical staff. Such conclusion 

is not beyond the ken of common knowledge – it can easily be derived from “common 

sense, common experience, the jury’s own perceptions, or simple logic.” This is even 

more evident by the fact that Dr. Judge is testifying as to what nursing staff or 

prison guards should have done – Dr. Judge is not a nurse, has no corrections 

experience, and is not qualified to testify as to the nursing standard of care, in or 

out of the prison setting. 

The same is true of the statement that the plaintiff’s pre-existing medical 

condition “could have” or “may have” worsened as a result of the fall. Nowhere does 

Dr. Judge opine that the plaintiff’s condition did in fact get worse. Nowhere does 

Dr. Judge opine that any delay caused by Baldwin caused any injury to the plaintiff. 

Case 2:08-cv-15077-PJD-MKM ECF No. 160 filed 08/10/12 PageID.1097 Page 11 of 13
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Although the facts surrounding the alleged fall from the bunk are hotly 

contested, if the jury concludes that the plaintiff did in fact fall, hit his head, and 

lose consciousness, they can reach the same conclusions as Dr. Judge: a person 

might get hurt falling, and they should be seen by healthcare. They would then 

have to decide whether Baldwin knew of the injury and prevented healthcare from 

evaluating the plaintiff. Dr. Judge’s opinions are not relevant because they are not 

helpful. 

Dr. Judge’s opinions related to the care provided to the plaintiff relating to 

his October 2007 injury are also not relevant and not helpful. There is no claim in 

this case related to that care, and no person associated with that care is a party to 

this case. 

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CONCLUSION AND RELIEF REQUESTED 

Defendant Baldwin respectfully requests that the Court grant her motion 

and exclude the testimony of Dr. Judge. Alternatively, the defendant requests that 

the Court hold a Daubert hearing, where the defendant would have the opportunity 

to voir dire Dr. Judge, and the Court could determine the admissibility of his 

opinions. 

Respectfully submitted, 

Bill Schuette 

Attorney General 

Clifton Schneider 

Assistant Attorney General 

Attorney for Defendants 

Corrections Division 

P.O. Box 30217 

(517) 335-7021 

SchneiderC1@michigan.gov 

Dated: August 10, 2012 P70582 

CBSCases/2009-0010891-A/Mot & Brf to Disqualify Expert 8-10-12 

CERTIFICATE OF SERVICE: I certify that on August 10, 2012, I electronically filed the foregoing 

document with the Clerk of the Court using the ECF system, which will provide electronic copies to 

counsel of record.

/s/ Clifton Schneider (P70582) 

Assistant Attorney General 

PO Box 30217 

Lansing, MI 48909 

(517) 335-7021 

schneiderc1@michigan.gov 

P70582 

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