Pathology Expert Allowed to Opine on the Cause of Blunt Force Trauma

Gary Brannon was arrested on November 8, 2022, for driving under the influence and, as a result, was brought to the Elmore County Jail. Officer Geoffrey Young directed Brannon through the booking process. During the process, Brannon sustained head injuries for which he was hospitalized. Brannon remained in the hospital until his death eight months later on July 8, 2023. The autopsy report listed the manner of death as "Homicide" and the cause of death as "Complications of Blunt Force Head Injury."

The Plaintiff, the Estate of Gary Brannon, initiated this action on October 25, 2024, asserting claims of excessive use of force and wrongful death against Defendant Young and against a fictitious Defendant.

The Defendant filed a motion to exclude the opinion of the Plaintiff's expert, Adel Y. Shaker. According to Shaker, "Brannon exhibited severe, complex, and extensive traumatic injuries with significant pathological findings. The severity, distribution, and multiplicity of the traumatic injuries are not adequately explained by a single strike followed only by a fall to the ground. The pattern of injuries is consistent with multiple episodes of blunt force trauma to the head. Such trauma may occur through repeated strikes with a closed fist, impacts by a blunt object, or other repeated blunt force impacts, depending upon the complete investigative and medical context."

Pathology Expert Witness

Adel Youssef Shaker has many years of experience as a practicing forensic and anatomic pathologist. Shaker's forensic pathology practice includes performing and reviewing autopsies to determine the cause and manner of death. Shaker has performed more than 3000 autopsies.

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Discussion by the Court

In this case, it appeared that the parties disagreed about whether Shaker is providing non-scientific, experience-based testimony or scientific testimony.

Ultimately, the Court found that Shaker's opinion is experience-based and is sufficiently reliable to be presented to a jury. Shaker pointed specifically to the fracture in the base of Brannon's skull to support his conclusion that the injuries were inconsistent with one strike to the face and a fall; he explained that the bone in the base of the skull is "sturdy" and, in his experience, an injury to that bone is more consistent with a fall from a two-story building or a head-on vehicle collision. When asked what scientific methodology he relied on, Shaker again explained that his experience dictated that the injuries were not likely to come from the force described by the Defendant; in particular, the geographic distribution of the injuries and the sturdiness of the injured bones (specifically the base of the skull and the zygomatic face bone) led Shaker to the conclusion that the injuries "cannot be explained by simple punch to the nose or to the head. So it has to be multiple times"; "[Brannon] ha[d] been exposed to multiple blunt force trauma, whether that closed fist or a baton, or whatsoever, blunt force injury." Regarding the geographic distribution of the injuries, Shaker explained that the placement of the injuries "on the right and left side, on the back of the head and the base of the skull, in the nose, and the zygomatic bone, the face bone," led him to conclude that Brannon had to have suffered more than one strike and a fall from his own height.

While the field of forensic pathology is obviously a science involving testable methodologies, Shaker clearly testified that his opinion in this case was based on his knowledge and experience; his methodology was to compare the injuries he observed with his knowledge of what events typically produce such injuries. The Supreme Court has made clear that expert testimony like this can be reliable. Thus, to the extent the Defendant's motion to exclude hinges on Shaker's failure to name a specific scientific method he used to arrive at his conclusion, the Defendant's motion failed. The Defendant's motion is right, though, to demand an explanation as to "how Shaker's 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." But the Court found that Shaker has provided this explanation.

According to the Defendant, Shaker "has offered no explanation of what principles, within his 30 years of experience, lead him to distinguish multi-blow injury patterns from single-impact-plus-fall patterns. He has identified no analytical framework, no checklist, no protocol, and no error-testing mechanism." While he did not identify a checklist, protocol, or error-testing mechanism, Shaker did cite the specific characteristics of the injuries that led him to conclude that they were inconsistent with the events described by the Defendant. He cited the nature of the injured bones and the severity to support his conclusion that they could not have been caused by one strike and a fall. This explanation is sufficient in the Court's view.

To evaluate the reliability of Shaker's experience-based testimony, the Court will examine whether Shaker's experience-based methodology is generally accepted in the forensic pathology community and whether his preparation is of a kind that others in this field would recognize as acceptable. Shaker reviewed the medical records and performed an autopsy, and then relied on his training and experience to reach conclusions about what could have caused Brannon's injuries. This is the same approach taken by the Defendant's experts, and it appears to be accepted in the field of forensic pathology.

The Defendant argued that Shaker utilized the unreliable principle that "multiple injuries equals multiple blows." But Shaker's conclusion was not based on such a simple principle. He testified that he considered which bones were injured and the geographic distribution of the injuries, not merely their number. Moreover, Shaker's inability to determine the exact number of impacts does not render his opinion that the injuries were inconsistent with one strike and a fall inadmissible as a matter of law.

Finally, Shaker's opinion is not unreliable just because he did not "rule out" the facts the Defendant relies on to support his version of events, i.e., Brannon's lack of protective reflexes and intoxication. Shaker expressly considered the possibility that Brannon's injuries were caused by a single strike and a fall to the ground and testified explicitly that some of the injuries could have been caused by those impacts but ultimately found no way to square the injuries with that explanation because of their severity. Because Shaker's opinion is limited to ruling out the Defendant's version of events, he need not rule out any other possible explanations. The Court will, therefore, not exclude Shaker's opinion.

Held

The Court denied the Defendant's motion to exclude the testimony of Adel Youssef Shaker.

Key Takeaway

As long as a logical basis exists for an expert's opinion and the inadequacies are fully disclosed to the jury, the weaknesses in the underpinnings of the opinion go to the weight and not the admissibility of the testimony.

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