The Plaintiff, Herbert Johnson, as the Personal Representative of the Estate of Herbert Johnson III, had brought this action pursuant to the Section 768.21, Florida Statutes (the Florida Wrongful Death Act), alleging that East Coast Waffles d/b/a Waffle House (hereafter, “Waffle House”) negligently owned, controlled, managed, or maintained the premises where his son, Herbert Johnson III was shot and killed.

On or about January 15, 2018, Herbert Johnson III was shot to death at the Waffle House on 11749 East Colonial Drive, Orlando, Orange County, Florida. At the time of the incident, Plaintiff Herbert Johnson III was picking up takeout food from Waffle House with his friends, Rickie Calderon and Calvin Savage. During the time they were waiting for their to-go food, the Waffle House had “loud and belligerent” people inside, with one person telling another person to “come outside.” This rambunctious behavior inside the Waffle House, as described by Rickie Calderon, was confirmed by Waffle House Employees Stephen Heidenreich, Robin Marcus, and Viera Allian. After Herbert Johnson III and his friend exited the Waffle House and got into a black Camaro, Herbert Johnson III was shot and killed by Al-Jalil Byrd in the parking lot.

Herbert Johnson III’s body had been taken to the District Nine Medical Examiner’s Office. The medical examiner, Jennifer Park, had examined the body and determined that Herbert Johnson III’s cause of death was homicide by multiple gunshot wounds. In the toxicology report from Jennifer Park, the peripheral sample had shown .115 g/dL (grams per deciliter) of ethanol, and the vitreous blood sample had shown .102 g/dL of ethanol. Two of the Defendant’s affirmative defenses were (1) that Herbert was “comparatively at fault” for his own death because he “was under the influence of… alcohol at the time” and (2) that he was “more than [fifty] percent at fault for his… own harm” because he “was under the influence… to the extent that [his] normal faculties were impaired and/or [he] had a blood or breath alcohol level of 0.08 percent or higher.”

Dr. Janci Lindsay had been retained by Waffle House in her capacity as a biochemist to assess the toxicology report authored by the medical examiner and to opine whether Herbert Johnson III’s alcohol level had contributed to him being shot and killed by Al-Jalil Byrd. The Plaintiff had moved to exclude Lindsay’s opinions under Daubert, challenging her qualifications, the scientific reliability of her methodology, and the helpfulness of her opinions to the jury.

Toxicology Expert Witness

Janci Chunn Lindsay is a consulting toxicologist and full member of the Society of Toxicology. She obtained a doctoral degree in Biochemistry and Molecular Biology from the University of Texas. She has advised clients about exposure to pharmaceutical and alcohol exposure for over 17 years. Since 2006, she has been an expert witness in numerous civil and criminal cases.

Discussions by the Court

The Plaintiff had conclusorily claimed that Lindsay did not have the requisite knowledge to form an opinion regarding the role, if any, alcohol played in Herbert’s death. However, to the extent that the Plaintiff had challenged Lindsay’s qualifications as a toxicologist, the Court found that the Defendant had established that her experience as a Director of Toxicology and Molecular Biology specializing in forensic toxicology involving drug and alcohol-related incidents for 13 years in addition to her practical experience consisting of regularly performing retrograde and anterograde extrapolations to approximate drug and alcohol levels at the time of an incident using accepted scientific formulas and techniques qualified her to provide her opinions in this case.

The Plaintiff had also made the unsupported assertion that Lindsay’s opinions were “more likely to confuse or mislead” than to help the jury. However, Lindsay’s opinions could have assisted the jury in determining whether the comparative-fault affirmative defenses applied, as well as related issues. Notably, Florida Statutes Section 768.36(2), stated that in any civil action, a Plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a) The Plaintiff was under the influence of any alcoholic beverage or drug to the extent that the Plaintiff’s normal faculties were impaired or the Plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug, the Plaintiff was more than [fifty] percent at fault for his or her own harm.”

The Plaintiff had primarily challenged Lindsay’s opinions on reliability grounds. The Plaintiff had criticized the bases of some of her opinions and had pointed to supposed contradictions involving others. Under the Defendant’s theory of Herbert’s death, Herbert had acted aggressively toward his shooter before he was shot, possibly hitting the man. The Plaintiff had argued that Lindsay’s opinions should be excluded because she had based them on the Defendant’s theory, which, according to the Plaintiff, was not supported by the police report. The Plaintiff had also faulted Lindsay for providing the “fully speculative and unsupported” opinion that “when any individual has alcohol in their system, alcohol influences all of that person’s decisions.” The Plaintiff had further contended that Lindsay contradicted herself by opining both that an individual’s level of intoxication “is subjective” and that “all people are affected by alcohol in the same way.” The Plaintiff had also asserted that, although Lindsay admitted that “she had not been retained as a [human-factors] expert,” she had opined that “human factors may have caused the alleged aggression that could have occurred due to alcohol.”

The Court had found that the Plaintiff had correctly identified the factors for determining a methodology’s reliability, which involved ascertaining (1) whether the expert’s theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. However, the Court had noted that the Plaintiff had disregarded these factors. He did not discuss the methodology’s error rate or whether the methodology has been tested, subjected to peer review and publication, or generally accepted in the scientific community. However, the Defendant established that Lindsay had looked to data and facts in this case. Specifically, the District Nine Medical Examiner’s Office had performed the blood testing of Johnson on January 15, 2018, which had shown positive results for alcohol in Johnson’s system. According to the Examiner’s Office, Johnson’s vitreal fluid BAC was 0.102%, which was lower than Johnson’s peripheral blood BAC of 0.115%. According to Lindsay’s experience and education, the level of alcohol found in Johnson’s vitreal fluid had been representative of his intoxication at the time of his death.

After evaluating the Examiner’s Office’s conclusion, Lindsay had applied those conclusions to established publications, particularly referencing board-certified Forensic Toxicologist, Dr. Kurt Dubowski’s “table of Stages of Alcoholic Influence,” which was used by peers to approximate various psychomotor effects at varying alcohol levels. Hence, Johnson’s blood test results had supported a scientific finding that a sufficient amount of alcohol was found in his body for an expert to opine to impairment of judgment and concentration, distorted perception and reasoning, loss of coordination, and emotional or behavioral control, which resulted in risk-taking behavior. The methodology that Lindsay had used to form her opinions had been based on testing that was generally accepted in the field of toxicology and reliable. Lindsay’s opinions had been based upon the data from the Examiner’s Office, as well as generally accepted and peer-reviewed research, and her training and experience.

Additionally, the Defendant had highlighted a crucial missing fact from the Plaintiff’s Motion: Johnson had exited the vehicle he was in to engage with the shooter. This had been one of the key actions by Johnson that had contributed to his death and had supported Lindsay’s conclusion that his alcohol-related impairments would most likely have influenced Johnson’s decision to get out of the vehicle he was in and confront the three individuals, rather than leave the scene.

Held

The Court denied the Plaintiff’s Daubert motion to exclude Janci Chunn Lindsay’s expert opinions.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways

This case illustrates the importance of establishing an expert’s qualifications, methodology, and helpfulness to the jury when offering expert opinions. The party offering the expert bears the burden of proof on these issues. Strong qualifications based on education, training, and experience are key. The expert’s methodology must be reliable under the Daubert factors – testability, known error rate, peer review/publication, and general acceptance. The opinions must also help the jury determine facts at issue in the case. 

Critiquing an expert’s application of methodology is generally better suited for cross-examination rather than exclusion. Minor contradictions or flaws in how an expert applied a reliable methodology typically go to weight rather than admissibility. 

The Court’s gatekeeping role under Daubert seeks to admit quality expert testimony that will properly assist the jury. This role is not served by excluding testimony merely because some critique can be made regarding the expert’s application of an otherwise reliable methodology. Such critiques are for the jury to consider in weighing the expert opinions. As long as qualifications, methodology and helpfulness are reasonably established, exclusion is inappropriate.

Tag: Wrongful Death