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Welch v. Tritt

United States District Court, E.D. Wisconsin

August 16, 2016

JUSTIN P. WELCH, Plaintiff,


          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On February 22, 2016, the defendants filed a joint motion for summary judgment, as well as proposed findings of fact, a brief in support of the motion, and several declarations. (Motion, Docket #61; Proposed Findings of Fact, Docket #69; Brief in Support, Docket #68; Declarations of Mark Jensen, Kyle Tritt, Blake Strahota, Welcome Rose, Jeffery Manlove, and Jason Grahl, Docket #62, #63, #64, #65, #66, and #67, respectively). On April 19, 2016, the plaintiff, Justin P. Welch (“Welch”), filed a brief in opposition to the motion, a response to the proposed findings of fact, and two declarations. (Brief in Opposition, Docket #74; Response to Proposed Findings of Fact, Docket #75; Declarations of Justin P. Welch and Jeffery E. Olson, Docket #76 and #77, respectively). He did not submit a separate statement of additional facts. On May 3, 2016, the defendants filed a reply in support of their motion and a reply to Welch’s response to their proposed findings of fact. (Reply in Support, Docket #79; Reply to Response to Proposed Findings of Fact (“RRPFF”), Docket #82). The motion is fully briefed and, for the reasons explained below, it will be granted.


         Federal Rule of Civil Procedure (“FRCP”) 56 provides the mechanism for seeking summary judgment. FRCP 56 states that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine” dispute of material fact is created when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         3. FACTS

         3.1Olson Declaration

         Preliminarily, the Court must address the defendants’ motion to strike the purported expert testimony of Jeffery E. Olson (“Olson”). (Docket #80). In response to the defendants’ motion for summary judgment, Welch relies on testimony from his fellow inmate and apparent jailhouse lawyer, Olson, to dispute several facts. See RRSFF ¶¶ 36, 39, 43, 44, 47, 48. Olson claims to have an IQ of over 160, received medical training while serving as a hydraulic fluids mechanic with the U.S. Army, and has helped his three daughters study for nursing school using “text/schoolbooks.” (Docket #77 at ¶¶ 1, 7). Olson provides testimony on the amount of blood that Welch allegedly lost during the incident, id. at ¶¶ 4-6, on when a certain amount of blood loss constitutes a “life-threatening condition” that requires hospitalization, id. at ¶¶ 8, 10, 13, and on the reliability of the “elevated legs” blood pressure test to examine the effects of blood loss on the human body, id. at ¶¶ 9, 12, 13.

         Admission of expert testimony “is governed by Federal Rule of Evidence 702 and the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals., Inc[.]” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Such testimony may only be admitted “when it is reliable and would assist the trier of fact to…determine a fact at issue in a case.” Id. The party presenting the testimony “bears the burden of demonstrating that the expert’s testimony would satisfy the Daubert standard.” Id.

         Under Federal Rule of Evidence (“FRE”) 702, the Court first determines whether an individual qualifies as an expert “by knowledge, skill, experience, training, or education.” Fed.R.Evid. 702; see also Fed. R. Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified[.]”). In doing so, the Court considers the expert’s “full range of practical experience as well as academic or technical training[.]” United States v. Parra, 402 F.3d 752, 758 (7th Cir. 2005). It must “compar[e] the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness’s testimony.” Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990).

         Welch fails to carry his burden to show that Olson is qualified to give medical opinions. Olson’s only bases to establish the requisite training and experience are: 1) his IQ; 2) an unspecified amount of medical training he received in the Army; 3) experience estimating hydraulic fluid loss; and 4) reading medical textbooks. Olson does not claim to be a medical doctor or other medical professional, and thus does not qualify as a medical expert who can reliably educate the jury on the effects of blood loss on the human body. See Jones v. Lincoln Elec. Co., 188 F.3d 709, 723-24 (7th Cir. 1999) (concluding that only a medical doctor could testify as to the process in which the human body absorbs certain substances); Wintz v. Northrop Corp., 110 F.3d 508, 513 (7th Cir. 1997) (concluding that only a medical doctor, not a toxicologist, could explain the effects of bromide on pregnant women). In fact, “simply because a doctor has a medical degree does not make him qualified to opine on all medical subjects.” Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010). Olson has not claimed possession of any formal medical degree, certification, or experience, and therefore his asserted “expertise” falls woefully short of the requirements of FRE 702. At best, Olson is an expert on hydraulic systems, but this case involves a human body.

         Detecting this flaw, Welch claims that Olson actually offers lay opinion testimony which is subject to FRE 701. (Docket #83). FRE 701 limits lay opinion testimony to that which is: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 702. Welch fails to show that any of these elements are present. First, none of Olson’s testimony could be based on his own perception, as he was not present for any of the events at issue. Second, the only factual basis for his opinions is photographs of Welch’s cell. The jury could just as readily view the photographs themselves. Finally, Olson’s testimony is clearly based on his purported expertise, contrary to FRE 701's final element.

         In sum, the Court concludes that Welch fails to meet the standards of either FRE 701 or 702 in proffering Olson’s opinion testimony. Accordingly, the Court will grant the defendants’ motion to strike Olson’s declaration and will not consider his testimony for the purposes of deciding the summary judgment motion.

         3.2 Relevant Facts

         The Court will provide a sequence of events, as well as addressing other relevant factual topics, noting the parties’ disagreement where appropriate. In accordance with the standard of review, the facts and inferences therefrom are construed in Welch’s favor. Further, the Court must disregard Olson’s testimony as noted above.

         3.2.1 The July 4, 2014 Incident

         During the relevant period, Welch was incarcerated at Waupun Correctional Institution (“Waupun”). RRSFF ¶ 1.[1] Defendants Kyle K. Tritt (“Tritt”), Blake R. Strahota (“Strahota”), Jason J. Grahl (“Grahl”), and Mark J. Jensen (“Jensen”) were employed by the Wisconsin Department of Corrections (“DOC”). RRSFF ¶¶ 3-6. Tritt was a Lieutenant, Strahota was a Correctional Officer, Grahl was a Correctional Sergeant, and Jensen was a Nurse Clinician. RRSFF ¶¶ 3-6.

         On July 4, 2014, Officer Loison Kast (“Kast”), and defendants Strahota and Grahl were assigned to the segregation building. RRSFF ¶ 8. Around 6:45 p.m., while conducting routine rounds of his assigned post, Kast observed Welch leaning against the wall in his cell with blood on the floor. RRSFF ¶ 8. Kast called for a sergeant to report to Welch’s cell; Strahota and Grahl responded. RRSFF ¶ 9-11, 13. Tritt was also called. RRSFF ¶ 12.

         Upon arriving at the cell, Strahota observed “a lot of blood” on the floor and a self-inflicted wound on Welch’s left arm near the elbow. RRSFF ¶ 14. Grahl ordered Welch to come to the front of the cell so that he could be restrained. RRSFF ¶ 13. Welch complied, while Strahota applied pressure to Welch’s wound to stop the bleeding. RRSFF ¶ 15.

         Tritt and Officer Michael Britten (“Britten”) arrived as Welch’s cell door was being opened. RRSFF ¶¶ 16-17. Tritt observed blood on the cell floor and Strahota applying pressure to Welch’s elbow. RRSFF ¶ 18. Britten wrapped a towel around Welch’s arm and Strahota applied pressure on the towel. RRSFF ¶ 19. Tritt then told Britten to obtain a hand-held video camera to document the incident as was standard practice at Waupun for cell extractions involving self-inflicted wounds. RRSFF ¶¶ 20-21. The events were recorded from this time until Welch was returned to an observation cell. RRSFF ¶ 63.[2]

         Welch then collapsed to the floor in his cell. RRSFF ¶ 22. The officers applied more restraints to Welch and continued to apply pressure to his wound. RRSFF ¶ 22. Tritt radioed another officer to prepare an armed escort in the event Welch would need to be transported out of the institution to a hospital. RRSFF ¶ 23. Welch was taken via wheelchair to the nurse station. RRSFF ¶ 24. Strahota applied pressure to the wound as Welch was wheeled to the nurse station. RRSFF ¶ 25. Strahota was present for a few minutes once Jensen arrived, but ...

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