opinions, the bases and reasons for those opinions, and the
information he considered in forming the opinion. As Plaintiff
notes, if Defendants had further questions for Dr. Walden he
could have been deposed. The motion to strike his report was
correctly denied. Defendants had ample notice of the subject
matter of Dr. Walden's expert testimony.
G. Dr. Walden's Testimony Was Properly Admitted
Defendants next argue that Dr. Walden's testimony should have
been excluded because it did not meet the standard for
admissibility of expert testimony set out in Daubert v. Merrell
Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993). Defendants contend that Dr. Walden's testimony
failed to satisfy the Daubert requirement of reliability, that
is, testing, peer review, potential rate of error, and general
acceptance in the relevant scientific community. They argue that
Dr. Walden cited no authority for his opinions and failed to
identify the one study (regarding the risk of skin cancer from
trauma) that he did cite.
The only objection made by Defendants to Dr. Walden's
testimony at trial was that his testimony that Plaintiffs immune
system had been compromised by the conditions of his confinement
did not meet the Daubert test. As Plaintiff points out,
however, this was not an opinion that he asked the witness
about. It was only on cross-examination that Defendants elicited
Dr. Walden's opinion that, to a reasonable degree of medical
certainty, the trauma and exposure to which Plaintiff had been
subjected made it more likely than not that he would contract
diseases such as cancer, heart disease, diabetes, or peptic
ulcer. Defendants then objected to this opinion, which was not
included in Dr. Walden's report. Defendants cannot now complain
about obtaining testimony they elicited during their
cross-examination of the witness because it proved unfavorable
to their case.
Dr. Walden, who was accepted as an expert in family medicine,
was certified as a diplomate of the American Board of Family
Physicians in 1976, and was recertified in 1982, 1988, and 1994.
He currently is head of the Family Practice Department of St.
Joseph Mercy Hospital in Michigan, and a member of several
medical associations. His curriculum vitae, submitted with his
October 2000 report, describes his education and professional
experience since his licensing by Michigan in 1967. Plaintiff
asserts without contradiction that he ventured only opinions on
matters that a practicing physician's training and clinical
experience would support. Moreover, Dr. Walden testified that
his opinions were based on Plaintiffs medical history.
Defendants object that Dr. Walden "added nothing to the record
which was not already in evidence from [Plaintiff's] own
testimony." Memorandum, at 19. This objection was not raised at
trial and in any event is not a reason for excluding his
testimony but rather a matter for argument to the jury.
Furthermore, Defendants did not seek a pretrial Daubert
hearing on Dr. Walden's qualifications to testify as an expert
on the matters contained in his reports.*fn9 Had such a
motion been filed,
Plaintiff could have presented additional evidence on the
scientific bases for Dr. Walden's opinion.
In sum, Dr. Walden's testimony was admissible.
H. Plaintiff Presented Sufficient Evidence of Deliberate
Indifference to His Medical Needs
Defendants next argue that Plaintiff failed to prove that the
prison officials were deliberately indifferent to his serious
medical needs, as required by Estelle v. Gamble, 429 U.S. 97,
104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
Certainly mere medical malpractice does not constitute a
federal constitutional violation. E.g., Mitchell v. Roach,
1999 U.S. Dist. LEXIS 3655 (D.C. March 12, 1999). Plaintiff,
however, presented evidence that treatment for his glaucoma and
skin cancer was delayed for substantial periods, despite his
repeated grievances, Defendant Poteat admitted receiving these
grievances. Memorandum at 23-24. The delay in treating his skin
cancer finally required surgical removal of the lesion rather
than cryosurgery, which clearly would have been a less invasive
procedure. The delay in providing him with medically ordered
clothing and mattress cover increased the risk of future skin
cancer. The delay in treating his glaucoma resulted in corneal
swelling, increased pressure and pain, and the possible loss of
his eye. The jury was instructed that in order to find for
Plaintiff on the Eighth Amendment claims they must find that "a
Defendant acted or failed to act despite knowledge of a
substantial risk of serious harm." The verdict was plainly
supported by the evidence.
Moreover, as Plaintiff points out, Defendants did not raise
this issue before judgment and therefore have waived the
argument. Whelan v. Abell 48 F.3d 1247, 1251 (D.C.Cir. 1995);
Kattan v. District of Columbia, 995 F.2d 274 (D.C.Cir. 1993),
cert. denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 71
I. Plaintiff Was Not Required to Present Evidence of The
Individual Defendants' Financial Resources.
The jury returned verdicts assessing punitive damages on
certain of the claims against Defendants Wiley,