IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO

CRIMINAL DIVISION

STATE OF OHIO, :
:
Plaintiff, :
: Case No. 19CR-2735
vs. :
: Judge Michael J. Holbrook
WILLIAM S. HUSEL, :
: (Daubert Hearing Requested)
Defendant. :
:

STATE’S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF DR.

JAMES CLAUDE UPSHAW DOWNS

Now comes the State of Ohio, by and through undersigned counsel, and hereby

moves to exclude the trial testimony of Defendant’s expert witness, Dr. James Claude

Upshaw Downs, MD, pursuant to Ohio Evid. R. 402, 403(A), 702(A), 702(B), 702(C) and

704. As a medical examiner, Dr. Downs is not qualified to testify about palliative care. Dr.

Downs has not provided the State with any information in his curriculum vitae (“CV”)

(attached as State’s Exhibit A) or report (attached as State’s Exhibit B) that points to any

expertise in the area of palliative care. Dr. Downs admits in his report that “the propriety

of medication use, dosing, and scheduling” is more appropriately ascertained by “active

practitioners” in the field. Dr. Downs is not an active practitioner in this field. His lack of

expertise in this area makes any opinion he offers on this topic unreliable in violation of

Evid. R. 702(C) and Daubert v. Merrell Dow Pharma., Inc. 509 U.S. 579 (1993), as

adopted by the Ohio Supreme Court.

Additionally, Dr. Downs offers opinions on topics that invade both the role of this

Court and the province of the jury. In particular, Dr. Downs’s report states “an intervening

proximate cause may be superimposed on an otherwise dying patient . . . [i]n this case, a

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clear such intervening event cannot be established beyond a reasonable doubt.” As this

type of opinion has long since been deemed improper, Dr. Downs’s testimony in this regard

should be excluded.

Pursuant to Ohio Evid. R. 104(A), prior to allowing Dr. Downs to offer testimony

to the jury, the Court must make a preliminary determination as to whether he is qualified

to testify as an expert on this subject matter, and whether his opinions meet the requisite

threshold of reliability. In Daubert, the United States Supreme Court declared that the trial

court is to serve as the “gatekeeper” with regard to the admission of expert testimony.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This “gatekeeping”

function is to ensure that “any scientific testimony or evidence admitted is not only

relevant, but reliable.” Daubert, 509 U.S. at 589. The Ohio Supreme Court adopted this

role for Ohio trial court judges in Miller v. Bike Athletic Co., 80 Ohio St. 3d 607 (1998).

Trial courts do not have “discretion to abandon the gatekeeping function.” In re

Meridia Prods. Liab. Litig., 328 F. Supp. 2d 791, 804 (ND Ohio, 2004) (quoting Kumho

Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 159 (1999) (Scalia, J., concurring) (emphasis

added).

As such, the State respectfully requests the Court conduct a Daubert hearing outside

the presence of the jury prior to allowing Dr. Downs to be called as a witness in this matter.

The State was unable to bring this motion in limine prior to the start of trial, as the Court

permitted Defendant to provide the State with his expert witnesses’ names and reports after

trial had already begun. This however, does not obviate the Court’s gatekeeping function

under Evid. R. 104(A), 702(A), 702(B), 702(C), 704, and Daubert.

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 I. Dr. Downs’s Background and Proffered Opinions

Per Dr. Downs’s CV, he received a B.S. in biochemistry before attending medical

school and graduating with an M.D. Dr. Downs is board certified with the National Board

of Medical Examiners, and the American Board of Pathology in Anatomic, Forensic, and

Clinical Pathology. Dr. Downs’s other trainings include the American Board of

Medicolegal Investigators and Peace Officer Standards and Training. Dr. Downs’s CV

states that he has 31 years of practice as a forensic pathologist/medical examiner.

Dr. Downs does not have any particular training, skill, expertise, or experience in

palliative care procedures. While Dr. Downs is a physician, it is does not appear that Dr.

Downs provides any care to living patients, in a palliative setting or otherwise. Dr. Downs

is a forensic pathologist, and in his capacity as such, he conducts autopsies on deceased

individuals in order to determine their particular causes of death. Despite Dr. Downs’s

medical background, his knowledge, training, skill, experience, and expertise do not

qualify him to opine on palliative care procedures. In his report, Dr. Downs opines that

“[m]any patients undergoing palliative care require increased medication doses to achieve

the same desired clinical effects.” State’s Exhibit B. Dr. Downs continues claiming “[a]t

times, such patients can become accustomed to large doses that might result in adverse

consequences to a more typical patient.” Id. Dr. Downs ends his opinion by stating that “a

chronic user of certain drug classes, such as opioids, can build up a tolerance and

metabolize significantly more of similarly active agents than a similar, but medication-

naïve, subject.” Id.

Dr. Downs’s report also contains the following particularly objectionable opinion:

Medically, proximate cause is the initial event that sets in motion an

unbroken chain of events terminating in death. Rarely, an
intervening proximate cause may be superimposed on an otherwise

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 dying patient (e.g., a gunshot wound to a comatose patient). In this
case, a clear such intervening cause cannot be established beyond a
reasonable doubt.

Id. Dr. Downs’s opinions about proximate causation are not an accurate reflection of the

Ohio Jury Instruction on the issue of causation. Nor are they an accurate reflection of the

legal standards applicable to this case. Furthermore, these opinions do not satisfy the

requisite requirement of being beyond the common knowledge of the jurors.

II. Law and Analysis

Pursuant to Evid.R. 104(A), the trial court determines whether an individual

qualifies as an expert, and that determination will be overturned only for an abuse of

discretion. State v. Williams (1983), 4 Ohio St.3d 53, 58, 4 OBR 144, 148, 446 N.E.2d 444,

448. Admissibility of expert opinion testimony is governed by Evid. R. 702. Evid. R. 702

requires that: (A) the witness’s testimony relate to matters beyond the knowledge or experience

of a layperson; (B) the witness have specialized knowledge, skill, experience, training, or

education regarding the subject matter of the testimony; and (C) the witness’s testimony be

based on reliable scientific, technical, or specialized information. Evid. R. 702. “[T]he party

offering a witness as an expert has the burden of establishing that the witness is qualified

to competently give such testimony.” Buroker v. Pratt Indus., Inc., 10th Dist. Franklin No.

19AP-383, 2020-Ohio-2845, ¶ 34 (quoting Beattie v. McCoy, 10th Dist. Franklin No. C-

17019, 2018-Ohio-2535, ¶ 25 (citing Tully v. Mahoning Express Co., 161 Ohio St. 457

(1954), paragraph two of the syllabus, and Wright v. Hamilton, 141 Ohio app. 3d 296 (12

Dist. 2001))) (emphasis added).

A. Dr. Downs is not qualified to offer an expert opinion in the field of palliative care.

As the initial part of the gatekeeper role, the Court must ensure that an expert’s

testimony does not exceed the scope of the expert’s actual area of expertise. As such,

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Defendant must show Dr. Downs is “is qualified as an expert . . . regarding the subject

matter of the testimony.” Evid. R. 702(B). Dr. Downs must be more than just “qualified in

general.” He must be qualified as an expert with regard to each of the specific areas

underlying the opinions he is offering.

In cases dealing with medical issues, it has been made clear in Ohio courts, and

courts across the country, that an expert witness’s testimony must be limited to the scope

of practice and field of practice where that individual is actually an expert. See, e.g., R.T.

v. Knobeloch, 10th Dist. Franklin No. 16AP-809, 2018-Ohio-1596, ¶ 79 (trial court

correctly prohibited a doctor specializing in anesthesia and pharmacology from opining on

a child’s diagnosis of bipolar disorder, as the witness was “not a psychiatrist or

pediatrician” and therefore “did not have the expertise required” to render an opinion on

issues in that area); Hager v. Fairview Gen. Hosp., 8th Dist. Franklin No. 83266, 2004-

Ohio-3959, (expert testimony on the cause of dental injuries was properly found to be

“reserved to the practice of dentistry” and “outside the knowledge, skill, and expertise of a

nurse”); Douglass v. Salem Community Hosp., 7th Dist. No. 2002-CO-07, 153 Ohio

App.3d 350, 2003-Ohio-4006 (a forensic psychiatrist was not qualified to opine on hiring

practices throughout the hospital); Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216,

770 P.2d 182, 190 (1989) (a pharmacist was not qualified to testify as an expert on certain

medical issues because their lack of medical training might lead to an error in the

assessment of proper treatment).

The State that does not dispute that Dr. Downs appears to have had an interesting

and impressive career in the field of forensic medicine. Respectfully, however, this does

not qualify him to opine on issues relating to palliative care procedures, medication

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selection, or dosing requirements. As stated above, Dr. Downs has medical training, but

the training Dr. Downs has received is in the area of anatomical, forensic, and clinical

pathology. Specifically, Dr. Downs has spent his career practicing as a forensic pathologist.

It does not appear that Dr. Downs has spent any portion of his career diagnosing or

providing treatment to patients in an ICU or palliative care setting. As such, allowing Dr.

Downs to opine on palliative care matters would violate Evid. R. 702(B).

B. Dr. Downs’s opinions on palliative care matters do not meet the requisite level of
reliability required by Evid. R. 702(C) and Daubert.

In Daubert, the United States Supreme Court established a test to ensure that

admitted expert testimony is both relevant and reliable. Daubert set forth a list of factors

relating to reliability, including: (1) whether the expert’s reasoning or methodology has

been or could be tested; (2) whether the expert’s reasoning or methodology has been

subject to peer review and publication; (3) the known potential rate of error; and (4) the

level of acceptance of the expert’s reasoning or methodology by the relevant professional

community. Daubert, 509 U.S. at 593-94. This list of factors is non-exhaustive. If an expert

is not qualified as an expert in a particular field, that makes their opinions in that field per

se unreliable.

“If the witness is relying solely or primarily on experience, then the witness must

explain how that 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 fact.”

Advisory Committee Note to Fed. R. Evid. 702. “[T]he more subjective an expert’s inquiry,

the more likely the testimony should be excluded as unreliable.” In re Meridia Prods. Liab.

Litigation, 328 F.Supp.2d 791 (N.D.Ohio 2004). An expert’s qualifications, their

conclusions, and their assurances of reliability are “not enough” to meet the Daubert

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standard for reliability. Id. Dr. Downs’s lack of training and experience in the critical care

and palliative care fields makes his opinions on these topics unreliable. Training and

expertise in these fields would be required to come to a conclusion to a reasonable degree

of medical certainty that increased medication is required for patients that have prior

excessive opioid ingestion. Therefore, any testimony regarding increased medication for

patients with prior opioid use should be inadmissible. Dr. Downs’s report offers no basis

for his opinions on matters in this field. Instead, he calls upon the Court to rely solely on

his subjective statements without any foundation for how he arrived at his conclusions.

Defendant cannot meet his burden of establishing that Dr. Downs’s opinions on

palliative care are reliable. As such, the State respectfully requests the Court to prohibit Dr.

Downs’s testimony in this area subsequent to Evid. R. 703(C).

C. Dr. Downs’s opinions on cause of death invade both the role of this Court and the
province of the jury.

1. Dr. Downs’s opinions invade the province of the jury in

violation of Evid. R. 703(A) and Evid. R. 704.

Evid. R. 704 states that opinion testimony “is not objectionable solely because it

embraces an ultimate issue to be decided by the trier of fact.” Evid. R. 704. A trial court

may refuse to admit expert testimony on an ultimate issue if “such testimony is not essential

to the jury’s understanding of the issue and the jury is capable of coming to a conclusion

without it.” State v. Campbell, 1st Dist. Hamilton Appeal Nos. C-010567 and C-010596,

2002-Ohio-1143, 2002 Ohio App. LEXIS 1158, *12 (additional citations omitted).

However, opinion testimony that establishes whether a particular set of facts present

in a case meets the threshold burden of proof on an ultimate issue breaches the

province of the jury. See Shepherd v. Midland Mutual Life Ins. Co. (1949), 152 OS 6, 39

OO 352, 87 NE2d 156 (“an opinion, expert or otherwise, may not be admitted when it, in
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effect, answers the very question as to the existence or nonexistence of an ultimate fact to

be determined by the jury.”)

Dr. Downs’s opinion on what the jury may or may not find beyond a reasonable

doubt is not a permissible expert opinion under the binding precedent set forth above. It is

nothing more than a closing argument cloaked as an expert opinion. Additionally, the

portions of Dr. Downs’s reports that discuss intervening causes of death such as a gunshot

wound to a comatose patient are not beyond the common knowledge of the jury. A jury

does not need an expert witness to help them understand this topic. As such, Dr. Downs’s

opinions in this regard to not meet the requirements of Evid. R. 702(A).

2. Dr. Downs’s opinions on medical standards for cause of death

are not relevant and the risk of confusion of the issues
substantially outweighs any probative value.

As Dr. Downs’s report notes, his opinions deal with the “medical” standard for

causation. As the Court is aware, the jury will not be tasked with determining causation in

a murder case based on the medical standard for cause of death determinations. Evidence

pertaining to medical standards of causation is not relevant in this case, and should be

excluded under Evid. R. 402. Evid. R. 402 (“Evidence which is not relevant is not

admissible.”). However, even if this evidence was relevant, it would only serve to cause

confusion of the issues and applicable standards in this case. Evid. R. 403(A) mandates the

exclusion of evidence when the risk of confusion of the issues substantially outweighs any

probative value. Evid. R. 403(A).

3. Dr. Downs’s opinions invade the exclusive province of the

Court.

“An expert’s interpretation of the law should not be permitted as testimony, as the

interpretation of the law is within the sole province of the court.” Wagenheim v. Alexander

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Grant & Co. (1983), 19 Ohio App.3d, 7, 19, 482 N.E.2d 955. See also, Waste Mgmt. of

Ohio, Inc. v. Bd. Of Health of the City of Cincinnati, 159 Ohio App. 3d 806, 2005-Ohio-

1153, ¶ 55 (noting “expert testimony regarding legal issues is simply not helpful”). Dr.

Downs’s opinions invade the sole province of this Court as far as it includes an opinion on

what constitutes “reasonable doubt.” Further, his opinions about the medical standards for

proximate causation are not in accordance with Ohio law. As the Ohio Jury Instructions set

forth, “[t]here may be one or more causes of an event. However, if a defendant’s act or

failure to act was one cause, then the existence of other causes is not a defense.” 2 OJI CR

417.25 (2020). The Court alone is tasked with instructing the jury on the relevant law. As

such, Dr. Downs should not be permitted to testify on these topics for this additional reason.

D. Boaston Issues

In State v. Boaston, the Ohio Supreme Court set forth a bright line rule concerning

expert testimony — “it is error to admit expert-opinion testimony when the expert’s opinion

was not set forth in a written report prepared in compliance with Crim. R. 16(K).” State v.

Boaston, 160 Ohio St. 3d 46, 2020-Ohio-1061, ¶ 1. In Boaston, the expert authored a written

report as required by Crim. R. 16(k). Id. at ¶ 56. However, in her trial testimony, the expert

offered opinions that were not contained in her expert report. Id. The Ohio Supreme Court

ultimately held “[t]he trial court accordingly erred in allowing the opinion testimony that went

beyond the scope of the supplied expert report.” Id. at ¶ 58. The State will object to any

opinions Dr. Downs seeks to testify to that are not included in his written report.

E. The exclusion of Dr. Downs’s testimony is required by law and does not infringe
upon Defendant’s rights.

While Defendant has a right to present evidence in his defense, “[i]n the exercise

of this right, the accused, as is required of the State, must comply with established rules of

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procedure and evidence designed to assure both fairness and reliability in the ascertainment

of guilt and innocence.” State v. Swann, 119 Ohio St. 3d 552, 2008-Ohio-4847, ¶ 14

(quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). “[T]he exclusion of

unreliable evidence is a principal objective of many evidentiary rules.” Id. (quoting United

States v. Scheffer, 523 U.S. 303, 309 (1998) (citing Fed. R. Evid. 702, 802, and 901, and

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993))). “‘Chambers

therefore does not stand for the proposition that the defendant is denied a fair opportunity

to defend himself whenever a state or federal rule excludes favorable evidence.’” State v.

Swann, 119 Ohio St. 3d 552, 2008-Ohio-4847, ¶ 15 (quoting Scheffer, 523 U.S. at 316).

For all the reasons set forth above, Dr. Downs’s proffered opinions do not meet the

requirements for expert testimony set forth in numerous sections of the Ohio Rules of

Evidence and run afoul of binding judicial precedent. Consequently, the exclusion of Dr.

Downs’s testimony is required by law, and any such exclusion would not infringe upon

Defendant’s rights.

III. CONCLUSION

For the reasons stated above, the State respectfully requests this Honorable Court

conduct a Daubert hearing and bar the expert testimony of Dr. James Claude Upshaw

Downs.

Respectfully submitted,

G. GARY TYACK (0017524)

Prosecuting Attorney

/s/ David F. Zeyen

David F. Zeyen (0068069)
Janet A. Grubb (0017522)
Taylor M. Mick (0095926)

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 Paula M. Sawyers (0061175)
Corinne M. Buker (0095172)
Assistant Prosecuting Attorneys
373 South High Street – 14th Fl.
Columbus, Ohio 43215
(614) 462-3555

Counsel for Plaintiff

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing notice was electronically filed

and served via the Clerk’s electronic filing system on Jose Baez, Diane Menashe, and Jaime

Lapidus, counsel for Defendant, on this day, March 25, 2022.

/s/ Taylor M. Mick

Taylor M. Mick (0095926)
Assistant Prosecuting Attorney

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