DAVID F. HAMILTON, United States District Judge.
Plaintiff William Jordan has moved to exclude the testimony of Dr. Brent Furbee on the grounds that it fails to meet the standards of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), its progeny, and Rule 702 of the Federal Rules of Evidence.
The defense in this excessive force case intends to call Dr. Furbee, a doctor who specializes in emergency medicine and toxicology, to testify about the consequences of taking Xanax, an antidepressant medication, especially in combination with alcohol. Plaintiff had taken Xanax and alcohol on the day of his suicide threat and the encounter with the police that is in dispute here.
Neither side has provided the court with a copy of Dr. Furbee's report under Fed.R.Civ.P. 26(a)(2)(B), so the court can discern his proposed testimony only from his deposition testimony. The deposition testimony was elicited primarily by plaintiff's counsel and therefore is not the strongest or clearest presentation of Dr. Furbee's opinions.
Dr. Furbee plainly has sufficient training, education, and experience to address the general topic of the effects of Xanax and alcohol. The question presented by plaintiff's motion is whether Dr. Furbee offers anything other than speculation about their effects on plaintiff, so that his testimony would be helpful to the trier of fact. The deposition testimony explored a number of questions where Dr. Furbee was unable to answer specific and quantitative questions.
The general thrust of Dr. Furbee's testimony is that Xanax, either alone or with alcohol, can cause some minority of patients to become agitated, aggressive, and even violent, at least in confrontational situations, and that it can also interfere with memory. Dr. Furbee testified in his deposition that it is more likely than not that plaintiff's "aggressive response to what he perceived as confrontation was influenced to a degree by the presence of alcohol and the Xanax." Furbee Dep. at 21. Although the drug generally has sedative effects, it has "paradoxical" effects in some patients. (Similarly, alcohol is generally a depressant, but some people become aggressive when they are intoxicated.) Dr. Furbee was unable to specify percentages for such paradoxical aggressive effects.
Scientific reports indicate it may be as low as one percent and as high as 29 percent. Also, Dr. Furbee did not have precise information about the doses that plaintiff took on the day in question. All agree, however, that the Xanax doses were in the therapeutic range as opposed to a toxic range.
Plaintiff's argument is based on one serious error in quotation. Plaintiff quoted a study by Dr. Jonathan Cole as having concluded: It is hard to make the case that alprazolam [generic term for Xanax] has any anger releasing properties." In fact, the sentence was comparing alprazolam to other drugs in the same class and stated: "It is hard to make the case that alprazolam has any unique anger releasing properties." Cole, Adverse Behavioral Events Reported in Patients Taking Alprazolam and Other Benzodiazepines, J. Clinical Psychology, Oct. 1993 at 58-59 (emphasis added). Plaintiff's omission of the word "unique" completely inverted the meaning of the sentence. The article itself tends to support Dr. Furbee's opinions.
Plaintiff's argument is also based on a significant misreading of one study discussed by Dr. Furbee. The Bond study addressed effects of "acute" doses of Xanax with alcohol, and the doses actually used in the study were in the therapeutic range, not the toxic range, as argued by plaintiff. See Bond, The Combination of Alprazolam and Alcohol on Behavioral Aggression, J. Stud. Alcohol, Supplement No. 30, 1993, at 30.
Plaintiff's remaining arguments are based on some important concessions obtained from Dr. Furbee during his deposition, but those concessions do not render his opinions inadmissible. Dr. Furbee is not being asked to state that, based solely on the evidence of Xanax and alcohol intake, it is more likely than not that plaintiff Jordan became aggressive and violent. There is plenty of additional evidence to that effect, though of course it is contested and its credibility is open to challenge. The combination of eyewitness testimony of plaintiff's behavior and the doctor's explanation of how such behavior can result from the medicine and alcohol is a fair way of proving to a jury that the apparently calm and mild-mannered man the jury sees in court actually became aggressive and violent at the time of the incident in question. The evidence from Dr. Furbee may thus assist the jury to understand the evidence, to understand how and why the events — as described by defendants — could occur. To the extent that plaintiff has extracted concessions that limit the probative value of Dr. Furbee's testimony, the Supreme Court explained in Daubert: "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." 509 U.S. at 596.
Plaintiff's motion to exclude the testimony of Dr. Furbee is therefore denied. Finally, for the benefit of counsel on both sides, the court does not "certify" or declare witnesses to be "experts" when "tendered" as such during a trial. Instead, if there is an objection to an offered opinion, the court will consider the objection. The court's jury instructions will refer to "opinion witnesses" rather than "expert witnesses."
So ordered.