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Expert witness testimony that is an opinion based on the propriety of a defendant’s action is a question for the jury to determine, not for the court acting as gatekeeper.

The Ninth Circuit withdrew its prior opinion—that the court erred in withholding testimony under improper application of the hearsay rule—and held, in this new opinion, that a due process question was “open for exploration,” and the plaintiff may prevail on the narrower issue of “whether defendants were deliberately indifferent to Vogel’s serious medical needs.” The Estate of Eric Vogel brought an action that alleged that the County of Maricopa jail officers caused Vogel’s death by subjecting him to an unreasonable search and seizure, denying Vogel’s due process, and acting with deliberate indifference to his serious medical needs. This Ninth Circuit Panel concluded that the issue was not presented properly because of the district court’s improper evidentiary ruling. The district court improperly excluded any mention of “pink underwear” in the due process claim. The Ninth Circuit held, “unexplained and undefended, the dress-out in pink appears to be punishment without legal justification.” The district court excluded the expert witness opinion of Dr. Spitz because it was not supported by the Daubert factors. This was error and Dr. Spitz’s testimony, asserting his opinion that the guard’s treatment could have exacerbated Vogel’s condition, was not for the court as gatekeeper to determine. The proper determination was for the jury on whether or not the guard’s treatment was an actual cause of Vogel’s death. REVERSED and REMANDED.