Dunn et al v. Thomas et al

Filing 1299

DAUBERT OPINION AS TO PHASE 2A EIGHTH AMENDMENT CLAIM. Signed by Honorable Judge Myron H. Thompson on 7/13/2017. (kh, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION EDWARD BRAGGS, et al., Plaintiffs, v. JEFFERSON S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:14cv601-MHT (WO) DAUBERT OPINION AS TO PHASE 2A EIGHTH AMENDMENT CLAIM The plaintiffs in this phase of this class-action lawsuit are seriously mentally ill state prisoners and the Alabama Disabilities Advocacy Program (ADAP). The defendants are officials of the Alabama Department of Corrections Associate (ADOC)--Commissioner Commissioner Naglich--who capacities. are sued of in Jefferson Health only Dunn Services their and Ruth official In Phase 2A of the case, the plaintiffs claim that the defendants have failed to provide constitutionally adequate mental-health care to ADOC prisoners with serious mental-health needs, in violation of the Eighth and Fourteenth Amendments U.S.C. § 1983).1 (as enforced through 42 The court has jurisdiction of the claim pursuant to 28 U.S.C. § 1331 (federal question) and § 1343(a)(3) (civil rights). Beginning in December 2016, the court presided over a two-month bench trial concerning this claim. At trial, the parties presented evidence from five expert 1. This case has been divided into three parts for administrative convenience. The claims in Phase 1, which the parties settled with a consent decree approved by the court, are under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and the Rehabilitation Act, 29 U.S.C. § 794, alleging discrimination on the basis of physical disabilities and failure to accommodate those disabilities. See Dunn v. Dunn, 318 F.R.D. 652 (M.D. Ala. 2016) (Thompson, J.). Phase 2A involves mental-health care. The parties settled claims regarding involuntary medication and violations of the ADA and the Rehabilitation Act pending approval by this court, and the trial proceeded on only the Eighth Amendment claim. The claims in Phase 2B challenge the adequacy of medical and dental care under the Eighth Amendment and will be addressed later in the litigation. 2 witnesses, some of whom the parties had objected to prior to trial. the experts’ asserted The parties did not object to any of qualifications, objections under but Daubert the v. plaintiffs Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), to portions of Dr. Raymond Patterson’s testimony and to the methodology underlying Robert Ayers’s opinion, and the defendants asserted Daubert objections against Dr. Kathryn Burns’s and Eldon Vail’s methodologies. The court recently issued an opinion finding that the plaintiffs prevailed on their Eighth Amendment claim in the Phase 2A trial. Braggs v. Dunn, --- F. Supp. 3d ---, 2017 WL 2773833, 2:14cv601-MHT (M.D. Ala. June 27, 2017) (Thompson, J.). In tandem with that opinion, the court entered an order overruling all Daubert objections and promised that an opinion explaining why would follow later. promised Daubert opinion. 3 This is the I. PROCEDURAL BACKGROUND Well before the trial, the court entered a Phase 2 scheduling order setting forth its requirements for the parties should they wish to bring Daubert challenges. The court made clear that, if the parties wished the court to consider any Daubert challenges at trial, “including any unresolved challenges previously raised by either party in litigation on dispositive and class certification Daubert motions,” challenges in they had their trial to address briefs those detailing proposed findings of facts and conclusions of law, and that, “[a]bsent Daubert motions exceptional would not circumstances,” be entertained. separate Phase 2 Pretrial and Motion Deadlines Order (doc. no. 529) at 4-5; see also New Phase 2A Scheduling Order (doc. no. 748) at 4 (affirming deadlines in doc. no. 529). Both Daubert. sides challenged expert testimony under In their opposition to the plaintiffs’ motion for class certification, the defendants challenged Dr. Burns’s methodology under Daubert and stated that Vail 4 was not qualified under Daubert and Federal Rule of Evidence 702 facility. because he did not visit every ADOC The plaintiffs asserted Daubert challenges to the testimony of Ayers and the methodology of Dr. Patterson’s audits in their summary judgment briefing.2 The court objection overruled against Burns the in defendants’ the Daubert class-certification opinion, but did not find it necessary to resolve the remaining Daubert objections before trial. Dunn, 317 F.R.D. 634, 645-49 (M.D. Braggs v. Ala. 2016) (Thompson, J.). The plaintiffs reasserted their Daubert challenges in their pre-trial brief, as required by the court in order to raise their objections at trial. The defendants stated in their pre-trial brief: “The State believes that restating its position on the admissibility of the expert witnesses is unnecessary 2. The plaintiffs also challenged the testimony of Dr. Robert Morgan on Daubert grounds. Pls.’ Pre-Trial Brief (doc. no. at 966) at 269. However, because the defendants did not call Morgan to testify at trial, the 5 here and relies upon the submitted on these issues.” extensive briefing already Defs.’ Pre-Trial Br. (doc. no. 992) at 196 n.893. II. LEGAL STANDARD The Federal admissibility of Rules expert of Evidence testimony. See govern Daubert Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). the v. Rule 702 provides: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: a. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b. The testimony is sufficient facts or data; based on c. The testimony is the product of reliable principles and methods; and plaintiffs’ Daubert challenge to his opinion is due to be denied as moot. 6 d. The expert has reliably the principles and methods facts of this case.” Fed. R. Evid. “gatekeeping Daubert, 702. role” 509 The trial for U.S. at court expert 597, applied to the must witness by serve a testimony, considering three requirements: “First, the expert must be qualified to testify competently regarding the matter he or she intends to address; second, the expert’s methodology ... must be reliable ...; and third, the expert’s testimony must assist the trier of fact through the application of expertise to understand the evidence or determine a fact in issue.” of America, (internal requires 760 F.3d quotation the “reliability” and court Adams v. Laboratory Corp. 1322, 1328 citation to make (11th omitted). both determinations, Cir. 2014) Doing “relevance” disallowing so and expert testimony that is either unreliable or unhelpful to the trier burden of is fact. on Daubert, the 509 proponent U.S. of at expert 587-90. testimony The to establish the admissibility by a preponderance of the 7 evidence. McCorvey v. Baxter Healthcare Corp., 298 Court provided F.3d 1253, 1256 (11th Cir. 2002). In Daubert, non-exclusive the list Supreme of factors to consider a when examining a challenge to the methodology underlying an expert’s testimony, including: whether a theory or technique can be or has been tested; whether a theory or technique has been subjected to peer review or publication; whether a theory or technique has gained widespread acceptance within the relevant community of experts, or, rather, has been unable to garner more than minimal support; and the known or potential rate of error of a technique. Daubert, 509 U.S. at 593-94. These factors are not a “definitive checklist,” but are considerations that may shape flexible inquiry under Rule 702. the trial judge’s Id. at 593-94. “[T]he question of whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude 8 to determine.” United States v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005) (internal quotation omitted). Two additional considerations Daubert inquiry are relevant here. in conducting a First, Daubert’s reliability and relevance inquiry is not supposed to “supplant the adversarial system,” meaning that “[v]igorous cross-examination, presentation of contrary evidence, proof are and the careful instruction traditional and on the burden appropriate attacking shaky but admissible evidence.” of means of Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (citing Daubert, 509 U.S. at 596). Second, the Daubert barriers to admissibility are more relaxed in a bench trial, “where the judge is serving as factfinder,” and the court need not be “concerned about dumping a barrage evidence on a jury.” of questionable scientific Brown, 415 F.3d at 1268 (internal quotation and citation omitted). 9 III. DISCUSSION A. Dr. Kathryn Burns While the defendants did not object to Dr. Burns’s qualification as a correctional mental-health expert, they objected to the methodology she employed to assess the adequacy of mental-health care within ADOC.3 court previously addressed Burns defendants’ the Daubert objection regarding opinion. Braggs v. Dunn, 317 F.R.D. 634 (M.D. Ala. 2016) (Thompson, J.). in the The class-certification In that opinion, the court found that Burns’s methodology of evaluating the adequacy of mental-health care within ADOC facilities was sufficiently reliable to overcome a Daubert challenge, dismissing the defendants’ contentions that her sample size was too small and that her non-random sampling rendered her analysis unreliable. court also found that her Id. at 645-49. expert analysis of The the 3. As a procedural matter, the plaintiffs argue that the defendants have waived their objection to Burns’s testimony by failing to address it in their pre-trial brief. The court does not reach this issue 10 mental-health care system was helpful to the trier of fact. Id. at 649-51. With its previously entered Daubert order, the court reached the same findings on the defendants’ objections at trial--that Burns’s testimony was admissible because her methodology was reliable and conclusions helpful to the trier of fact. In their post-trial brief, the defendants raised two additional grounds for objecting to Burns’s testimony under Daubert. First, the defendants argued that identify Burns failed to during her trial testimony specific prisoners whose experience supported her conclusions and extrapolated.” 1283) at 14. iteration of that Defs.’ she therefore Post-Trial Filing “improperly (doc. no. This objection is simply a different the defendants’ previous argument that Burns’s methodology was unreliable because it did not include a sufficient number of conclusions on a systemic level. argument unconvincing. As data points to make The court finds this noted in the because the defendants’ objection is overruled on the 11 class-certification extensive report observations prisoners and and opinion, that Burns identified conclusions, specific provided sources including documents based of her names of which on evaluated ADOC policies and practices. an she See Joint Ex. 460, Burns Expert Report (doc. no. 1038-1044); see also Jama v. Esmor Corr. Servs., Inc., 2007 WL 1847385, 97-3909, at *26-27 (D.N.J. June 25, 2007) (Debevoise, J.) (finding health-care a limited case sampling reliable, method especially in a prison because the analysis incorporated reviews of other documents that enabled the expert to “draw general conclusions”). Furthermore, the court has already found that Burns’s conclusions are based on a sufficient quantity of data and range of sources to be admissible under Daubert. See Braggs v. Dunn, 317 F.R.D. at 645-49 (finding that non-random sampling was an accepted and reliable sample merits. method size was among prison sufficient, 12 experts, and that that she Burns’s had other sources of information, such as internal documents). Once a court has found that the expert testimony is based on sufficient data and that the underlying methodology is sound, the strength of conclusions drawn from the expert’s analysis and the weight due to those conclusions is for the finder of fact to decide through the adversarial system. (“The focus solely on [of the Daubert, 509 U.S. at 594–95 Rule principles 702 and inquiry] ... must methodology, not on conclusions that they generate.”). be the To the extent Burns during her trial testimony did not identify a specific prisoner or example for every single observation or conclusion drawn from her interviews, document reviews, and site visits, the court considered those factors in considering the weight of her testimony, rather than its admissibility. The defendants’ second contention is that Burns’s opinion as to the adequacy of individual care does not establish an Eighth Amendment violation. This is not a Daubert objection at all: establishing legal liability 13 is not a requirement under the Daubert analysis. the factfinder’s opinions, in job to evaluate conjunction with all It is competing other expert admissible evidence, to decide whether there has been a violation. In sum, Burns’s testimony was sufficiently reliable to survive a Daubert challenge. B. Eldon Vail The defendants testimony and plaintiffs’ objected expert under report correctional Daubert offered by to the Vail, the administration expert, asserting that he is not “qualified” to testify under Daubert and Federal Rule of Evidence 702 to offer an opinion as to facilities that he did not visit. Defs.’ Opp. to Pls.’ Motion to Certify a Class (doc. no. 810) at 8 n.3. Vail’s expert testimony is admissible. First, as explained in the class-certification opinion with regards to Burns’s testimony, the case law indicates that an expert on prison 14 conditions is not categorically required to visit every single facility in order Braggs to v. offer Dunn, an opinion 317 F.R.D. on at systemic 645-49. issues. How many facilities an expert should visit in order to offer a reliable opinion depends circumstances presented. that he public did not documents analyses, operating meeting monthly Vail ADOC, reviewed including statistical procedures, minutes, the care to facilities.4 internal and vulnerability institutional local transcripts standard policies, of ADOC officials’ Vail Testimony at As with Burns’s analysis of mental-health delivery evidence and reports, depositions, and incident reports. 1-24, 1-65. issues Second, for the facilities visit, of on within support ADOC, his Vail cites conclusions documentary about ADOC In fact, Vail’s overall conclusion--that 4. For that reason, Vail’s testimony is distinguishable from cases the defendants cite where experts connected existing data to the opinion by only the “ipse dixit of the expert,” without other supporting evidence. Hendrix v. Evenflo Co., Inc., 609 F. 3d 1183, 1201 (11th Cir. 2010) (internal quotation and citation omitted). Similarly, Vail’s testimony is 15 ADOC facilities are overall overcrowded and understaffed, with some variances across facilities--is essentially undisputed: ADOC Commissioner Dunn himself called the two problems a “two-headed monster” facing the Department. Dunn Testimony at 2-45. that not Vail was familiar with To the extent the minutiae of everyday operations of the facilities that he did not visit, or the exact magnitude of understaffing at each facility, testimony, such shortfalls rather than go to the admissibility. weight See of his United States v. Ala. Power Co., 730 F.3d 1278, 1288 (11th Cir. 2013) (holding that the availability of a “more distinguishable from another case that the defendants cite, Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F. Supp. 2d 794 (N.D. Ill. 2005). In that case, the trial court excluded an expert’s damages estimate because it was based on the financial performance of a corporation that was not comparable to the plaintiff corporation. Also, there was no evidence derived from the plaintiff corporation or any connection between the comparator corporation and the plaintiff corporation. In contrast, here, Vail based his overall conclusion on his site visits of select facilities, as well as voluminous documentary evidence from the facilities that he did not visit, all of which are operated by the defendants. In other words, these cases are simply not comparable. 16 thorough, more necessarily complex” render a less inadmissible under Daubert). in the Daubert order methodology does precise not methodology The court therefore found that Vail’s testimony was admissible. C. Dr. Raymond Patterson’s Audit Results The plaintiffs challenged as unreliable Patterson’s testimony and his report about an ADOC medical-records audit that he and other defense experts performed. particular, the methodology plaintiffs was argued unreliable, that and, the even In audit if the methodology were sound, the defense experts carried out the audit in an unreliable manner. Based on Patterson’s testimony regarding the methodology and the audit process, the court, with the previously entered Daubert order, found that the audit results were admissible. According to Patterson, he and other defense experts designed the audit tools in May 2016 to measure 17 patients’ access to an appropriate level of care in high-risk and high-volume areas of mental-health care. The resulting audit tools targeted timeliness of care in six areas: mental-health evaluation at intake and after referrals; suicide risk assessments; treatment planning; and three types of side-effect monitoring for psychotropic medications. The spent days facilities three in six defense experts going medical records along with ADOC employees. included the findings in his expert then through Patterson report and testified during the trial regarding the methodology and conclusions that he drew from the audit. Patterson’s established Daubert testimony sufficient challenge. regarding reliability Patterson the to testified methodology overcome that he a has done hundreds of similar audits to evaluate a prison mental-health care system, non-litigation purposes. for both litigation and He explained that, although the audit measured only six high-impact and high-volume areas, it was a part of his systemic evaluation of 18 mental-health care document reviews. within ADOC, complementing his Furthermore, he testified that the audit results are replicable, because another team can verify the data--the audit medical conduct the audit. the audit results if given records--that the his underlying team used to In other words, he attested that methodology is generally accepted in evaluating a health-care system and can be tested and replicated, both of which are indicia of reliability under Daubert. The plaintiffs, during their cross examination of Patterson, appropriately raised issues regarding the limited nature of the audits and what the results do not show. For example, the audit results, as Patterson conceded, do not show what providers did in response to side-effect monitoring test results. Furthermore, in some cases, the audit results were inconclusive because of the limited certain facility. type number of of patients side-effect who monitoring required in a that However, these shortfalls of a study are 19 “more appropriately considered an objection going to the weight of the evidence rather than its admissibility.” Rosenfeld v. Oceania Cruises, Inc., 654 1190, 1193-94 and citation F.3d quotation (11th Cir. omitted) 2011) (internal (allowing expert testimony based on methods that the opponent challenged as “imprecise and unspecific,” because the criticisms of the study admissibility). go to the weight, rather than In other words, these inadequacies in the audit methodology were appropriately addressed by the adversarial presentation precluding of the system of contrary related cross-examination evidence, expert rather testimony and than from by being presented during the trial. As for plaintiffs the implementation contended that the of the audit audit, tools the changed throughout the process, and that the audit process did not sufficiently safeguard against irregularities in pulling audit samples or ensure that the audit data entries accurately reflected 20 the underlying data. However, as with the limitations of the audit results discussed above, these limitations or shortfalls in the audit process go to the weight of the audit results, rather than admissibility, since Daubert requires the methodology to be only “sufficiently reliable” and “not without foundation,” persuasive. rather than faultless or even Maiz v. Virani, 253 F.3d 641, 665-66 (11th Cir. 2001); see also Quiet Tech. DC–8, Inc., 326 F.3d at 1341 (“[I]t is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence” under Daubert). Indeed, the plaintiffs were able to point out errors on the audit forms and results raise during doubts the about cross the accuracy examination of of audit Patterson. Therefore, with the previously entered Daubert order, the court found that the audit-implementation issues raised by through excluding the the the plaintiffs adversarial results were system, from 21 properly rather consideration addressed than by by the factfinder, and that Patterson’s testimony regarding the audit results was admissible. D. Robert Ayers The plaintiffs initially challenged defense expert Ayers’s methodology under Daubert, arguing that relying primarily opinion on interviews about unreliable. the with quality of staff to formulate mental-health care an is See Pls.’ Opposition to Defs.’ Motion for Summary Judgment (doc. no. 888) at 250-64. In their post-trial brief, however, the plaintiffs conceded that their objection should be overruled. Given that Ayers’s methodology--site visits, document review, and staff interviews--did not deviate significantly from the methodology employed by other experts in this case whose methodology was found reliable, the court, with the previously Ayers’s court entered methodology further found was that Daubert order, sufficiently the limited found that reliable. The nature his of supporting data and his testimony that he did not have 22 sufficient time to investigate certain issues bore on only the weight admissibility. of his expert Therefore, opinion, the rather plaintiffs’ than initial objection against Ayers’s methodology was overruled in the Daubert order. * * * For the foregoing reasons, the court in its order of June 27, 2017 (doc. no. 1284) denied the plaintiffs’ motion to Patterson’s defendants’ exclude Ayers’s testimony motions to testimony (doc. no. exclude and 888) Burns portions and and of the Vail’s testimony (doc. nos. 807 & 810). DONE, this the 13th day of July, 2017. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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