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, )

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