Dunn et al v. Thomas et al

Filing 3267

ORDER: For the foregoing reasons, and based on both parties' agreement to this resolution of the issues raised by the dfts' 3250 objections, it is ORDERED that the objections are overruled, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 6/7/2021. (wcl, )

Case 2:14-cv-00601-MHT-JTA Document 3267 Filed 06/07/21 Page 1 of 6

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.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

ORDER
In this longstanding litigation about the provision
of mental-health care in the prisons of the Alabama
Department of Corrections (ADOC), the court is currently
engaged in a series of hearings to develop “a final remedy
that addresses the serious constitutional violations it
has found and that will be a durable solution for the
monitors to help ADOC implement.”

Opinion and Order on

a Process for Finalizing the Phase 2A Remedial Orders,
No. 2:14cv601-MHT, 2020 WL 7711366, at *8 (M.D. Ala. Dec.
29, 2020) (Thompson, J.).

The defendants have objected

Case 2:14-cv-00601-MHT-JTA Document 3267 Filed 06/07/21 Page 2 of 6

to certain exhibits introduced by the plaintiffs during
the

first

week

of

these

hearings.

See

Defendants’

Objections to Plaintiffs’ Exhibits (Doc. 3250).

For the

reasons below, and based on the agreement of all parties
on the record to the court’s resolution outlined in this
order, the objections are overruled.
It appears to the court that the defendants raised
two distinct kinds of objections to the exhibits offered
by

the

plaintiffs.

The

first

was

an

objection

to

plaintiffs’ expert Eldon Vail relying on large sets of
similar

documents

to

support

opinions

about

those

documents in the aggregate, without discussing each of
the underlying documents individually.

An example of

this would be instances when Vail walked through a log
of segregation rounds on a particular day and showed how
he determined whether the rounds were done appropriately
on that day, and then testified that he looked at, for
example, several hundred other logs of segregation rounds
from

different

days

and

different

2

units

to

develop

Case 2:14-cv-00601-MHT-JTA Document 3267 Filed 06/07/21 Page 3 of 6

opinions

about

how

regularly

these

rounds

were

done

across the board.
For this first kind of testimony, the court noticed
that Vail, in most if not all cases, walked through a
sample document from the set of documents submitted to
show his work for each of the opinions he testified about.
In the court’s experience, this is a common process when
experts

testify

about

opinions

that

are

based

on

reviewing a large set of similar documents: The experts
may testify to that opinion, show how they came to the
opinion by discussing a sample of the documents they
reviewed, and reference the set of similar documents they
looked at to explain their sources.

On cross, defense

counsel may then clarify, if needed, the documents that
the expert relied upon, and counsel may also challenge
whether those documents in fact support the conclusions
reached by the expert.

Expert testimony in this case has

historically been handled in this way too.
During the hearing, defendants did not point to any
specific

examples

where

Vail
3

did

not

ultimately,

on

Case 2:14-cv-00601-MHT-JTA Document 3267 Filed 06/07/21 Page 4 of 6

direct and cross, make clear the documents he relied upon
as his source.
therefore,

As to this first kind of objection,

absent

the

defendants’

pointing

to

any

instance in which Vail didn’t show his work in that way,
the court believes that it was appropriate for him to
testify about these documents in the aggregate without
showing

each

documents.
opportunity

one

of

The

court

after

it

the

essentially

granted
raised

duplicative

the

defendants

an

these

objections

to

cross-examine Vail further to discuss any such instance,
and the defendants declined to do so.

The objections to

this first kind of exhibit are overruled on that basis.
It appears to the court that the defendants are also
objecting to times when a single, large document has been
offered, but the experts testifying about that document
have referenced only a few pages from the document and
discussed their opinions about what those pages show.
For instance, an inmate’s entire institutional file might
be introduced into evidence, but Vail may have testified
about only a few of the incidents mentioned in that file.
4

Case 2:14-cv-00601-MHT-JTA Document 3267 Filed 06/07/21 Page 5 of 6

To address the defendants’ concerns about this kind of
evidence, the court assured the defendants that it has
no

intention

of

digging

through

those

files

for

information that was not discussed in court and to which
the defendants therefore has not had reason to respond.
As the court said yesterday, this is fundamentally an
issue of fairness, and the court will not be unfair to
the defendants.
That said, this fairness principle cuts both ways.
If the defendants wish to discuss other parts of these
large documents or to press an expert about the parts of
such documents they say they have relied on in reaching
their opinions in order to show that the documents do not
support these opinions, the opportunity to do so is on
cross-examination, not by subsequent objection to the
testimony or to the underlying documents.

Again, the

court therefore provided the defendants an opportunity
for further cross-examination regarding the documents to
which they objected to allow the defendants to bring in
other

parts

of

those

documents
5

or

challenge

Vail’s

Case 2:14-cv-00601-MHT-JTA Document 3267 Filed 06/07/21 Page 6 of 6

opinions based on those documents, and the defendants
declined to do so.
For the foregoing reasons, and based on both parties’
agreement to this resolution of the issues raised by the
defendants’ objections (Doc. 3250), it is ORDERED that
the objections are overruled.
DONE, this the 7th day of June, 2021.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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