Cunningham v. Arizona, State of et al

Filing 57

IT IS ORDERED DENYING defendants' motion to exclude testimony of Richard Payne 38 . IT IS FURTHER ORDERED GRANTING IN PART defendants' motion to exclude testimony of Henry Dlugacz 39 . IT IS FURTHER ORDERED GRANTING defendants' motion to exclude testimony of Raymond Patterson 40 . (See attached PDF for details). Signed by Senior Judge Frederick J Martone on 7/1/13.(JAMA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Saundra L. Cunningham,

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Plaintiff,
vs.

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State of Arizona, et al.,
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Defendants.
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No. CV 12-00313-PHX-FJM
ORDER

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The court has before it defendants’ motion to exclude testimony of Richard Payne

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(doc. 38), plaintiff’s response (doc. 48), defendants’ reply (doc. 49), defendants’ motion to

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exclude testimony of Henry Dlugacz (doc. 39), plaintiff’s response (doc. 46), defendants’

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reply (doc. 51), defendants’ motion to exclude testimony of Raymond Patterson (doc. 40),

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plaintiff’s response (doc. 47), and defendant’s reply (doc. 50).1

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Plaintiff filed this action in the Superior Court of Arizona in Maricopa County on

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September 29, 2011, alleging that her son, Duron Cunningham, committed suicide while

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incarcerated in the Arizona State Prison in Florence because defendants acted negligently and

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with deliberate indifference. Defendants timely removed the action to this court. Our Rule

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Defendants’ motions and replies, and plaintiff’s responses exceed this court’s twopage limit on discovery motions, responses and replies.

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16 Scheduling Order set plaintiff’s expert disclosure deadline as November 2, 2012,

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defendants’ expert disclosure deadline as December 7, 2012, and the rebuttal expert deadline

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for both parties as January 11, 2013. See Doc. 9 at 2. The parties were required to finally

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supplement all discovery related to the expert opinions on or before February 8, 2013. Id.

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The final discovery deadline was April 26, 2013. Id. at 3. On October 17, 2012, the parties

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jointly moved to extend the expert disclosure deadlines by 30 days because of a delay in

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deposing witnesses (doc. 19). We denied that motion because the parties did not show any

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diligence in obtaining the depositions during the six month period provided for in the Rule

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16 Scheduling Order. On November 2, 2012, plaintiff disclosed Dr. Richard Payne

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(“Payne”) and Henry Dlugacz (“Dlugacz”) as expert witnesses. Plaintiff disclosed Dr.

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Raymond Patterson (“Patterson”) as a rebuttal expert on January 11, 2013. Defendants move

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to exclude the experts’ testimony.
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Defendants move to exclude the opinions Payne expressed in a letter dated April 22,

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2013 because it was disclosed eleven days after the close of discovery. Plaintiff argues that

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good cause exists to allow Payne's supplemental opinion into evidence because due to his

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workload the letter was not ready for disclosure until after the discovery cut-off date. An

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expert’s workload is not good cause for delayed disclosure. However, defendants have not

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claimed prejudice. Accordingly, we deny defendants’ motion to exclude Payne’s testimony

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(doc. 38).

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II

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Next, defendants move to exclude Dlugacz’s opinion that defendants were negligent

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in their duty to protect Duron Cunningham (“Cunningham”) from a foreseeable suicide.

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Defendants argue that Dlugacz is not qualified to testify regarding the psychological and

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psychiatric care delivered to Cunningham because he is not a psychologist, psychotherapist

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or psychiatrist. In Arizona, the standard of care for medical personnel can be proven only

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by expert witness testimony unless, “the negligence is so grossly apparent that a layman

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could recognize it without difficulty.” Coolidge v. U.S., 2000 WL 300940, 3 (9th Cir. 2000)
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(citation omitted). To qualify an expert to express an opinion on what the standard of care

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is for the defendant medical personnel, plaintiff must show that the expert has “more than a

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casual familiarity with the specialty of the defendant physician.” Gaston v. Hunter, 121 Ariz.

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33, 53, 588 P.2d 326, 346 (Ct. App.1978). Here, plaintiff has not shown that Dlugacz

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qualifies to offer standard of care opinions with respect to the psychiatrists and

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psychologists’ delivery of mental healthcare. Therefore, Dlugacz may not testify regarding

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the reasonableness of the psychiatric and psychological care or medication administered to

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Cunningham. Dlugacz may, however, testify about services provided to Cunningham by any

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social worker or other similarly qualified person.

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Plaintiff asserts that Dlugacz's opinions concern whether the process, manner, and

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mental health services afforded to Cunningham were in compliance with national standards.

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Defendants argue that Dlugacz is not qualified to render such opinions because he has not

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reviewed the policies and procedures of the Arizona Department of Corrections. An expert

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is not permitted to give an opinion simply based on his “subjective belief or unsupported

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speculation.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 2795, 125

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L.Ed.2d 469 (1993). Dlugacz may testify as to whether he believes defendants’ actions were

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reasonable based on objective national standards for correctional mental health services, but

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any testimony that is based on nothing more than his personal views will be excluded.

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III

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Defendants argue that Patterson's testimony should be excluded entirely because he

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is a case-in-chief expert who should have been disclosed by the initial expert disclosure

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deadline. Plaintiff counters that Patterson was retained to rebut defendants’ expert’s medical

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standard of care opinions, and therefore he was timely disclosed at the rebuttal expert

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deadline.

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The issue is whether Patterson’s report “is intended solely to contradict or rebut

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evidence on the same subject matter identified by [defendants’ expert].” Fed. R. Civ. P.

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26(a)(2)(D)(ii). Patterson's opinion is that defendants "acted negligently by failing to take

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reasonable steps to provide the appropriate standard of care to protect Duron Cunningham

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from what appears to have been a foreseeable and preventable suicide." Doc. 40, Ex. 1.

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Although Patterson’s opinion is contrary to the opinion offered by defendants’ expert, his

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report does not directly address that opinion or indicate that he reviewed it in preparation for

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his report. We agree with defendants that Patterson’s opinion merely echoes Dlugacz’s

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opinion.

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because, unlike Dlugacz, he is a licensed physician who specializes in psychiatry. Rebuttal

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designations and disclosures are not intended to provide a party with the opportunity to select

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an expert with more appealing qualifications, to present the same opinions provided by their

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initial experts. Because Patterson’s report is not intended solely to contradict defendants’

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expert’s opinion, it is not proper rebuttal, and was untimely disclosed. Accordingly, we grant

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defendants’ motion to exclude Patterson’s testimony.

It appears that plaintiff decided to offer Patterson as a rebuttal expert solely

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IV
IT IS ORDERED DENYING defendants’ motion to exclude testimony of Richard
Payne (doc. 38).

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IT IS FURTHER ORDERED GRANTING IN PART defendants’ motion to

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exclude testimony of Henry Dlugacz (doc. 39). Henry Dlugacz may not testify regarding the

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reasonableness of the psychiatric and psychological care or medication administered to

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Duron Cunningham. He may only testify about the services and delivery of correctional

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mental health provided by social workers or based on objective national standards.

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IT IS FURTHER ORDERED GRANTING defendants’ motion to exclude
testimony of Raymond Patterson (doc. 40).
DATED this 1st day of July, 2013.

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