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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Saundra L. Cunningham, 10 11 Plaintiff, vs. 12 State of Arizona, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-00313-PHX-FJM ORDER 15 16 17 The court has before it defendants’ motion to exclude testimony of Richard Payne 18 (doc. 38), plaintiff’s response (doc. 48), defendants’ reply (doc. 49), defendants’ motion to 19 exclude testimony of Henry Dlugacz (doc. 39), plaintiff’s response (doc. 46), defendants’ 20 reply (doc. 51), defendants’ motion to exclude testimony of Raymond Patterson (doc. 40), 21 plaintiff’s response (doc. 47), and defendant’s reply (doc. 50).1 22 Plaintiff filed this action in the Superior Court of Arizona in Maricopa County on 23 September 29, 2011, alleging that her son, Duron Cunningham, committed suicide while 24 incarcerated in the Arizona State Prison in Florence because defendants acted negligently and 25 with deliberate indifference. Defendants timely removed the action to this court. Our Rule 26 27 1 28 Defendants’ motions and replies, and plaintiff’s responses exceed this court’s twopage limit on discovery motions, responses and replies. 1 16 Scheduling Order set plaintiff’s expert disclosure deadline as November 2, 2012, 2 defendants’ expert disclosure deadline as December 7, 2012, and the rebuttal expert deadline 3 for both parties as January 11, 2013. See Doc. 9 at 2. The parties were required to finally 4 supplement all discovery related to the expert opinions on or before February 8, 2013. Id. 5 The final discovery deadline was April 26, 2013. Id. at 3. On October 17, 2012, the parties 6 jointly moved to extend the expert disclosure deadlines by 30 days because of a delay in 7 deposing witnesses (doc. 19). We denied that motion because the parties did not show any 8 diligence in obtaining the depositions during the six month period provided for in the Rule 9 16 Scheduling Order. On November 2, 2012, plaintiff disclosed Dr. Richard Payne 10 (“Payne”) and Henry Dlugacz (“Dlugacz”) as expert witnesses. Plaintiff disclosed Dr. 11 Raymond Patterson (“Patterson”) as a rebuttal expert on January 11, 2013. Defendants move 12 to exclude the experts’ testimony. I 13 14 Defendants move to exclude the opinions Payne expressed in a letter dated April 22, 15 2013 because it was disclosed eleven days after the close of discovery. Plaintiff argues that 16 good cause exists to allow Payne's supplemental opinion into evidence because due to his 17 workload the letter was not ready for disclosure until after the discovery cut-off date. An 18 expert’s workload is not good cause for delayed disclosure. However, defendants have not 19 claimed prejudice. Accordingly, we deny defendants’ motion to exclude Payne’s testimony 20 (doc. 38). 21 II 22 Next, defendants move to exclude Dlugacz’s opinion that defendants were negligent 23 in their duty to protect Duron Cunningham (“Cunningham”) from a foreseeable suicide. 24 Defendants argue that Dlugacz is not qualified to testify regarding the psychological and 25 psychiatric care delivered to Cunningham because he is not a psychologist, psychotherapist 26 or psychiatrist. In Arizona, the standard of care for medical personnel can be proven only 27 by expert witness testimony unless, “the negligence is so grossly apparent that a layman 28 could recognize it without difficulty.” Coolidge v. U.S., 2000 WL 300940, 3 (9th Cir. 2000) -2- 1 (citation omitted). To qualify an expert to express an opinion on what the standard of care 2 is for the defendant medical personnel, plaintiff must show that the expert has “more than a 3 casual familiarity with the specialty of the defendant physician.” Gaston v. Hunter, 121 Ariz. 4 33, 53, 588 P.2d 326, 346 (Ct. App.1978). Here, plaintiff has not shown that Dlugacz 5 qualifies to offer standard of care opinions with respect to the psychiatrists and 6 psychologists’ delivery of mental healthcare. Therefore, Dlugacz may not testify regarding 7 the reasonableness of the psychiatric and psychological care or medication administered to 8 Cunningham. Dlugacz may, however, testify about services provided to Cunningham by any 9 social worker or other similarly qualified person. 10 Plaintiff asserts that Dlugacz's opinions concern whether the process, manner, and 11 mental health services afforded to Cunningham were in compliance with national standards. 12 Defendants argue that Dlugacz is not qualified to render such opinions because he has not 13 reviewed the policies and procedures of the Arizona Department of Corrections. An expert 14 is not permitted to give an opinion simply based on his “subjective belief or unsupported 15 speculation.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 2795, 125 16 L.Ed.2d 469 (1993). Dlugacz may testify as to whether he believes defendants’ actions were 17 reasonable based on objective national standards for correctional mental health services, but 18 any testimony that is based on nothing more than his personal views will be excluded. 19 III 20 Defendants argue that Patterson's testimony should be excluded entirely because he 21 is a case-in-chief expert who should have been disclosed by the initial expert disclosure 22 deadline. Plaintiff counters that Patterson was retained to rebut defendants’ expert’s medical 23 standard of care opinions, and therefore he was timely disclosed at the rebuttal expert 24 deadline. 25 The issue is whether Patterson’s report “is intended solely to contradict or rebut 26 evidence on the same subject matter identified by [defendants’ expert].” Fed. R. Civ. P. 27 26(a)(2)(D)(ii). Patterson's opinion is that defendants "acted negligently by failing to take 28 -3- 1 reasonable steps to provide the appropriate standard of care to protect Duron Cunningham 2 from what appears to have been a foreseeable and preventable suicide." Doc. 40, Ex. 1. 3 Although Patterson’s opinion is contrary to the opinion offered by defendants’ expert, his 4 report does not directly address that opinion or indicate that he reviewed it in preparation for 5 his report. We agree with defendants that Patterson’s opinion merely echoes Dlugacz’s 6 opinion. 7 because, unlike Dlugacz, he is a licensed physician who specializes in psychiatry. Rebuttal 8 designations and disclosures are not intended to provide a party with the opportunity to select 9 an expert with more appealing qualifications, to present the same opinions provided by their 10 initial experts. Because Patterson’s report is not intended solely to contradict defendants’ 11 expert’s opinion, it is not proper rebuttal, and was untimely disclosed. Accordingly, we grant 12 defendants’ motion to exclude Patterson’s testimony. It appears that plaintiff decided to offer Patterson as a rebuttal expert solely 13 14 15 IV IT IS ORDERED DENYING defendants’ motion to exclude testimony of Richard Payne (doc. 38). 16 IT IS FURTHER ORDERED GRANTING IN PART defendants’ motion to 17 exclude testimony of Henry Dlugacz (doc. 39). Henry Dlugacz may not testify regarding the 18 reasonableness of the psychiatric and psychological care or medication administered to 19 Duron Cunningham. He may only testify about the services and delivery of correctional 20 mental health provided by social workers or based on objective national standards. 21 22 23 IT IS FURTHER ORDERED GRANTING defendants’ motion to exclude testimony of Raymond Patterson (doc. 40). DATED this 1st day of July, 2013. 24 25 26 27 28 -4-

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