Ferreira et al v. Arpaio et al

Filing 239

ORDER: IT IS ORDERED that the Defendants' Motion to Exclude Plaintiffs' Expert Pablo Stewart, M.D. is DENIED (Doc. 213 ) [see attached Order for details]. Signed by Senior Judge James A Teilborg on 11/16/17.(MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shari Ferreira, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-15-01845-PHX-JAT

Joseph M Arpaio, et al.,

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Defendants.

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Pending before the Court is Defendants’ Motion to Exclude Plaintiffs’ Expert,

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Pablo Stewart, M.D. (Doc. 213), filed on July 31, 2017. Having considered both parties’

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briefs, the Court now rules on the motion.

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I.

BACKGROUND

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The Court need not set forth a full recitation of the facts underlying this matter.

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For purposes of adjudicating Defendants’ pending Motion to Exclude Dr. Stewart, a brief

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recital of the following facts, taken from Plaintiff Shari Ferreira’s Third Amended

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Complaint is sufficient. Plaintiffs brought this civil rights action on behalf of decedent

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Zachary Daughtry in her capacity as personal representative of the estate. (Doc. 12 at 1).

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Daughtry was arrested in December of 2013 and booked into the 4th Avenue Jail

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complex. (Id. at 8). On July 9, 2014, Defendant Ryan Bates was placed in a cell with

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Daughtry. (Id. at 9). Officers passed their cell later that evening to find Bates standing

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over Daughtry, who was unresponsive and laying in a puddle of blood. (Id. at 12).

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Daughtry ultimately passed away from his injuries on July 20, 2014. (Id. at 15).

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On November 21, 2016, Plaintiffs disclosed the report of their psychiatric expert,

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Dr. Pablo Stewart. On February 10, 2017, Defendants responded by filing a Motion to

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Strike Expert Report of Pablo Stewart. (Doc. 149). Defendants argued that Dr. Stewart’s

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findings were conclusory, in addition to being displeased with his incorporation of over

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360 pages of affidavits from another case by reference. Defendants argued that this

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disclosure violated Federal Rule of Civil Procedure (“FRCP”) 26(a)(2)(B). A discovery

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hearing was held on March 22, 2017 in part to discuss Defendants’ Motion to Strike. At

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the hearing, the Court denied Defendants’ Motion to Strike, but gave Plaintiffs an

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opportunity to redo Dr. Stewart’s report. Plaintiffs ultimately refiled Dr. Stewart’s revised

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report on April 7, 2017. Defendants subsequently filed the Motion to Exclude currently at

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issue on July 31, 2017. (Doc. 213). Plaintiffs filed a Response on September 5, 2017,

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(Doc. 224), to which Defendants filed a Reply on September 12, 2017. (Doc. 226).

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II.

LEGAL STANDARDS

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Defendants move to exclude Plaintiffs’ psychiatric expert, Dr. Pablo Stewart.

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Defendants contend that Dr. Stewart must be excluded because his expert report fails to

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comply with FRCP 26 and that his opinions are inadmissible pursuant to Federal Rule of

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Evidence (“FRE”) 702. The Court will discuss each of the standards under these rules in

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turn.

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A.

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FRCP 26 requires that if a party desires to have a witness present expert

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testimony, the party must disclose both the expert and provide a written report outlining

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information about the expert and her testimony. Fed. R. Civ. Pro. 26(a)(2)(A)–(B). The

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Rule requires, in relevant part, that the expert report must include:

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Federal Rule of Civil Procedure 26

(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
them . . . .

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Fed. R. Civ. P. 26(a)(2)(B).

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“Bald conclusions, brief statements of ultimate conclusions with no explanation of

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the basis and reasons therefore, or reports omitting a statement of how the facts support

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the conclusions do not satisfy Rule 26(a)(2)(B).” Izzo v. Wal-Mart Stores, Inc., No. 2:15-

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CV-01142-JAD-NJK, 2016 WL 593532, at *2 (D. Nev. Feb. 11, 2016) (citations

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omitted). Exclusion of expert testimony “is an appropriate remedy for failing to fulfill the

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required disclosure requirements of Rule 26(a).” Yeti by Molly, Ltd. v. Deckers Outdoor

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Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). However, questions related to the factual

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basis of an expert’s testimony go “to the credibility of the testimony, not the

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admissibility, and it is up to the opposing party to examine the factual basis for the

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opinion in cross-examination.” Children’s Broadcasting Corp. v. Walt Disney Co., 357

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F.3d 860, 865 (9th Cir. 2004).

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B.

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In addition to FRCP 26 considerations, when either party attempts to offer expert

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testimony through an expert witness, the Court “must determine whether the expert

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witness is qualified and has specialized knowledge that will assist a trier of fact to

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understand the evidence or to determine a fact in issue.” McKendall v. Crown Control

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Corp., 122 F.3d 803, 805 (9th Cir. 1997) (citing Fed. R. Evid. 702; Daubert v. Merrell

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Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993) (“Daubert I”)). The Court’s

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analysis is made by comparing the proposed expert testimony to the requirements of FRE

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702. FRE 702 provides that:

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Federal Rule of Evidence 702 and Daubert

A witness who is qualified 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 based on sufficient facts or data;
c. the testimony is the product of reliable principles and
methods; and
d. the expert has reliably applied the principles and methods
to the facts of the case.
Fed. R. Evid. 702.

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The United States Supreme Court and the Ninth Circuit Court of Appeals have

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issued opinions interpreting FRE 702 that will help guide this Court’s analysis. See

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Daubert I; see also Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311 (9th Cir.

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1995) (“Daubert II”). According to Daubert I, the Court has broad discretionary powers

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in determining whether a proposed expert is qualified under Rule 702 by “knowledge,

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skill, experience, training or education.” Daubert I at 591; see also Daubert II at 1315.

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The Court must also decide whether the proposed subject matter of the expert opinion

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correctly concerns “scientific, technical, or other specialized knowledge” under Rule 702.

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McKendall, 122 F.3d at 806. Finally, the Court must ascertain “whether the testimony is

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helpful to the trier of fact, i.e., whether it rests on a reliable foundation and is relevant to

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the facts of the case.” Id. (citing Bogosian v. Mercedes-Benz of North America, Inc., 104

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F.3d 472, 476 (1st Cir. 1997); Fed. R. Evid. 702).

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The Supreme Court charged district courts with acting as “gatekeepers” to ensure

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that all scientific testimony and evidence admitted is both relevant and reliable. Hall v.

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Baxter Healthcare Corp., 947 F. Supp. 1387, 1396 (D. Or. 1996). The task before this

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Court, then, is two-pronged. First, the Court must ensure that the proposed testimony

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exemplifies “scientific knowledge,” constitutes “good science,” and was “derived by the

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scientific method.” Id. (citing Daubert II, 43 F.3d at 1316). Second, the Court must

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ensure that the testimony is “relevant to the task at hand” in that it “logically advances a

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material aspect of the proposing party’s case.” Daubert II, 43 F.3d at 1315 (quoting

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Daubert I, 509 U.S. at 597).

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1.

Reliability

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Both Daubert I and Daubert II list factors that the courts can use in deciding the

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first prong, whether the expert testimony is scientifically valid and reliable.

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Hall, 947 F. Supp. at 1396. These factors include:

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1. Whether the theory or technique employed by the expert is
generally accepted in the scientific community;
2. Whether the theory has been subjected to peer review and
publication;

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3. Whether the theory can be and has been tested;
4. Whether the known or potential rate of error is acceptable;
and
5. Whether the experts are proposing to testify about matters
growing naturally or directly out of research, or whether
they have developed their opinions expressly for purposes
of testifying.

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Id.

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43 F.3d at 1316–17 (adding fifth factor).

(citing

Daubert I,

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U.S.

at

593–94 (first

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factors)); Daubert II,

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The list is illustrative, not exhaustive. Daubert II, 43 F.3d at 1317. In Kumho Tire

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v. Carmichael, the Supreme Court recognized that all expert theories may not fit neatly

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into the five factors carved out in Daubert I and Daubert II, and as such the test for

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reliability must be “flexible.” 526 U.S. 137, 141 (1999). This is especially the case when

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the expert is testifying to “technical” or “other specialized knowledge” as opposed to

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scientific testimony. Id. at 148 (citing Fed. R. Evid. 702). As such, the Court may

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consider the five factors previously mentioned, but ultimately it must determine whether

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the testimony has “a reliable basis in the knowledge and experience of the relevant

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discipline.” Id. at 149 (citing Daubert I at 592).

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2.

Relevance and Fit

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In addition to analyzing the reliability of the expert’s testimony, the Court has a

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duty to ensure that the testimony is “relevant to the task at hand” in that it “logically

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advances a material aspect of the proposing party’s case.” Daubert II, 43 F.3d at 1315

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(quoting Daubert I, 509 U.S. at 597). Put another way, an expert’s testimony must be

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“facially helpful and relevant” in assisting the trier of fact evaluate the evidence.

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McKendall, 122 F.3d at 807 (citing Compton v. Subaru of America, Inc., 82 F.3d 1513,

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1515 (10th Cir. 1996). Once again, the Court must exclude the testimony if it does not

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“fit” the matters at issue in the case. Daubert I, 509 U.S. at 591.

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III.

ANALYSIS

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As mentioned previously, Defendants move to exclude Plaintiffs’ expert Dr.

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Stewart under both FRCP 26, FRE 702 and Daubert. The Court will address each

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argument in turn.

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A.

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Defendants’ challenge to Dr. Stewart under FRCP 26 is two-fold. First,

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Defendants challenge whether Dr. Stewart’s report complies with FRCP 26(a)(2)(B)(i),

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which requires his report provide the “basis and reasons” for his opinions. Fed. R. Civ.

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Pro. 26(a)(2)(B)(i) (requiring that an expert’s report must contain “a complete statement

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of all opinions the witness will express and the basis and reasons for them.”). Secondly,

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Defendants argue that in Dr. Stewart’s revised report, he improperly included portions of

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affidavits from a past case he worked on, the Graves case. See Graves v. Arpaio, No. CV-

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77-00479-PHX-NVW, 2014 U.S. Dist. LEXIS 177494 (D. Ariz. Sept. 30, 2014) vacated

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in part, No. CV-77-00479-PHX-NVW, 2014 WL 6983316 (D. Ariz. Dec. 10, 2014).

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Defendants argue that these inclusions are improper incorporations by reference, and that

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in any event Dr. Stewart has failed to explain how the affidavits relate to this case. (Doc.

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213 at 2–4).

Federal Rule of Civil Procedure 26

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Plaintiffs respond by pointing to the various sections of Dr. Stewart’s 154-page

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report. (Doc. 224 at 2–3). Included in Dr. Stewart’s report are his credentials, a list of

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documents that he reviewed in preparation for giving his opinion, a timeline of the

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notable events of the case, and Dr. Stewart’s own opinions related to the case, among

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other things. (Id.) Plaintiffs ultimately argue that Dr. Stewart’s credibility and the

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information he reviewed is beyond reproach and that challenges related to the weight of

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the evidence are reserved for the jury. (Id. at 3).

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In his report, Dr. Stewart clearly lists over 460 documents that he relied on to form

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his opinions. (Doc. 213-2 at 11–33). This list provides the basis for the facts that underlie

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Dr. Stewart’s opinions. From these facts, Dr. Stewart relied on his experience in

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correctional mental health and his review of the record to make conclusions about the

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case. These conclusions are outlined in the report. (Id. at 139–54). Dr. Stewart often

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spends many paragraphs explaining the facts that he relied on to reach a conclusion. (Id.).

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His analysis is thorough enough to avoid being classified as a “bald conclusion” or “brief

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statements of ultimate conclusions with no explanation.” Izzo, 2016 WL 593532, at *2.

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This Court is content that, at a minimum, Dr. Stewart’s report includes the basis and

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reasons for his opinions.

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As previously mentioned, Dr. Stewart’s opinions are informed by his experience

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in the field of correctional mental health. Part of his experience was acquired during his

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work on the Graves case, affidavits from which are cited in his report. While Defendant

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objects to the inclusion of the Graves affidavits as irrelevant, Dr. Stewart has included

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commentary in his report that discusses the links between the two cases. It is undoubtedly

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true that the case at issue is Ferreira v. Penzone and not Graves v. Penzone. However,

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conclusions about certain conditions in the Maricopa County Jail that Dr. Stewart

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formulated during his work in Graves are not out-of-bounds simply because he came

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upon them in another matter. After reviewing the record of the current case, it appears

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that Dr. Stewart came to many similar conclusions that he arrived at in Graves.

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Ultimately, it is for the trier of fact to determine the weight (if any) to give Dr. Stewart’s

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opinion.

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While the report survives because it complies with Rule 26(a)(2)(B)(i), it is not a

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model of form. The Rule does not require the report to be well organized, convenient for

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the Court or opposing counsel, or that it be user friendly. The Court has already warned

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counsel that time spent locating items in the report will count against counsel’s allotted

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trial time. That said, the motion to exclude for failure to comply with Rule 26 is denied.

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B.

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Defendants also argue that Dr. Stewart’s opinions are inadmissible under FRE 702

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because: (1) his opinions are not reliable and (2) his opinions are not relevant or helpful

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to a jury. (Doc. 213 at 2). The Court will address each argument in turn.

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Federal Rule of Evidence 702 and Daubert

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Reliability

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Defendants first argue that Dr. Stewart’s testimony is unreliable because it is

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“based on subjective beliefs or unsupported speculation.” (Doc. 213 at 5). Defendants

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also argue that Dr. Stewart’s testimony is unsupported by scientific methodology or

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learned treatises necessary for his opinions to be admitted. (Id.). Ultimately, Defendants

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conclude that Dr. Stewart is simply an advocate for Plaintiff, and not a scientific expert

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whose testimony is admissible. (Id.).

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Plaintiffs reply by emphasizing the flexibility built into the FRE 702 standard,

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especially when evaluating social science experts. (Doc. 224 at 5). Plaintiffs claim that

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courts are free to consider an expert’s personal knowledge and experience in a subject

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area to qualify them as an expert in that area. (Id.). Additionally, Plaintiffs explore some

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of the Advisory Notes behind FRE 702 which suggest that “rejection of expert testimony

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is the exception rather than the rule.” (Id.). Plaintiffs finally claim that Dr. Stewart more

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than adequately laid out the facts upon which he based his conclusions, and that he

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properly evaluated these facts using his knowledge, skill and experience. (Id. at 6–11).

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When evaluating the reliability of an expert’s testimony, the courts in Daubert I

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and Daubert II compiled a list of factors to help guide their analysis. However, Dr.

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Stewart is not a scientific expert, and as such these factors are of little use here. Instead,

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the Court must determine whether Dr. Stewart’s testimony has “a reliable basis in the

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knowledge and experience of [the relevant] discipline.” Daubert I, 509 U.S. at 592.

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As Plaintiffs point out, when evaluating an expert like Dr. Stewart, it is proper for

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the Court to consider Dr. Stewart’s knowledge, skill and experience as applied to his

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conclusions. Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015–16

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(9th Cir. 2004). His experience includes serving the mentally ill as a psychiatrist, working

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with mental health patients in correctional and other institutional contexts, and designing

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and teaching courses in correctional psychiatry at the University of California, San

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Francisco. (Doc. 213-2 at 2–3). Dr. Stewart has significantly more than the “minimal

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foundation of knowledge, skill and experience,” that “suffices” to cross the threshold of

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expert qualification. Heston v. City of Salinas, No. C 05-03658 JW, 2007 WL 4754777,

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at *2 (N.D. Cal. Mar. 30, 2007) (citing Hangarter, 373 F.3d at 1015–16).

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Dr. Stewart’s experience and training qualifies him as long as the facts he relied

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on exist. Guidroz-Brault v. Missouri Pacific Railroad Co., 254 F.3d 825 (9th Cir. 2001).

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Based on a thorough review of the record and Dr. Stewart’s report, the Court finds that

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Dr. Stewart’s conclusions and report are based on sufficient facts so as to be found

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reliable, passing the first prong of FRE 702.

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2.

Relevance and Fit

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Defendants argue that Dr. Stewart’s opinions are also inadmissible because they

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are irrelevant to the case at hand. According to Defendants, the present case is “a failure

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to protect case based upon the cell assignment of detainees Bates and Daughtry. This is

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not a case about the adequacy of either inmates’ mental health treatment.” (Doc. 213 at

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6). Accordingly, Defendants contend, Dr. Stewart’s opinions about Bates’ and

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Daughtry’s treatment and mental health is irrelevant to the issue at hand.

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Plaintiffs disagree, arguing that Dr. Stewart’s opinions are relevant because they

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relate to standard-of-care and causation issues. (Doc. 224 at 13). Plaintiffs argue that Dr.

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Stewart’s opinions related to both detainees’ mental health and the propriety of placing

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them together are critically relevant to their case. (Id. at 13–15).

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Although Defendants may disagree with the veracity or weight of Dr. Stewart’s

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opinions, his opinions are relevant to causation and psychiatric standard-of-care. For

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example, Dr. Stewart states his opinion that Daughtry should have been in psych housing

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as opposed to maximum security. (Doc. 213-2 at 142). This opinion alone is relevant to

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issues of causation, and should not be kept from the jury on grounds of relevance.

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“Challenges that go to the weight of the evidence are within the providence of a fact

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finder, not a trial court judge.” City of Pomona v. SQM North American Corp., 750 F.3d

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1036, 1044 (9th Cir. 2014). Considering Dr. Stewart’s report contains other opinions

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relevant to causation and standard-of-care, the Court finds the Dr. Stewart passes the

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second prong of FRE 702.

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C.

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Finally, Defendants question Dr. Stewart’s professional qualifications. Defendants

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assert that Dr. Stewart is not a correctional expert and that he has no clinical experience

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in jail or prison. (Doc. 213 at 6). Defendants also claim that Dr. Stewart is not a board-

Qualifications

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certified forensic psychiatrist, and that he does not have the specialized knowledge

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required to provide an expert opinion. (Id. at 7). As such, even if his testimony is

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otherwise reliable and relevant, Defendants argue that Dr. Stewart is not qualified to give

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it.

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Plaintiffs reply by pointing to the many qualifications that Dr. Stewart has listed in

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his expert report. Plaintiffs refer to Dr. Stewart’s “extensive clinical, research, and

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academic experience in the diagnosis, treatment, and prevention of mental illnesses in

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correctional contexts.” (Doc. 224 at 15 (citations omitted)). Plaintiffs give examples of

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Dr. Stewart’s experience, including his designing and teaching courses on correctional

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psychiatry and his administrative and clinical experience with jailed and hospitalized

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inmates in San Francisco. (Id. at 8-9). Ultimately, Plaintiffs suggest that “Dr. Stewart is

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qualified to state the psychiatric correctional related opinions he has stated.” (Id. at 16).

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This Court agrees. Dr. Stewart is a Psychiatrist with a broad background working

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with mental health patients, especially in correctional and institutional settings. Even

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more specifically, he has specialized in the “needs of severely mentally ill individuals in

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sheltered treatment programs in institutional contexts, such as the Mental Health Unit . . .

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currently operating in the Maricopa County Jail.” (Doc. 213-2 at 3). In addition to his

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experiential credentials, Dr. Stewart has also written a multitude of papers and essays that

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have been published in professional and peer-reviewed journals, many on topics directly

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relevant to this case.1 Dr. Stewart’s academic qualifications, in addition to his over thirty

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years of experience working as a psychiatrist in institutional and correctional settings,

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demonstrates to the Court that Dr. Stewart possesses the requisite credentials to testify as

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an expert to his psychiatric, correctional-related opinions in this case.2

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Some particularly relevant examples include: “Mental Health Aspects of
Diminished Capacity and Competency” (2007); “Classification of High risk and Special
Management Prisoners, A National Assessment of Current Practices” (2004); “The
Assessment, Diagnosis, and Treatment of the Patient with Multiple Disorders” (2001);
“Psychiatric Assessment in the Criminal Justice Setting, Learning to Detect Malingering”
(1999); “Mental Illness and Drug Abuse” (1999); and “Assessment and Treatment of the
High Risk Offender” (1999). (Doc. 213-2 at 6-7).
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Defendants’ argument that Dr. Stewart is not qualified to give his opinions
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IV.

CONCLUSION

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Accordingly, the Court finds Dr. Stewart to be qualified to testify to the opinions

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in his expert report under FRE 702 and Daubert. Additionally, his expert report meets the

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requirements of FRCP 26.

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Based on the foregoing,

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IT IS ORDERED that the Defendants’ Motion to Exclude Plaintiffs’ Expert

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Pablo Stewart, M.D. is DENIED.
Dated this 16th day of November, 2017.

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because he is not a board-certified forensic psychiatrist is misplaced. That is not the
standard here. The “threshold for qualification is low, a minimal foundation of
knowledge, skill, and experience suffices.” Heston, 2007 WL 4754777, at *2. These
types of challenges are better reserved for cross-examination, as any “lack of
particularized expertise goes to the weight” of the testimony, “not to the admissibility . . .
as an expert.” United States v. Garcia, 7 F.3d 885, 890 (9th Cir. 1993).
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