Ulibarri et al v. Denver, Colorado, The City and County of et al

Filing 331

ORDER granting in part and denying in part 246 Defendant's Fed.R.Evid. 702 Motion to Strike Expert Witnesses. By Judge Walker D. Miller on 6/28/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
SENIOR JUDGE WALKER D. MILLER
Civil Action No. 07-cv-01814-WDM-MJW
DEBBIE ULIBARRI;
ESTATE OF SHAWN FRANCISCO VIGIL;
COLORADO CROSS-DISABILITY COALITION, a Colorado corporation;
COLORADO ASSOCIATION OF THE DEAF, a Colorado corporation;
ROGER KREBS; and
SARAH BURKE,
Plaintiffs,
v.
CITY & COUNTY OF DENVER,
Defendant.

ORDER ON MOTION TO EXCLUDE EXPERT WITNESS OPINIONS
Miller, J.
This case is before me on the Fed.R.Evid. 702 Motion to Strike Expert Witnesses
(ECF No. 246) filed by Defendant City and County of Denver (“Denver”). Plaintiffs oppose
the motion. A hearing was held on the motion on April 19, 20, and 21, 2011, where
testimony and exhibits were received into evidence. Pursuant to my order, the parties
submitted supplemental briefing on specific issues and post-hearing briefs.

I have

reviewed the arguments, evidence, and authorities provided at the hearing and in the
written briefs. For the reasons set forth below, the motion will be granted in part and
denied in part.
Background
This is a disability rights case concerning the arrest and detention of several deaf

individuals by the members of Denver's Police and Sheriff Departments and the practices
of those entities with respect to persons with disabilities. The persons arrested and
detained are Shawn Vigil, who committed suicide while at the Denver County Jail (“Jail”)
and is represented here by his Estate, Plaintiff Roger Krebs, and Plaintiff Sarah Burke.
Plaintiff Debbie Ulibarri is the mother of Mr. Vigil. Plaintiffs Colorado Cross-Disability
Coalition and Colorado Association of the Deaf assert claims seeking injunctive and other
equitable relief. The only remaining Defendant at this time is the Denver. Following my
ruling (ECF No. 265) on various motions, including motions for summary judgment, the
following claims remain pending:
*

ADA/Rehabilitation Act claim by the Estate related to Vigil’s detention and
death (Claims One and Two);1

*

ADA/Rehabilitation Act claim by Krebs related to his detention (specifically
to the manner of conducting his arraignment) (Claims One and Two);

*

ADA/Rehabilitation Act claims by Burke related to her arrest and release from
detention (Claims One and Two);

*

ADA Rehabilitation Act claims for injunctive relief by the organizational
plaintiffs, CCDC and CAD (Claims One and Two);

*

the Estate’s and Ulibarri’s negligence and negligent failure to train/supervise
claims related to Vigil’s detention and suicide (Claims Seven and Nine); and

*

Ulibarri’s claim for wrongful death (Claim Eight).

Second Amended Complaint (ECF No. 48).
1

Claims related to Vigil’s arrest and intake at the Pre-arraignment Detention
Facility (“PADF”) were dismissed as barred by the statute of limitations.
2

Denver has moved to exclude the proposed testimony of three experts designated
by the Plaintiffs:
*

Mark Pogrebin, Ph.D., designated as an expert on jail policies and
procedures.

*

Jean Andrews, Ph.D., designated as an expert on the deaf and their
communication.

*

Linda Edwards, RN, MHS, CDE, designated as an expert to testify regarding
diabetes and standards of medical care as related to the treatment of plaintiff
Burke.

At the hearing, Denver withdrew its objection to Ms. Edwards with respect to at least
some of the issues raised in its motion, but in its post-hearing brief maintains that Ms.
Edwards opinions should be excluded on relevance grounds. See Denver’s Post-Hearing
Brief Regarding Rule 702 Mot., ECF No. 314, at n. 1. Relevance issues are better
addressed in their full context at trial and I decline to rule on an in limine basis.
At the three-day hearing, Dr. Andrews and Dr. Pogrebin testified and were crossexamined by Denver’s counsel. Denver also offered a rebuttal witness, Gary L. Wilson, the
Director of Corrections and Undersheriff at the Denver Sheriff Department. Following
receipt of testimony and other evidence at the hearing regarding the qualifications of Dr.
Pogrebin and Dr. Andrews and their proposed opinions, I ruled in part on the issues. To
restate my oral ruling with respect to Dr. Andrews, I determined that she possessed
specialized knowledge concerning communications between the deaf and the hearing to
be qualified as an expert in order to opine on the topic. Tr., April 21, 2011, at 115-116.
This expertise included the psychological impact on the deaf. However, I would sustain
objections to any specific opinion as to the cause of Mr. Vigil’s suicide. Id. at 116. As to

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Dr. Pogrebin, I held that he was qualified to render an opinion regarding “the administration
and operation and management of the jail.” Id. at 126. I also held that he could testify
about the mental health impact of jail on a person in custody, but not precisely as to Vigil.
Id. at 127.
Standard of Review
Fed.R.Evid. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
This Rule assigns to the court “the task of ensuring that an expert’s testimony both
rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 597 (1993). Under Daubert, a trial court faced with a proffer
of expert testimony
must determine at the outset, pursuant to Rule 104(a), whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the trier of
fact to understand or determine a fact in issue. This entails a preliminary
assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.
509 U.S. at 592-93.
This “gatekeeping” function applies to all expert testimony proffered under Rule 702.
Kumho Tire Co., Ltd. v. Carmichael, 516 U.S. 137, 149 (1999) (extending Daubert’s holding
on scientific expert testimony to all expert testimony). The objective of the function “is to
ensure the reliability and relevancy of expert testimony. It is to make certain that an expert,

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whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.” Id. at 152.
Although I am required to engage in this gatekeeping function, how I perform the
function is within my discretion. Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1119 (10th Cir.
2004) (quoting Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003)). To fulfill my
obligations, I must “make specific factual findings on the record which are sufficient for an
appellate court to review [my] conclusion concerning whether the testimony was
scientifically reliable and factually relevant.” Id.
Daubert’s gatekeeping function has been distilled into two inquiries: (1) whether the
expert’s proffered testimony has “a reliable basis in the knowledge and experience” of the
expert’s discipline and (2) whether the proposed testimony or evidence “is sufficiently
‘relevant to the task at hand.’” Id. at 1120, 1121 (quoting Daubert, 409 U.S. at 592, 597).
With regard to the first question, Daubert sets forth four factors to provide guidance
in determining the reliability of the expert opinion:
(1) whether a theory has been or can be tested or falsified, (2) whether the
theory or technique has been subject to peer review and publication, (3)
whether there are known or potential rates of error with regard to specific
techniques, and (4) whether the theory or approach has “general
acceptance.”
Id. at 1120 (quoting Daubert, 509 U.S. at 593-94). These factors are not exclusive and
should be applied as relevant to the particular case at hand. Kumho, 526 U.S. at 152-53.
See also Daubert, 509 U.S. at 591 (the theory must “fit” the facts of the case, i.e., be
relevant). I have “considerable leeway” in determining how to test an expert’s reliability.
Kumho, 526 U.S. at 152.
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Discussion
1.

Mark Pogrebin, Ph.D.
Dr. Pogrebin has been qualified as an expert in the field of corrections and jail

administration. His opinions are based in large part on the national standards published
by the American Correctional Association (“ACA”) and other published information, as well
as his own knowledge and expertise. According to his verified statement (ECF No. 292-2),
he proposes to opine that Denver breached its duty of care to Vigil with respect to booking,
intake and classification process at the PADF and this breach was the cause of Vigil’s
suicide. This opinion is based primarily on various alleged failures to properly screen and
identify Vigil’s mental status and communication needs. Dr. Pogrebin further opines that
Denver also breached its duty of care when Vigil was transferred to the Jail, which also
caused Vigil’s suicide, by: (1) placing Vigil in administrative segregation; (2) failing to offer
necessary accommodations needed to identify and prevent suicide risks; (3) failing to
present him to the Administrative Review Board with a sign language interpreter; (4) failing
to provide notice to inmates with disabilities of their rights and of accommodations
available; (5) placing Vigil in a remote cell and failing to properly monitor him; (6) failing to
provide appropriate policies regarding deaf inmates. Dr. Pogrebin also opines that Denver
breached its duty of care by failing to adequately train officers on issues relating to deaf
inmates and suicide prevention, both at the academy and ongoing.
Following my rulings at the hearing as well as my resolution of a number of issues
in the motions for summary judgment, several of the objections raised by Denver in its Rule

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702 motion are now moot or resolved.2 The primary remaining issues concern whether
Dr. Pogrebin may testify concerning events occurring outside of the statute of limitations
for Plaintiffs’ claims, specifically alleged errors in the intake, medical screening, and
classification process at the PADF. The second issue is whether Dr. Pogrebin may opine
that the ACA standards represent the appropriate standard of care regarding Denver’s
alleged negligent acts and omissions and that Denver failed to comply with those
standards.
a.

Events Occurring Outside Statute of Limitations

I requested supplemental briefing from the parties regarding the admissibility of facts
and opinions relating to the events occurring in connection with Vigil’s intake and
classification; these facts may not support a claim because they are time-barred but may
be admissible for other purposes. Plaintiffs argue in their memorandum of law on the issue
(ECF No. 315) that the challenged evidence is relevant as background for the experiences
of the individual plaintiffs and is relevant to the organizational plaintiffs’ claims for injunctive
relief. Plaintiffs argue that under Rule 401 of the Federal Rules of Evidence, evidence is
relevant where it has “any tendency to make the existence of any fact that is of
2

In the Rule 702 Motion, Denver challenges Dr. Pogrebin’s proposed testimony
on the following grounds: (1) he is not sufficiently qualified to render opinions on policies
and procedures for intake, classification and mental health screening for deaf prisoners
or on the treatment and supervision of inmates with disabilities (deafness) and mental
health problems; (2) his opinions concerning non-compliance with American Corrections
Association recommendations are not reliable; (3) he should not be allowed to offer
subjective, personal opinions concerning whether Vigil was depressed or concerning
Vigil’s ability to communicate when in the Jail; (4) his opinions concerning Vigil’s mental
health are unreliable because they ignore significant facts in evidence; and (5) he
should be prohibited from rendering an opinion on an ultimate issue. Denver also
challenges Dr. Pogrebin’s opinions regarding events occurring outside the statute of
limitations.
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consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Moreover, relevance is shown where a fact may assist in
making an inference or a chain of inferences. United States v. McVeigh, 153 F.3d 1166,
1190 (10th Cir. 1998). Plaintiffs cite numerous cases in which evidence of events occurring
outside the statute of limitations was admitted as background. See, e.g., Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (employment discrimination case).
Here, Plaintiffs argue the background evidence is relevant to several issues,
including whether Denver followed a custom or pattern or practice of failing to provide
reasonable accommodations to deaf inmates. They further argue that the jury needs to
understand that Vigil’s detention involved a continuing course of events that gave rise to
his harm. In particular, Plaintiffs urge that the jury should understand that Vigil was not
evaluated for his risk of suicide or medical/psychological history at the inception of his
incarceration and that this affected every subsequent aspect of his detention. Similarly,
they contend that because Vigil was not given a sign language interpreter at his admission,
he was not given the opportunity to understand his surroundings and that this would have
contributed to his feelings of isolation and confusion. Plaintiffs also argue that this
evidence is not unfairly prejudicial in that it is not emotionally provocative or inflammatory
and that any tendency to confuse the jury on liability issues can be remedied with a jury
instruction.
In response, Denver contends that the facts may be admissible but that expert
opinions regarding the time-barred events should be excluded. In that regard, Denver
submits as examples that documents concerning Vigil’s initial medical screening and other
questionnaires would be admissible as background, as would be evidence of the routine
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practices of the Jail for these activities. Expert opinions regarding these events, however,
should not be admitted, according to Denver, because of relevance and jury confusion
concerns. Denver argues that a limiting instruction concerning the expert opinions would
not suffice to cure the prejudice. Denver further contends that this is not a “pattern or
practice” case and that such evidence is not probative of any element of the disability
discrimination claims or of the claims for compensatory damages. With respect to the
request for injunctive relief, Denver notes that this is an issue for the court, not the jury, and
any claims for injunctive relief concerning Vigil’s screening and intake are also time-barred.
I conclude that some of the evidence relating to Vigil’s initial intake, medical
screening, and classification is relevant and admissible. I agree with Plaintiffs that this
evidence provides context for the subsequent events, including how it came to be that Vigil
was placed in segregation and the general lack of information about his mental health
status and the extent of his disability and inability to communicate. I conclude this evidence
is relevant to the question of whether the failure to accommodate is a pervasive problem
such that deliberate indifference for the purposes of damages and the need for injunctive
relief could be shown. Accordingly, I will not categorically exclude all evidence pertaining
to the events occurring outside the statute of limitations; trial objections, however, may be
raised. The parties may submit an appropriate limiting instruction for the jury regarding
how such evidence should be treated.
However, given my ruling that the claims based on the arrest and intake of Vigil are
barred by the statute of limitations, I agree with Denver that expert opinions whether the
arrest and intake amounted to a breach of the duty of care has a danger of confusing the
jury about whether these events can form the basis of liability. I will, therefore, sustain
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objections to expert opinions in this regard. Nonetheless, I will not exclude all expert
opinions as to these earlier events. In order to assist the jury to understand the operation
of the detention facilities and the steps that are taken to ensure proper placement and
treatment, I will permit some expert testimony about the purpose and intent of the intake,
classification, and screening process and of the documents used. That testimony may
include how effective communication between the deaf and those conducting the intake can
be achieved. I do conclude that this evidence is relevant to the jury’s understanding of the
cumulative effect of Vigil’s incarceration on his mental state and the alleged failures to
accommodate his disability later at the Jail. Again, the parties may suggest appropriate
jury instructions regarding these opinions.
b.

ACA Standards

The parties disagree on whether the ACA recommendations may properly be used
to evaluate Plaintiffs’ claims. Dr. Pogrebin cites ACA recommendations to support his
opinions that Denver breached its duty of care to Vigil and asserts that ACA standards
“represent the acceptable community standards of practice and jail management.”
Pogrebin Statement at 10 (ECF No. 292-2). He also references testimony by Chief Foos
that the ACA provides standards of acceptability in the jail community. Id. At the hearing,
I concluded that the ACA standards could be used as a frame of reference in determining
the applicable standard of care for operating a jail but that these standards did not define
the standard of care per se. Tr., April 21, 2011, at 127. In its post-hearing brief (ECF No.
314), Denver seems to argue that Dr. Pogrebin should not be able to rely on the ACA
standards at all, arguing that his opinions misapply the ACA standards and that his
methodology is therefore not sufficiently reliable.
10

Evidence presented at the hearing and with the briefs establishes that the ACA is
a private, non-profit association comprised of a variety of professionals and experts in
corrections administration. The ACA standards are used as part of the ACA’s accreditation
program, which is purely voluntary. It is undisputed that there is no requirement that any
jail or other correctional facility be accredited by the ACA.3 The ACA standards include
both mandatory and non-mandatory standards; to receive ACA accreditation, a facility must
satisfy all of the mandatory standards and a specific percentage of the non-mandatory
standards. The standards have been revised over the years; currently the fourth edition
is in effect and updates are issued on a regular basis.
Denver’s criticisms of Dr. Pogrebin concern various technical errors in his expert
report regarding which ACA standard he has applied and whether the standard is from the
current fourth edition. Denver also argues that Dr. Pogrebin does not distinguish between
mandatory and non-mandatory standards. In response, Plaintiffs note that the use of the
standards for the purpose of accreditation is unrelated to the use of the standards as a
guideline to determine the standard of care in the operation of a facility and that, therefore,
these alleged discrepancies do not prove that Dr. Pogrebin’s methods are unreliable. I
agree with Plaintiffs. The evidence from Dr. Pogrebin and from Denver’s own expert,
Director Wilson, shows that the ACA standards represent the correctional community’s
understanding of the “best practices” for the operation of a jail or prison. The ACA
standards are therefore relevant and informative regarding the standard of due care
applicable here, as I have already ruled.
3

The Denver PADF and Jail were not ACA accredited at the time of Vigil’s
incarceration but have been at other time periods.
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Dr. Pogrebin is not being offered as an expert in ACA accreditation but as a general
expert in jail administration. Therefore, Dr. Pogrebin’s technical errors, which could be
significant to the question of accreditation, do not render his opinions inadmissible. The
differences between the third and fourth edition of the relevant ACA standards are
negligible; both substantively support Dr. Pogrebin’s opinion regarding the alleged negligent
acts and omissions of Denver in the operation of the Jail. Similarly, the difference between
mandatory and non-mandatory standards may be important to the accreditation process
but is not relevant for the limited purposes for which I have ruled that the standards may
be used. On cross-examination, Director Wilson generally agreed with Dr. Pogrebin about
the substance of Dr. Pogrebin’s opinions regarding the importance of adherence to federal
law, of proper mental health and medical screenings, of informed classification decisions,
the need for comprehensive policies and training to prevent inmate suicides, and other key
issues. Therefore, I will not exclude Dr. Pogrebin’s testimony or limit the use of the ACA
standards any more than I have already ordered.
2.

Jean Andrews, Ph.D.
Dr. Andrews is the Director of Doctoral Graduate Programs in Deaf Education and

a professor of deaf studies and deaf education at Lamar University in Beaumont, Texas.
She has worked with deaf individuals since 1975 and has engaged in extensive teaching
and scholarship in the area. She is a licensed teacher of the deaf and a licensed reading
specialist. She explains that she developed a communication/language profile of Vigil to
determine which mode of communication and language he used; to do this she relied
primarily on his school records and samples of his writing after his arrest, as well as
deposition testimony.

She also conducted a readability analysis to determine the
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readability grade level of Denver’s publications given to Vigil at the PADF and Jail.
In her verified statement, she opines that Vigil’s primary mode of communication was
ASL and that he had a very low non-verbal IQ and low reading skills. ECF No. 292-1 at 3.
Her view is that English speech, lipreading, and note-writing would not have provided
effective communication for Vigil as he had only a second grade reading level. She opines
that because of his low reading ability, he would not have been able to understand the
intake questionnaire, Jail handbook, Miranda warning, and other documents that were the
primary source of information for inmates. She evaluates these as being written at a sixth
grade reading level, except for the inmate handbook, which was written at a college reading
level. Therefore, she asserts that Vigil had no way of understanding the rules and
regulations of the Jail or his rights and privileges. She asserts that only ASL would have
provided effective communication and that the failure to provide him one during the intake
means that he could not communicate his medical and psychological needs. He also could
not understand what was going on or how to request assistance and that his inability to
understand and lack of coping skills caused him to suffer “acute distress, anxiety and
emotional and psychological pain.” Id. at 4. She also argues that he was not provided with
appropriate supervision and did not have any real interaction with deputies and nurses
because of his inability to communicate.
Again, a number of the objections raised by Denver to Dr. Andrews’ proposed
opinion testimony have been resolved or are moot.4 As set forth in Denver’s post-hearing
4

In the Rule 702 Motion, Denver argues that Dr. Andrews is not qualified to
render opinions on medical, mental health, and jail policy and procedures. Denver also
contends that several of Dr. Andrews’ opinions regarding Vigil’s isolation and mental
state are not adequately supported by facts on the record. In its hearing brief, Denver
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brief (ECF No. 314), the only remaining issues are Denver’s contention that Dr. Andrews’
methodology for creating a communication/language profile for Vigil is unreliable and the
admissibility of testimony regarding events occurring before the statute of limitations.5 I
have already addressed the second issue and my discussion above is equally applicable
to the opinions of Dr. Andrews. Therefore, I examine only the reliability of Dr. Andrews’
methodology in determining Vigil’s ability to read, write, and otherwise communicate.
As noted by Plaintiffs, Denver did not raise this objection in its motion or
supplemental briefing but rather asserted it for the first time at the hearing. I need not
address whether this argument should be barred because of this failure to timely raise it
and the resulting prejudice to Plaintiffs, who were not prepared to address it at the hearing,
because I conclude that Dr. Andrews’ methodology is reliable.
Denver argues that Plaintiffs failed to present evidence to show that the
“methodology for creating a communication/language profile for a deceased person” is
reliable under Daubert because it is not tested, subject to peer review or known error rates
or standards and controls, and is not generally accepted in the scientific community. I

argues again that any opinions relating to events occurring before the statute of
limitations should not be admitted. Denver further objects to any opinion by Dr.
Andrews to the effect that the “severe communication deprivation . . . was a cause of
Mr. Vigil’s taking his own life” because this opinion was not previously disclosed.
Finally, at the hearing, Denver raised an additional objection, specifically that Dr.
Andrews’ methodology in determining Vigil’s reading ability and primary mode of
communication is not reliable.
5

Denver also argues that Dr. Andrews should not be permitted to opine on Vigil’s
actual mental state while incarcerated. As noted above, I have already ruled that such
opinions are inappropriate, although Dr. Andrews may testify generally about the
common psychological effects of incarceration and communication difficulties on deaf
persons.
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disagree that Daubert is so rigid or narrow. Dr. Andrews testified that the method she used
to determine Vigil’s language/communication ability relied on the types of data typically
used in her field, including accepted tests normed for the deaf population, that she teaches
this same method to her students and has included it in a published book, that this is the
method used in her field for evaluating any person (living or deceased, available or
unavailable), and that it is not uncommon for such evaluations to be done without a
personal interview of the subject. I am satisfied from this evidence that Dr. Andrews has
applied “the same level of intellectual rigor that characterizes the practice of an expert in
the relevant field.” Kumho Tire, 526 U.S. at 152.

The fact that Dr. Andrews did not

personally meet or interact with Vigil goes to the weight of the evidence and can be
addressed on cross-examination but does not render her opinions in this regard
inadmissible.
Denver also contends that Dr. Andrews’ method is unreliable because she did not
review all of Vigil’s school records. However, Dr. Andrews testified that she had reviewed
all of the most recent records available and that the historical data was much less important
than the records showing his ability nearest the time of his incarceration. This again does
not demonstrate that her methodology was unreliable.
Accordingly, it is ordered:
1.

Defendant’s Fed.R.Evid. 702 Motion to Strike Expert Witnesses (ECF No.
246) is granted in part and denied in part. The motion is granted with respect
to Dr. Mark Pogrebin and Dr. Jean Andrews as follows: these experts may
not opine as to the specific mental state of Vigil during his incarceration, may
not opine as to whether acts and omissions occurring before the statute of
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limitations amounted to a breach of the duty of due care, and may not opine
that the ACA standards represent the standard of due care, although
reference to the ACA standards will be permitted as informing the standard
of due care. The motion is otherwise denied as to these two witnesses and
to the proffered expert testimony of Linda Edwards, without prejudice to trial
objections.
DATED at Denver, Colorado, on June 28, 2011.
BY THE COURT:

s/ Walker D. Miller
United States Senior District Judge

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