McGill et al v. Correctional Healthcare Companies, Inc. et al
ORDER granting 135 Motion in Limine; granting 136 Motion in Limine; granting 137 Motion in Limine; denying 138 Motion in Limine; granting 140 Motion in Limine; granting in part and denying in part 141 Motion in Limine; granting 142 Motion in Limine by Judge R. Brooke Jackson on 11/20/14.(jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 13-cv-01080-RBJ-BNB
CORRECTIONAL HEALTHCARE COMPANIES, INC. d/b/a/ “CORRECTIONAL
HEALTHCARE MANAGEMENT, INC.”;
CORRECTIONAL HEALTHCARE PHYSICIANS, P.C.;
CHC COMPANIES, INC.;
TED MINK, in his official capacity as Jefferson County Sheriff only;
JAMES BRILL, individually; and
GINA BATTENHOUSE, individually,
This matter is before the Court on several motions in limine filed by both parties. The
Court has considered the motions and the responses. Bearing in mind that each of the following
rulings is subject to reconsideration if counsel or a witness “opens the door” to the admission of
evidence that has preliminarily been excluded, the Court addresses the motions as follows:
Plaintiff’s Motion in Limine to Exclude Evidence of Plaintiff’s Criminal History and
Any Expert Testimony Related Thereto [ECF No. 135].
Mr. McGill’s prior criminal history does not fit the categories of Fed. R. Evid. 609 as
impeachment evidence. Defendant’s response suggests that he was in jail for his third DUI
conviction and had been revoked from the inmate-outmate program. The defendant has not,
however, indicated that it has any evidence that the DUI history is likely to affect his
employability. If defendant has such evidence, the Court might reconsider that part of this
ruling. However, based on what is before the Court at this time, the motion is GRANTED as to
his criminal history.
Near the end of the motion plaintiff inserts a short paragraph concerning “the jail file of
several witnesses,” seemingly almost by way of an afterthought. The motion does not explain
what these files are or for what purpose the defendant might wish to use them. The response
does not elaborate either. The Court is in no position to make an in limine ruling on the so-called
Plaintiff’s Motion in Limine to Exclude the Westword Article Relating to this Case
[ECF No. 136].
The motion is GRANTED. To the extent that the article might be offered to prove the
truth of any of its contents, it is inadmissible as hearsay, and its reporting of the statements of
other witnesses would be double hearsay. The Court is not persuaded that a newspaper article of
this nature has such circumstantial guarantees of trustworthiness as to be admitted under Rule
807. If any of the persons quoted in the article is called as a trial witness, and if either party
believes that the witness has testified contrary to statements quoted in the article, the reporter
(whom defendant represents in its response will be available for testimony at trial) will have to
be called to attest to the alleged prior inconsistent statement.
Plaintiff’s Motion to Strike Portions of Dr. Garlick’s Expert Report and Preclude
Testimony Regarding the Same [ECF No. 137].
The motion is GRANTED. The Court has reviewed Dr. Garlick’s report. ECF No. 1371. The problem with the opinions described in the second paragraph under the “Miscellaneous”
heading (report p. 5) -- concerning whether plaintiff’s PTSD, if any, might have been caused by
alcoholism or the fact that the plaintiff was adopted or by some other childhood trauma -- is not
that he is not qualified, at least as to alcohol addiction. The problem is that the opinions are not
based on any disclosed factual foundation. As such, these opinions are nothing more than
speculation and cannot pass even the relatively low threshold for relevance and reliability under
Rule 702. Accordingly, the motion to strike that portion of the report is granted.
The portion of the report wherein Dr. Garlick expresses the opinion that Dr. Brill’s
actions were within the standard of care (which is inconsistent with CHC’s wish to designate him
as a nonparty at fault, as discussed below) appears to have been provided at a time when Dr. Brill
was a named defendant. Plaintiff has dismissed his claim against Dr. Brill. Accordingly, this
opinion does not appear to be relevant, and the motion is granted as to it. This is an example,
however, where if plaintiff or counsel suggests or implies that Dr. Brill might have been
negligent in any way, the door will have been opened to admit this evidence.
As for whether Dr. Garlick has the expertise to express the opinions contained under the
heading “Timing of the Onset of Stroke” (page 4 of the report), the Court does not have
sufficient information to answer that question. If the defendant maintains a desire to have Dr.
Garlick express these opinions, then it should set an evidentiary Daubert hearing on that subject
Finally, plaintiff requests that the portion of the report under the heading “Second Stroke
at Lutheran Hospital” be excluded. Motion at 8, n.3. That is based on plaintiff’s representation
that defense counsel has conceded that this portion of the report is not supported by radiological
evidence and would not be raised at trial. Curiously, defendant does not address that matter in its
response, instead taking the general position that Dr. Garlick is qualified to express opinions on
strokes. I will assume that plaintiff’s representation regarding the “second stroke” is accurate. If
the defendant disagrees and intends to present the opinion, notwithstanding the radiological
evidence, then they should include this issue in the Daubert hearing on the “Timing of the Onset
of Stroke,” if they set such a hearing. Otherwise, this portion of the motion is granted. Please
note that by excluding those opinions the Court is determining that neither side may use them.
Sheriff Mink’s Motion in Limine to Exclude All Evidence Related to Direct Liability
Against the Sheriff [ECF No. 138].
The motion is DENIED, but this should not be read as a ruling that all such evidence is
necessarily admissible. In the first place I question the Sheriff’s standing to make this motion.
By its terms the motion seeks exclusion of evidence related to the Sheriff’s direct liability.
However, the Court dismissed plaintiff’s direct liability claim against the Sheriff. The Sheriff
has an interest only in the sense that there is a theoretical possibility that the Sheriff could be
required to pay a portion or even all of a judgment against CHC on the constitutional claim if
CHC is unable to do so.
The Sheriff’s primary argument is that the evidence related to direct liability against him
is no longer relevant to the plaintiff’s case. The Court disagrees. At least some of the evidence
that is covered by this motion (the contract, the pre-stroke MAC meetings attended by CHC
personnel) is potentially relevant to plaintiff’s claim that CHC had a policy or custom of
providing inadequate training or supervision due to financial pressures. I am not yet convinced,
however, that evidence of meetings that occurred after the stroke are necessarily probative of
CHC’s policies or customs before the stroke occurred. They could be, but the Court will address
those issues if and when plaintiff offers specific pieces of this evidence at trial.
As an alternative to its relevance argument the Sheriff suggests that the relevance of the
evidence is substantially outweighed by the danger of jury confusion or wasting time. I am left
to wonder, however, how the jury would be confused or how any confusion would be so
prejudicial to the Sheriff as to cause the Court to exclude the evidence under Rule 403. The
Court will not permit any waste of time.
Plaintiff’s Motion to Preclude Dr. Brill From Giving Neurological Expert Testimony
Regarding Causation that is Outside his Scope as a Treater and Not Properly Designated
[ECF No. 140].
This motion is GRANTED. Dr. Brill may testify concerning his qualifications, his role
and responsibilities at the jail, policies and procedures at the jail concerning the provision of
medical care to inmates, and his participation in the events of September 17 and 18, 2012. The
latter includes the bases for opinions that he formed and decisions that he made at the time
concerning the condition, care, and treatment of the patient. He may not be asked questions that
extend beyond those limits, such as, for example, standard of care questions concerning nurses or
other staff or whether he agrees or disagrees with other testimony. The Court finds, first, that
CHC staked out a position on this subject in a successful motion for a protective order in this
case that is consistent with the foregoing limitations, and it thus successfully limited the areas of
inquiry permitted the plaintiff’s lawyers in Dr. Brill’s deposition. CHC will not be heard now to
take a position inconsistent with the earlier position and the Court’s order that CHC requested.
Second, to the extent Dr. Brill would be asked question that go beyond the foregoing
subjects, he becomes the equivalent of a retained or specially employed expert, but CHC has not
(per plaintiff’s representation) provided the disclosure required by Fed. R. Civ. P. 26(a)(2)(B).
Defendants Correctional Healthcare Companies, Inc., Correctional Healthcare
Physicians, P.C., CHC Companies, Inc. and Gina Battenhouse’s Motions in Limine [ECF
This motion is GRANTED IN PART AND DENIED IN PART.
A. Any evidence of prior lawsuits against CHC Defendants.
To begin, the Court’s understanding of plaintiff’s position is that CHC had policies or
customs in three related areas: (1) a widespread and well-settled practice of presuming that
subjective complaints of I nmates -- i.e., those which cannot be readily confirmed by objective
evidence -- are invalid, and thus not providing prompt attention to such complaints; (2) a failure
to adequately train or supervise nurses and other employees with respect to responding to
subjective complaints; and (3) the ratification by final policymakers of the decisions of
subordinates who respond to subjective complaints of inmates in that manner.
Linking these alleged policies or customs together is plaintiff’s contention that CHC was
motivated by a desire to limit costs which in turn motivated CHC to avoid sending inmates out
for care in a hospital or by another outside provider. Plaintiff contends that this attention to
financial considerations went beyond prudent management and resulted in times where inmates
were denied immediate and urgent care, Mr. McGill being an example. Based on these practices
plaintiff seeks to establish CHC’s liability for Nurse Battenhouse’s allegedly unconstitutional
acts and to convince the jury to award punitive damages on the state common law claim.
In its motion CHC cites law to the effect that evidence of previous complaints is not
necessarily indicative of a policy or custom sufficient to deliberate indifference. I agree. CHC
appears to concede, however (and cites law supporting its concessions) that a previous complaint
might be relevant for the purpose of proving an entity’s deliberate indifference if the complaint
was meritorious but CHC ignored it. Motion at 4. Put another way, if it could be shown that
CHC had a practice of sweeping meritorious complaints “under the rug” and continuing to
tolerate the same wrongful practices, the evidence would be probative on both the constitutional
claim and the prayer for punitive damages. To be admissible the previous complaints must bear
a factual resemblance to the circumstances involved in the present case. But if these criteria are
met, then evidence of other incidents may be admitted. See, e.g., Cannon v. City and Cnty of
Denver, 998 F.2d 867, 877–78 (10th Cir. 1993).
Defendant lists five incidents that it anticipates plaintiff might wish to use. I agree with
defendant’s objections to the first three, but plaintiff’s response does not identify those three as
incidents of interest for trial purposes. Rather, plaintiff’s response lists two matters which he
contends have a tendency to show the existence of one or more of the policies or customs that he
attributes to CHC. Assuming that plaintiff can present competent evidence of the following
incidents, this Court concludes that evidence of the following incidents appears to be relevant
based upon plaintiff’s description:
1. Revilla v. Glanz, No. 4:13-cv-00315-JED-TLW (N. D. Okla.). Based on the
allegations of the complaint (a copy of which can be found docketed in the present
case at ECF No. 148-1), which is all I have to go on at this point, three inmates died
and a fourth came close to death as the result of CHC’s indifference to their requests
for medical assistance and delays in providing competent treatment. Plaintiff argues,
and based on the complaint I agree, that the alleged facts concerning three of the four
inmates appear to be relevant to the policy or custom allegation. Plaintiff also notes a
series of reviews of CHC’s practices at that jail by the Department of Justice and
others, occurring before the Revilla incidents and the McGill incident. Defendant
objects on the basis that the Oklahoma lawsuit was filed more than a month after the
present suit was filed. The dates of the filings of the lawsuits are irrelevant. Two of
the three incidents occurred before the McGill incident, and I see no reason why the
fourth incident (which occurred shortly after the McGill incident) is not relevant to
CHC’s policies or customs in the timeframe of the McGill incident. Defendant also
argues that the Oklahoma jail was managed differently than the Jefferson County
Detention Facility. Defendant does not explain why the differences, if they exist,
make evidence of CHC’s conduct inadmissible. At most the differences would go to
weight, not admissibility of the evidence.
2. Lara-Williams/Burke v. Glanz, No. 4:11-cv-00720-JED-PJC (N. D. Okla.).
According to plaintiff, an inmate died after CHC medical staff determined that he was
faking paralysis (and videotaped him in a medical observation room to show that he
was faking, which he was not), meanwhile ignoring his deteriorating and dehydrated
condition. Plaintiff points to deposition testimony of Dr. Herr, Chief Medical Officer
of CHC, who was uncertain as to the extent to which this incident and the staffs’
errors were communicated across the CHC system, including to the staff in the
Jefferson County Detention Facility. Defendants’ motion indicates that the case was
voluntarily dismissed (the case record indicates that the claims against CHC were
settled), and that training was done at the Tulsa jail after the incident.
CHC argues that the probative value of the evidence is substantially outweighed by the
danger of unfair prejudice such that the evidence should be excluded under Rule 403. The
advisory committee suggested that unfair prejudice “means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an improper one.” It “cannot
be equated with testimony which is simply unfavorable to a party.” McEwen v. City of Norman,
Okla., 926 F.2d 1539, 1549 (10th Cir. 1991). I agree with CHC that the video of Mr. Williams
dying in the Lara-Williams/Burke matter has relatively little relevance and creates a significant
risk of unfair prejudice through an emotion-driven decision. Otherwise, I am not persuaded.
Proof of an entity’s customs and practices is difficult, and the significance of the Oklahoma
incidents (again assuming there is competent proof of what occurred) appears to me to be great.
While any evidence of mistreatment of a human being inevitably has an emotional component,
the Court finds that evidence of CHC’s actions in the other incidents (excluding the potentially
inflammatory video) is not substantially outweighed by the danger of unfair prejudice.
B. Any testimony or evidence by a witness commenting that Defendants “consciously
disregarded” a serious medical need.
I agree with CHC that the term “consciously disregarded” expresses an opinion on an
individual’s state of mind (intent) that is inappropriate for expert opinion testimony. See, e.g.,
Isom v. Howmedica, Inc., No. 00 C 5872, 2002 WL 1052030, at *1 (N.D. Ill. May 22, 2002).
Plaintiff’s experts can express their opinions about the appropriateness of nurses’ actions based
on facts in evidence (for example, what was shown or told to the nurse, what the nurse did, what
the nurse said) and opinions on the standard of care and whether the nurse’s conduct fell below
the standard of care. If appropriate, they can express opinions based upon assumed facts (there
must be evidence supporting the assumed facts). This can be done without speculating on the
nurse’s intent. That is an inference about which the lawyers can argue in closing statements and
that the jury will ultimately determine whether to draw. The ruling applies to both parties and
their experts, not just plaintiff’s experts.
Plaintiff’s Motion to Preclude Expert Evidence Related to Dismissed and/or Settled
Claims [ECF No. 142].
This motion is GRANTED. Plaintiff asks the Court to exclude as irrelevant “evidence”
(1) that the plaintiff initially named Dr. Brill as a defendant but later dismissed his claim against
Dr. Brill; (2) that Mr. McGill’s wife was initially named a party plaintiff, but her claims were
voluntarily dismissed; and (3) that certain of plaintiff’s claims against Jefferson County have
been resolved or dismissed by the Court. Defendant responds that this evidence is relevant to
CHC’s nonparty tortfeasor designation. CHC points out that in its Answer to the Second
Amended Complaint, it stated, “In the event of a settlement between Plaintiff and any other
Defendant or nonparty tortfeasors, and/or in the event of a dismissal of a party without payment,
this paragraph constitutes the Defendant’ notice of designation pursuant to C.R.S. § 13-21111.5.”
Colorado law permits a party to designate non-parties whom they contend are “wholly or
partially at fault,” and in an appropriate case, the jury could allocate a portion of the negligence
or fault to the nonparty. C.R.S. § 13-21-111.5(3)(b). Such an allocation does not, of course,
impose liability on a nonparty, but it reduces the comparative fault of the designating defendant.
This would not apply to the constitutional claim but could, in theory, apply to plaintiff’s
In the first place, I question whether that is a proper way to designate a nonparty
tortfeasor, keeping in mind that there has to be a good faith basis in fact and law under Rule 11
to make such a designation. But assuming for the sake of argument that it might have been a
proper designation, it stumps me (and CHC does not explain) how the fact that Dr. Brill or Ms.
McCracken were once parties to the case would be probative of a claim that their negligence or
other actions were contributing causes of Mr. McGill’s injuries. Nor would the fact that there
were other claims against the Jefferson County defendants be proof of their fault.
Even more basically, CHC offers no evidence (nor could it, I suspect) that anything Ms.
McCracken ever did could be viewed as negligence or fault contributing to Mr. McGill’s
injuries. CHC offers no evidence (nor do I imagine it would wish to offer evidence) that Dr.
Brill was negligent or at fault. Keep in mind that CHC’s same lawyers represented Dr. Brill in
this case; they admitted that he was an employee of the CHC defendants [ECF No. at ¶ 26]; and
they denied that he was negligent [id. ¶ 255]. Moreover, even if they could prove negligence on
the part of Dr. Brill, such fault would presumably be attributable to CHC through respondeat
superior liability. I suspect Dr. Brill would be rather surprised and disappointed, to say the least,
to find that CHC and its lawyers have turned on him. And one cannot just designate a nonparty
and expect to have fault assigned. The designating party must present evidence that the
nonparty’s fault contributed to the plaintiff’s injuries. See Barton v. Adams Rental, Inc., 938
P.2d 532, 536 (Colo. 1997).
As for any alleged negligence of Jefferson County, I again find it improbable that CHC
seriously intends to present evidence that the Sheriff’s Office, with which it contracts to provide
medical care to inmates, was negligent in some way. CHC does not hint at any such evidence.
There was no indication in the recent trial preparation conference that CHC intended to present
evidence of negligence or fault against the Sheriff’s Office. No jury instructions on such a claim
were tendered. And, if CHC were to attempt to take such a position, they would run squarely
into this Court’s ruling that the Sheriff’s Office has no direct liability for the injuries suffered by
It appears to this Court that CHC might hope subtly to sully the plaintiff or Dr. Brill or
the Sheriff without actually accusing any of the nonparties of negligence or presenting any
evidence of negligence in the hope that the jury might, if invited to do so, allocate some fault to
one or more of them and thereby reduce CHC’s proportionate negligence. That is not going to
happen. The plaintiff's motion is granted.
DATED this 20th day of November, 2014.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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