Jemme J. Jenkins, Individually, and Administrator of the Estate of Jimmie Lee Alexander, Sr. v. Corizon Health Inc. et al
Filing
348
ORDER denying 285 Motion in Limine to the extent Plaintiffs seek to exclude the conclusions contained in the reports. The portions of the CCSO report that contain hearsay will be be admissible; denying without prejudice 289 Motion in Limine in which Plaintiffs may renew objections at trial should the issue arise; granting 290 Motion in Limine in which protions of Dr. Bhandari's deposition, described within this Order, shall be excluded from trial; sustaining, deferring ruling, and overruling parties' respective objections as described within this Order re 293 Motion in Limine; granting in part and denying in part 297 Motion in Limine as described within this Order; granting in part and denying in part 304 Motion in Limine as described within this Order; granting portions of 296 Motion as described within this Order; and dismissing as moot 308 Motion for Leave to File as Plaintiffs requested charge is already properly before the Court. Signed by Judge William T. Moore, Jr. on 02/08/2022. (jlh)
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 1 of 25
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JEMME J. JENKINS, Individually,
and JULIANNE GLISSON,
Administrator of the Estate of
Jimmie L. Alexander, Sr.,
Plaintiffs,
CASE NO. CV418-099
V.
CORIZON HEALTH INC., a Delaware
Corporation; GUY AUGUSTIN,
M.D.; VICTORIA NEILSER, LPN;
and MARK DAMBACH, LPN;
Defendants.
ORDER
Before
the
Court
are
several
pretrial
motions
filed
by
Plaintiffs Jemme J. Jenkins and Julianne Glisson, Administrator of
the estate of Jimmie L. Alexander, Sr., and Defendants Corizon
Health, Inc., Guy Augustin, Victoria Neisler, and Mark Dambach
(^^Corizon Defendants"). (Docs. 285, 289, 290, 293, 297, 304, 308.)
Having carefully considered each of these motions, the Court will
now announce its rulings.
LEGAL STANDARD
Trial courts ^^are
authorized to rule on motions in limine
pursuant to their inherent authority to manage trials[,] and they
exercise ^'broad discretion ruling on such motions." Pace v. Nat^l
Union Fire Ins. Co. of Pittsburgh, No. 1:12-cv-3096-MHC, 2015 WL
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 2 of 25
11199154, at *1 (N.D. Ga. Feb. 3, 2015). A trial court, however,
'"should only exclude evidence in limine where the evidence is
clearly inadmissible for any purpose." Soto v. Geico Indem. Co.,
No. 6:13-cv-181-Orl-40KRS, 2014 WL 3644247, at *1 (M.D. Fla. July
21, 2014) (citation omitted). Any rulings on motions in limine are
provisional
and
"remain[]
subject
to
reconsideration
by
the
[CJourt throughout the trial[.]" Id. (quotation omitted).
ANALYSIS
I.
PLAINTIFFS^ MOTION TO SUPPLEMENT REQUESTS TO CHARGE
Plaintiffs request leave to supplement their requests to
charge out of time. (Doc. 308.) Plaintiffs seek to add a requested
charge explaining the duty that can arise to a third party from
services rendered for consideration. (Id. at 3.) Federal Rule of
Civil Procedure 51(a)(1) requires parties to file their requests
to charge "[a]t the close of the evidence or at any earlier
reasonable time that the court orders[.]" Fed. R. Civ. P. 51(a).
At the pretrial conference in this case, the Court ordered the
parties to file their requests to charge by the close of business
on January 5, 2022. (Doc. 265 at 1.) Plaintiffs did not file this
requested charge until January 10, 2022. (Doc. 308.) Subsequently
however, following the settlement of two other defendants, the
Court provided the parties an additional opportunity to amend their
requested charges. Plaintiffs included the new requested charge in
their
amended
requests
to
charge.
(Doc.
323
atll.)
Because
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 3 of 25
Plaintiffs' requested charge is already properly before the Court,
Plaintiffs' motion (Doc. 308) is DISMISSED AS MOOT.
II.
PLAINTIFFS' MOTIONS IN LIMINE
Plaintiffs have filed various motions in limine. (Docs. 285,
289, 290, 293, 297.) Defendants oppose or partially oppose each of
these motions. (Docs. 314, 313, 317, 320, 310.) The Court will
address each of these motions in turn.
a. Conclusions in the CCSO's Internal Affairs Report and the
GBI's Report
Plaintiffs first seek to exclude portions of the Chatham
County Sheriff's Office's (CCSO) internal affairs report and the
Georgia Bureau of Investigation's report. (Doc.
285.) Plaintiffs
argue that the CCSO's and GBI's reports contain legal and factual
conclusions that are untrustworthy and inadmissible under Federal
Rules of Evidence 403, 702, and 803. (Id. at 3-4.) Defendants
concede that the investigative reports do contain inadmissible
information in
the form of
witness
statements and
duplicative
documentation. (Doc. 314 at 2-3.) However, Defendants argue that
the conclusions are admissible under the public records exception
to the hearsay rule. (Id. at 3-4 (citing Fed. R. Evid. 803(8).)
Federal Rule of Evidence 803(8) provides an exception to the
general hearsay rule for records or statements of a public office
from a legally authorized investigation unless the opponent shows
"the source of information or other circumstances indicate a lack
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 4 of 25
of trustworthiness." Fed. R. Evid. 803(8). However, Rule 803(8)
^'does not provide for the admissibility of the legal conclusions
contained within an otherwise admissible public report." Mines v.
Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir. 1989).
Additionally, ^'[a]ny statement contained in [a] report that was
made by a non-party witness or bystander is inadmissible as hearsay
within hearsay." Gregory v. Wal-Mart Stores E., LP, No. CV212-042,
2013 WL 12180710, at *6 (S.D. Ga. July 23, 2013).
Plaintiffs do not contend that the reports were not conducted
pursuant to a legally authorized investigation, and therefore,
bear the burden of showing the reports are untrustworthy. Crawford
V. ITW Food Equip. Grp. LLC, 977 F.3d 1331, 1347 (11th Cir. 2020).
In determining the trustworthiness of a public record, courts will
generally
consider
four
factors:
""^the
timeliness
of
the
investigation, the skill and experience of the investigator,
whether
the
investigator
held
any
sort
of
hearing,
and
the
investigator's impartiality." Gregory, 2013 WL 12180710, at *6
(citation omitted). Plaintiffs appear to argue that the CCSO report
is
untrustworthy because
Ronald Tyran, the
CCSO officer
who
conducted the investigation, is not an expert on medical issues or
the statutory requirements for providing medical care. (Doc. 285
at 4.) However, the question is not whether Mr. Tyran is an expert
in medicine but whether Mr. Tyran was qualified to investigate
potential violations of jail policies, the subject of the CCSO
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 5 of 25
report. Plaintiffs argue that Mr. Tryan was unaware of the ^^law
and the applicable statutes" but provide no evidence for this
assertion
other
than
their
disagreement
with
Mr.
Tyran's
conclusion. (Id. at 3); Crawford, 977 F.Sd at 1349 (^MT]he party
opposing admission . . . has adduced no evidence at all—apart from
bald
speculation—that
trustworthiness.")
any
of
Plaintiffs
have
the
also
OSHA
not
reports
shown
the
lack
CCSO
investigation was untimely or that Mr. Tyran lacked impartiality.
Likewise, Plaintiffs have put forth no evidence showing that the
GBI report is untrustworthy other than their disagreement with its
conclusion. (Doc. 285 at 4.)
As Defendants note, the reports do contain some inadmissible
content. Reviewing the "Findings" section of the CCSO report (Doc.
285, Attach. 1 at 12-14), it appears that most of Mr. Tyran's
conclusions
are
admissible
factual
findings.
Fed.
R.
Evid.
803(8)(A)(iii). However, the many witness statements included in
the report are likely inadmissible hearsay as barring a showing
that they fall under another exception or exclusion to the hearsay
rule. JVC Am., Inc. v. Guardsmark, L.L.C., No. 1:05-cv-0681-JOF,
2006 WL 2443735, at *13 (N.D. Ga. Aug. 22, 2006) (finding that
"only the opinions and conclusions of Detective Kanazawa formed
during his investigation admissible" and "that a statement of a
third party is not admissible merely because it is contained in a
police report"). For example, Mr. Tyran's summary of Dr. Augustin's
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 6 of 25
causation opinion is merely a recitation of Dr. Augustin's witness
statement and is inadmissible as hearsay within hearsay. (Doc.
285, Attach. 1 at 13.)
Finally, Plaintiffs argue that some of the conclusions in the
reports are purely legal conclusions and should be excluded as
confusing to the jury. (Doc. 285 at 3-4.) Specifically, Plaintiffs
contest the admissibility of the CCSO report's conclusion that no
county policies or procedures were violated and the GBI report's
conclusion
that
"no
criminal
acts"
were
found
in
their
investigation. (Id.) Although the conclusions in the reports touch
upon legal issues, the
Eleventh
Circuit has stated that the
"amorphous line between
^factual' and
^legal' conclusions may
obscure a practical analysis[.]" Mines, 886 F.2d at 303. In this
case, the Court finds that the conclusions contained the CCSO and
GBI
reports—which
liability
in
this
do
not
address
case—are
803(8)(A)(iii). Valdes
v.
Defendants'
"factual
Miami-Dade
ultimate
findings"
Cnty.,
No.
under
civil
Rule
12-22426-CIV-
MORENO/0'SULLIVAN, 2015 WL 7253045, *5-6 (S.D. Fla. Nov. 17, 2015)
(finding that conclusion from an internal affairs investigation
that plaintiff's excessive force allegations were "not sustained"
was a "factual finding" encompassed by Rule 803(8)(A)(iii) (citing
Beach Aircraft Corp. V. Rainey, 488 U.S. 153, 162, 109 S. Ct. 439,
446, 102 L.Ed.2d 455 (1988)). Because the Court finds the reports
are trustworthy. Plaintiffs' motion (Doc. 285) is DENIEID to the
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 7 of 25
extent they seek to exclude the conclusions contained in the
reports.^ The Court notes, however, that the portions of the CCSO
report that contain hearsay within hearsay will not be admissible,
b. Motion to Exclude Prejudicial Impeachment Evidence
Next, Plaintiffs ask the Court to prohibit Defendants from
using evidence based on criminal history or family circumstances
to impeach witnesses. (Doc. 289 at 1.) Plaintiffs argue that
Defendants have not provided the required notice of their intention
to use evidence of criminal history. (Id.) Plaintiffs also argue
that Defendants should not be permitted to impeach Plaintiffs'
witnesses due to being born out of wedlock. (Id. at 2-3.)
Defendants have responded that they have no intention of using
the fact that a witness was born out of wedlock as a method of
impeachment. (Doc. 313 at 1.) Defendants also state that they have
no intention of violating Federal Rule of Evidence 609(b)(2)'s
notice requirement to use criminal convictions older than ten
years. (Id. at 2.) However, Defendants ask the Court to defer
ruling on Plaintiffs' motion because it is unclear exactly what
evidence Plaintiffs wish to exclude and, therefore, how the Rules
^ Plaintiffs can still challenge the reports' conclusions but will
need to do so through presentation of contrary evidence at trial.
[V]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence."
McDowell V. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (citation
omitted).
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 8 of 25
of
Evidence
exclusion
of
would
such
apply.
broad
(Id.
at
3.)
categories
The
of
Court
agrees
potentially
that
admissible
impeachment evidence is inappropriate prior to trial. As a result.
Plaintiffs' motion (Doc. 289) is DENIED WITHOUT PREJUDICE, and
Plaintiffs may renew these objections at trial should the issue
arise.
c. Deposition of Dr. Aseem Bhandari
Plaintiffs
move
to
exclude
from
trial
portions
of
the
deposition of Dr. Aseem Bhandari, the interventional radiologist
who saw
Mr. Alexander at Memorial Hospital. (Doc. 290 at 1.)
Plaintiffs object to Defense Counsel's use of the phrase ""had
evidence of cocaine use" when asking Dr. Bhandari about the cause
of
Mr.
Alexander's
death.
(Id.
at
2.)
Plaintiffs
claim
the
inclusion of the phrase is highly prejudicial and has no bearing
on
Dr.
Bhandari's
medical
treatment
of
Mr.
Alexander.
(Id.)
Plaintiffs also object to a portion of the deposition in which Dr.
Bhandari
is
asked
about
a
debate
among
other
people-doctors
presumably-as to the exact cause of Mr. Alexander's death. (Id. at
2-3.) Plaintiffs argue that this information is speculative and
based on hearsay. (Id. at 3.) In response. Defendants argue that
the question about cocaine use is relevant because Dr. Bhandari
did not rule cocaine use out as a potential risk factor. (Doc. 317
at 4.) Defendants do not address Plaintiffs' second objection.
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 9 of 25
Turning to the first objection, as Plaintiffs
note.
Dr.
Bhandari was not qualified under Daubert to give any expert opinion
on the issue of causation. {Doc. 290 at 2.) Even if he were. Dr.
Bhandari was asked about a variety of hypothetical characteristics
in
addition
to
cocaine
use—age,
smoking,
hypertension,
high
cholesterol, and history of transient ischemic attack. (Doc. 317
at 2-3.) Dr. Bhandari merely stated that he believed ''some of
those"
characteristics
atherosclerotic
are
disease
but
risk
factors
did
not
for
developing
highlight
cocaine
specifically. (Id. at 3.) As a result, the Court finds that Defense
Counsel's
reference
to
cocaine
use
in
this
context
is
highly
prejudicial and has little, if any, probative value. Fed. R. Evid.
403. The Court also agrees with Plaintiffs' second objection. Dr.
Bhandari's response regarding the debate about Mr. Alexander's
exact cause of death is based entirely on inadmissible hearsay.
Fed. R. Evid. 801. Accordingly, Plaintiffs' motion (Doc. 290) is
GRISTED, and those portions of Dr. Bhandari's deposition shall be
excluded from trial.
d. Dr. Blais's De Bene Esse Video Trial Deposition
Plaintiffs
ask
the
Court
to
rule
on
several
objections
Defendants made during the de bene esse video trial deposition of
Dr. Robert Blais so that Plaintiffs can edit the video for use at
trial in accordance with the Court's rulings. (Doc. 293 at 1.)
Defendants have withdrawn some of their objections but maintain
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 10 of 25
others. (Doc. 320 at 1-4.) The Court will now rule on the remaining
objections to the deposition testimony.2 (Doc. 293, Attach. 1.)
i. Page 27, Lines 9-12:
Defendants maintain their objection to Dr. Blais's testimony
regarding the general competency of licensed practical nurses
(^^LPN"). (Doc. 320 at 2.) The Court has already ruled that Dr.
Blais is not qualified to opine on the standard of care for LPNs.
(Doc. 224 at 15.) Accordingly, Defendant's objection is SUSTAINED.
The testimony on Page 26, Lines 21 through 25 and Page 27, Lines
1 through 8, must be struck from the deposition.
ii. Page 32, Line 25:
Defendants maintain their objection that Dr. Blais assumed
facts
not
in
evidence
when
testifying
about
Dr.
Augustin
misdiagnosing Mr. Alexander with arthritis. (Doc. 320 at 2.) The
Court cannot determine whether Dr. Blais is assuming ^^facts not in
evidence"
until
the
evidence
has
been
presented
at
trial.
Accordingly, the Court DEFERS ruling on this objection.
iii. Page 39, Lines 23-24:
Defendants object to Plaintiffs' questioning that implies Dr.
Augustin did not examine Mr. Alexander until ^'3:00 or 3:15" as not
2 Plaintiffs also object to Wanda Williams and Desmond Bryant's
cross
examination
of
Dr.
Blais.
(Doc.
293 at
9-12.)
As
those
parties have been dismissed from this case. Plaintiffs' objections
to this testimony are SUSTAINED.
10
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 11 of 25
supported by the evidence in the record. (Doc. 320 at 2-3.) The
Court DEFERS ruling on this objection.
iv. Page 40, Lines 18-19:
Defendants object to
Dr. Blais's testimony regarding
Dr.
Augustin's diagnosis of deep vein thrombosis as assuming facts not
in the record. (Doc. 320 at 3.) The Court DEFERS ruling on this
objection.
V. Page 59, Lines 8-23:
Defendants object to Dr. Blais's response to one of their
questions
as
non-responsive.
(Doc.
320
at
3-4.)
In
essence.
Defendants asked Dr. Blais whether a standard of care assessment
should be made based on the information a person had at the time
of treatment or on all the information that may be known after the
fact. (Doc. 293, Attach. 1 at 16.) Dr. Blais responded that "this
particular type of issue with what Mr. Alexander experienced, I
don't think it's changed in the last 30 year[s]." It appears to
the
Court
that
Dr.
Blais
was
attempting
to
emphasize
the
straightforward nature of Mr. Alexander's medical situation in
response to Defendants' question. The Court does not find that
this answer was so non-responsive as to deserve being struck.
Defendants' objection is OVERRULED.
11
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 12 of 25
VI. Page 92, Lines 16-25:
Defendants object to Dr. Blais's response to their question
on
cross-examination
about
whether
Dr.
Augustin
appropriately
ordered medication in response to ^^acute findings." (Doc. 320 at
4.) In response to the question. Dr. Augustin stated, ^'Maybe not,
because a higher blood pressure is trying to drive more blood
distally, so I'm not sure that high blood pressure would have hurt
Mr. Alexander's leg." (Doc. 293, Attach. 1 at 24.) The Court
disagrees that this answer is non-responsive as Dr. Blais is
clearly stating that he thinks Dr. Augustin's decision to order
medication may not have
been appropriate.
Further,
Defendants
cannot complain that the answer is outside of the scope of Dr.
Blais's qualifications when they elicited the answer on crossexamination. See Nelson v. Freightliner, LLC, 154 F. App'x 98, 112
(11th Cir. 2005). Defendants' objection is OVERRULED.
e. Plaintiffs' Omnibus Motion in Limine
Plaintiffs seek to exclude four categories of evidence as
irrelevant under Federal Rules of Evidence 401, 402 and 403: (1)
discussion
of
prior
court
orders
or
prior
defendants;
(2)
statements of apology; (3) the effect of the lawsuit on insurance
rates; and (4) any suggestion that damages will not undo the harm
done. (Doc. 297 at 1-3.) Defendants partially oppose this motion.
(Doc. 310.) Plaintiffs' motion (Doc. 297) is GRANTED IN PART and
DENIED IN PART as follows:
12
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 13 of 25
i. Prior Court: Orders and Prior Defendanlis:
Plaintiffs seek to exclude any reference to the Court's prior
orders or evidence that other Defendants were previously parties
to this action. (Doc. 297 at 2.) The Court agrees with Defendants
that there may be instances in which this type of evidence is
admissible to rebut a claim made by Plaintiffs. (Doc. 310 at 2);
see, e.g., Fed. R. Evid. 408(b); Grand Slam Club/Qvis v. Int'l
Sheep Hunters Ass'n Found., Inc., No. 2:06-cv-4643-VEH, 2008 WL
11375374, at *2 (N.D. Ala. Jan. 13, 2008). Accordingly, Plaintiffs'
motion is DENIED WITHOUT PREJUDICE on this issue. However, the
Court warns the parties that they must approach the bench and
obtain express court permission before making any reference to the
Court's prior orders or a prior defendant's involvement in this
litigation.
ii. Statements of Apology:
Plaintiffs
ask
the
Court
to
exclude
^'[a]ny
reference
or
suggestion that Defendant[s] are sorry or regret[] the occurrence
in question" as an improper appeal to emotion. (Doc. 297 at 2.)
Defendants oppose the motion and, alternatively, ask that the Court
apply the inverse rule to Plaintiffs, preventing them from arguing
that Defendants have not apologised or shown remorse for their
actions. (Doc. 310 at 3-4.) The Court finds that statements of
remorse are wholly irrelevant to the issues in this case, and
Plaintiffs' motion is GRANTED on this issue. Plaintiffs will also
13
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 14 of 25
be restricted from arguing that Defendants have not apologized or
shown remorse. Plaintiffs' motion is also GRANTED to the extent
they seek to exclude Golden Rule arguments. (Doc. 297 at 3.)
iii. Insurance Ra-tes:
Plaintiffs move to exclude references to the trial outcome
possibly effecting insurance rates. (Id.) Defendants do not oppose
this request. (Doc. 310 at 4.) Plaintiffs' motion is GRANTED to
the extent they seek to exclude any reference to the possibility
that insurance rates will be changed as a result of the jury's
verdict in this case.
iv. Suggestion of Irrelevance of Damages:
Plaintiffs move to exclude any suggestion by Defendants to
the effect that ^'money
won't
undo the injury and
damage the
plaintiffs may have sustained[.]" (Doc. 297 at 3.) Defendants argue
that this motion is premature because such evidence may be relevant
if Plaintiffs open the
door to the issue. (Doc.
310 at
4.)
Plaintiffs' motion is DENIED WITHOUT PREJUDICE on this issue, but
Defendants shall not make any suggestion of this type without first
obtaining express permission from the Court away from the jury.
III. DEFENDANTS' MOTION IN LIMINE
Defendants have also filed an omnibus motion in limine seeking
the exclusion of several categories of evidence and arguments at
trial. (Doc. 304.) Plaintiffs have partially opposed Defendants'
14
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 15 of 25
motion. (Doc. 321.) For the following reasons. Defendants' motion
is GRANTED IN PART and DENIED IN PART.
a. Exhibits Identified as Irrelevant
Defendants move to exclude eight exhibits that Plaintiffs
intend to introduce at trial as irrelevant. (Doc. 304 at 3-4.)
The Court's rulings on the admissibility of these exhibits are as
follows:
i. PIO - An organizational chart for Corizon Health:
Defendants'
motion
is DENIED
to
the
extent
they seek
to
prohibit Plaintiffs from using the Corizon Health organizational
chart. As long as the chart is authenticated, the Court finds this
simple
chart
could
be
helpful
to
jurors
and
would
have
no
prejudicial effect.
ii. Pll, P14, and P57 - Corizon Health job descriptions:
Defendants object to Plaintiffs using the job descriptions of
three Corizon employees who are not defendants in this case. (Doc.
304 at 5.) It is not clear whether these job descriptions could
become relevant at trial. Accordingly, the Court DENIES WITHOUT
PREJUDICE Defendants' motion to exclude these job descriptions.
iii. P17 - Corizon Health's 2013 response to a Request for
Proposal from Chatham County:
Defendants
move
to
exclude
Plaintiffs'
use
of
Corizon
Health's 2013 proposal to provide inmate healthcare services for
the Chatham County Detention Center. (Doc. 304 at 5-6.) Although
15
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 16 of 25
it
appears
to
duplicative
Defendants'
the
Court
that
information,
motion
to
it
this
is
exclude
document
still
this
likely
potentially
document
is
contains
relevant.
DENIED
WITHOUT
PREJUDICE.
iii. PI8 - Par-tnership Memo:
Plaintiffs
have
agreed to
withdraw
this exhibit for all
purposes except impeachment. (Doc. 321 at 2.) Defendants' motion
to exclude this document is GRANTED.
iv. P58 - Dr. Augushin's personnel file:
Defendants argue that Dr. Augustin's personnel file should be
excluded
because
it
is
irrelevant
to
his
treatment
of
Mr.
Alexander. (Doc. 304 at 8.) Because Plaintiffs do not offer any
reason why the personnel file is relevant their claims. Defendants'
motion to exclude it is GRANTED.
V. P63 - Printout of Corizon Health's Webpage:
Defendants seek to exclude a printout of a promotional page
from
Corizon
Health's
website
as
lacking
authenticity
and
relevancy. (Doc. 304 at 9.) Plaintiffs ask the Court to defer
ruling on this exhibit as the page may be relevant to Corizon
Health's duty to train nurses and speciality in providing medical
treatment in correctional facilities. (Doc. 321 at 3.) Although
relevancy
of
the
webpage
is
unclear,
the
Court
will
allow
Plaintiffs to make their argument at trial. Defendants' motion to
exclude the webpage is DENIED WITHOUT PREJUDICE.
16
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 17 of 25
b. Evidence Regarding Corizon Health^ s Performance Under the
Services Contract
Defendants
seek
to
prevent
Plaintiffs
evidence of Corizon Health's performance
from
introducing
under their services
contract with Chatham County. (Doc. 304 at 9-13.) Defendants'
motion to exclude this category of evidence is overbroad, and
therefore, DENIED WITHOUT PREJUDICE.
c. Evidence Regarding the Ambulance Contract
Defendants move to exclude evidence that Corizon Health had
a contract with an ambulance company. (Doc. 304 at 13.) Defendants
contend that the document is irrelevant because the Court already
ruled that Dr. Augustin's decision to send Mr. Alexander by car to
the hospital instead of by emergency medical service did not
constitute deliberate indifference. (Id.) Yet, the Court did not
rule whether Dr. Augustin's decision constituted negligence, a
finding requiring a lower standard of proof, because Dr. Augustin
did not move for summary judgment on those claims. Because the
ambulance contract could be relevant to Plaintiffs' claims against
Dr. Augustin, Defendants' motion to exclude it is DENIED WITHOUT
PREJUDICE.
d. Evidence of Corizon Health's Corporate Finances
Defendants
move
to
exclude
evidence
of
Corizon
Health's
corporate finances. (Doc. 304 at 13-14.) Plaintiffs state that
they do not anticipate submitting evidence of Corizon Health's
17
Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 18 of 25
corporate
finances
generally.
(Doc.
321
at
6.)
Plaintiffs,
however, contend that Corizon Health's income from work at the
Chatham County Detention Center (CCDC) may be relevant to show
Corizon Health
received consideration for their services. (Id.)
Plaintiffs also state that evidence of Corizon Health's financial
resources may be relevant to rebut a defense argument that Corizon
Health lacked the resources to provide certain services. (Id.) It
does not appear the parties dispute whether Corizon Health received
consideration
under
the
services
contract,
and
any
evidence
regarding the amount of income received is both irrelevant and
prejudicial. Fed. R. Evid. 403. Accordingly, Defendants' motion to
exclude
evidence
of
Corizon
Health's
corporate
finances
from
Plaintiffs' case-in-chief is GRANTED. Plaintiffs may still use the
evidence for impeachment purposes if appropriate.
e. Relative Wealth of the Parties
Based on the Plaintiffs' consent (Doc. 296 at 2), Defendants'
motion to exclude evidence of the parties' relative wealth is
GRANTED.
f. Corizon Health's Budget
Defendants
move
to
exclude
evidence
of
Corizon
Health's
budget for providing health care at the CCDC. (Doc. 304 at 15-16.)
Plaintiffs
contend
they
will
only
offer
this
evidence
for
impeachment purposes and ask the Court to defer ruling on this
issue. (Doc. 321 at 7.) The Court will take Plaintiffs at their
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Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 19 of 25
word,
and
Defendants'
motion
to
exclude
this
evidence
from
Plaintiffs' case-in-chief is GRANTED.
g. Previous Reports of Death and Injury
Defendants move to exclude evidence of previous injuries or
deaths at the CCDC. (Doc. 304 at 15.) Plaintiffs' state they do
not
anticipate
the
introduction
of
such
evidence
unless
for
impeachment purposes. Therefore, Defendants' motion to exclude
this evidence from Plaintiffs' case-in-chief is GRANTED
h. Previous Complaints Regarding Medical Services Provided at
CCDC
Based on Plaintiffs' consent (Doc. 296 at 2),
Defendants'
motion to exclude evidence regarding previous complaints about
medical services at the CCDC is GRANTED.
i. Media Coverage of Corizon Health
Based on Plaintiffs' consent (Doc. 321 at 7),
Defendants'
motion to exclude evidence of media coverage about Corizon Health
is GRANTED.
j. Evidence
about the Impact of Mr. Alexander's
Death
on
Witnesses
Defendants seek to exclude testimony from witnesses regarding
the impact of Mr. Alexander's death on them. (Doc. 304 at 18-19.)
Plaintiffs agree that they can not ask damages witnesses about the
effect Mr. Alexander's death may have had on them. (Doc. 321 at
8.) Nevertheless, Plaintiffs oppose a broad ruling on the issue
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Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 20 of 25
because their witnesses' testimony may be viewed both as describing
the witness's loss as well as the value Mr. Alexander's life. (Id.)
Because the exact nature of this testimony is impossible to predict
before trial. Defendants' motion is DENIED WITHOUT PREJUDICE, but
Plaintiffs are
warned that any attempts to make inappropriate
emotional appeals through their witnesses will not be tolerated.
k. Lay Witness Opinions
Defendants seek to exclude any testimony from any lay witness
regarding the cause of Mr. Alexander's death. (Doc. 304 at 19-20.)
Plaintiffs agree that lay witnesses cannot opine on causation but
ask the Court to defer ruling on the issue. (Doc. 321 at 8-9.)
Plaintiffs have provided no reason for the Court to defer ruling
on this issue. Defendants' motion to exclude lay witness testimony
on causation is GRANTED.
1. Dr. Hudson's Opinions
Defendants seek to exclude the opinion testimony of Dr. Linda
Hudson. (Doc. 304 at 20.) Defendants argue that the Court has
already ruled that Dr. Hudson is not qualified to testify about
any of the matters for which she was identified as an expert
witness. (Id. at 20.) However, as Plaintiffs note, the Court ruled
that Dr. Hudson was qualified to opine on Dr. Augustin's standard
of care. (Doc. 223 at 13.) It also appears that Defendants had
notice that Dr. Hudson would give an opinion on this issue. (Doc.
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Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 21 of 25
80 at 7.) Accordingly, Defendants' motion to entirely exclude Dr.
Hudson's opinion testimony is DENIED WITHOUT PREJUDICE,
m. Bifurcation and Single Recovery
Based on Plaintiffs' consent (Doc. 321 at 9), the Court GRANTS
Defendants'
motion
to
bifurcate
trial
for
the
purpose
from
asking
of
determining the amount of punitive damages only,
n. Hypothetical Questions for Lay Witnesses
Defendants
seek
to
prohibit
Plaintiffs
lay
witnesses hypothetical questions. (Doc. 304 at 23.) It is not clear
why Plaintiffs want a deferred ruling on this issue since they
agree that lay witnesses may not give opinions based on assumed
facts. (Doc. 321 at 9 (citing United States v. Henderson, 409 F.3d
1293, 1300 (11th Cir. 2005)). Defendants' motion to exclude these
questions is GRANTED.
o. Conclusory Testimony that Dr. Augustin was Deliberately
Indifferent
Based on Plaintiffs' consent (Doc. 31 at 10), Defendants'
motion to
exclude
conclusory testimony that
Dr. Augustin
was
deliberately indifferent is GRANTED,
p. Medical Literature
Defendants
essentially
request
the
Court
to
follow
the
requirements of Federal Rule of Evidence 803(18) governing the use
of medical literature at trial. (Doc. 304 at 24.) This request,
although unnecessary, is GRANTED.
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q. Reptile Lawyer Arguments
Defendants ask the Court to prevent Plaintiffs from making so
called "reptile lawyer arguments" that are meant to elicit fear in
the jurors by reframing issues of legal liability as issues of
community safety. (Doc. 304 at 25-27.) The Court has considered
Defendants' arguments and finds that a blanket ruling on this issue
would be inappropriate at this time. Defendants' motion is DENIED
WITHOUT PREJUDICE on this issue.
r. Arguments About Sending a Message or the Conscience of the
Community
Defendants also seek to exclude arguments that jurors are
supposed to act as the "conscience of the community" or "send a
message" through their verdict. (Doc. 304 at 27-28.) Plaintiffs
contend that they will not ask the jury to "send a message," but
argue
that
referring
to the
jury
as
the "conscience
of the
community" has been allowed in many courts and merely reminds the
jury of its legal responsibility. (Doc. 321 at 12-13.) The Court
DENIES WITHOUT PREJUDICE Defendants' motion but warns Plaintiffs
that attempts to inflame the jury will not be tolerated,
s. Evidence of Mr. Alexander's Good Behavior
Defendants seek to exclude evidence that Mr. Alexander was a
"model detainee" at the CCDC as inadmissible character evidence.
(Doc. 304 at 28.) Plaintiffs argue that the evidence
will be
relevant to rebut Defendants' arguments that Mr. Alexander made
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Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 23 of 25
unreliable medical complaints. (Doc. 321 at 13.) Federal Rule of
Evidence 404(a)(1) prohibits the use of character evidence ^'to
prove that on a particular occasion the person acted in accordance
with the character or trait." In the Court's opinion. Plaintiffs
do not intend to offer evidence of Mr. Alexander's behavior while
incarcerated to prove that Mr. Alexander was acting honestly when
he complained at the time of the incident. Instead, Plaintiffs
wish
to
use
the
evidence
to
rebut
Defendants'
claims
that
the
Corizon Health medical providers had a reason not to take Mr.
Alexander's complaints seriously. Accordingly, the Court finds
this
evidence
Defendants'
is
motion
not
inadmissible
is
DENIED
under
WITHOUT
Rule
PREJUDICE
404(a)(1),
on
this
and
issue.
However, this evidence may not be relevant unless Defendants open
the door on this issue.
t. Speculation by Dr. Mendel
Defendants
seek
to
exclude
expert
witness
Dr.
Lawrence
Mendel's opinion that Mr. Alexander was ^^confused" when he told
Mr. Dambach that he had been put under a voodoo spell. (Doc. 304
at
28-29.)
In
his
deposition,
Mr.
Mendel
states
that
Mr.
Alexander's report of being ^'subject to voodoo" was ^'one possible
sign of confusion" which, ^^in the face of a dangerously elevated
blood pressure[,] was an indication" that Mr. Alexander needed to
be evaluated for an altered mental state. (Doc. 82 at 48-49.) The
Court does not find that Dr. Mendel's opinion is speculative. Dr.
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Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 24 of 25
Mendel was merely opining on the factors that would have alerted
someone
to
the
seriousness
of
Mr.
Alexander's
condition.
Accordingly, Defendants' motion to exclude Dr. Mendel's opinion is
DENIED WITHOUT PREJUDICE.
u. Evidence that Documentation Issues are Malpractice
Defendants
employees
failed
seek
to
to
exclude
properly
evidence
document
that
their
Corizon
treatment
Health
of
Mr.
Alexander because they have not disclosed expert testimony that
shows any documentation issue caused Mr. Alexander's injury. (Doc.
304 at 29-30.) As Plaintiffs highlight. Dr. Mendel opined multiple
times
that
the
inadequate
documentation
of
Mr.
Alexander's
condition contributed to the delay in his treatment. (Doc. 321 at
17.) Defendants' motion to exclude this evidence is DENIED WITHOUT
PREJUDICE.
V. Demonstrative Exhibits
Lastly,
Defendants
argue
that
Plaintiffs
should
not
be
permitted to introduce demonstrative exhibits into evidence. (Doc.
304
at
30.)
Defendants
do
not
oppose
Plaintiffs
showing
the
drawings to the jury at appropriate times during trial. Plaintiffs
argue that one of the demonstrative exhibits, a chart showing the
timeline of the events in question, should be permitted to go to
the jury as an admissible summary chart. (Doc. 321 at 18 (citing
United States v. Norton, 867 F.2d 1354, 1362 (11th Cir. 1989).)
Considering the caution with which ^^summaries are to be utilized.
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Case 4:18-cv-00099-WTM-CLR Document 348 Filed 02/08/22 Page 25 of 25
given the possibilities for abuse[,]" Norton, 867 F.2d at 1326,
the Court GRANTS Defendants' motion to exclude these exhibits from
evidence. Plaintiffs may still show the exhibits to the jury at
appropriate times during trial to illustrate their account of the
timeline in this case.
CONCLUSION
The Court's foregoing rulings shall govern the presentation
of evidence at trial.
SO ORDERED this
day of February 2022.
WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
25
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