Rose v. Shelby County, Kentucky et al

Filing 141

MEMORANDUM OPINION & ORDER: 1) 118 Motion to Exclude is DENIED AS MOOT. 2) 119 Motion to Exclude is DENIED. 3) 120 Motion to Exclude is DENIED. Signed by Judge Gregory F. VanTatenhove on 3/11/2020. (SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
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Civil No. 3:17-cv-00097-GFVT-EBA
Plaintiffs,
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v.
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MEMORANDUM OPINION
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&
SHELBY COUNTY, KENTUCKY, et al.,
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ORDER
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Defendants.
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*** *** *** ***
DONNITA ROBINSON,

This matter is before the Court on three separate defense motions to exclude the
testimony of Plaintiffs’ expert witness, Mr. Cameron Lindsay. [R. 118; R. 119; R. 120.] In their
respective motions, Defendants claim that Mr. Lindsay’s opinion does not meet the admissibility
standards of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993). For the reasons that follow, the Defendants’ motions are DENIED.
I
Admissibility of expert testimony is governed specifically by Federal Rule of Evidence
702, which states:
A witness who is qualified as an expert 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. From Rule 702 comes a three-part test for admitting expert testimony. In re
Scrap Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). First, the proposed expert

must have the requisite qualifications, whether it be through “knowledge, skill, experience,
training, or education.” Id. at 529 (quoting Fed. R. Evid. 702). Second, the testimony must be
relevant, meaning that it “will assist the trier of fact to understand the evidence or to determine a
fact in issue.” Id. (quoting Fed. R. Evid. 702). Third, the testimony must be reliable. Id.; see also
Daubert, 509 U.S. at 590.
The first prong of the test requires courts to ensure as a threshold matter that the proposed
expert is qualified to render his or her opinion. Here, courts are to consider not “the
qualifications of a witness in the abstract, but whether those qualifications provide a foundation
for a witness to answer a specific question.” Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th
Cir. 1994). This requirement has always been treated liberally but, even so, this “does not mean
that a witness is an expert simply because he claims to be.” Pride v. BIC Corp., 218 F.3d 566,
577 (6th Cir. 2000) (internal quotations and citations omitted).
As for the second prong of the test, district courts “must ensure that the proposed expert
testimony is relevant to the task at hand and will serve to aid the trier of fact.” United States v.
Smithers, 212 F.3d 306, 313 (6th Cir. 2000). The Supreme Court in Daubert referred to this
prong as the “fit” requirement. See id.; Daubert, 509 U.S. at 591–93. Because “scientific
validity for one purpose is not necessarily scientific validity for other, unrelated purposes,”
courts must consider whether a particular expert’s testimony will truly assist the trier of fact to
understand the evidence in the case at hand. Daubert, 509 U.S. at 591.
Finally, the Court must determine whether the testimony is reliable. Rule 702 provides a
number of standards by which a district court in its gatekeeper role is to gauge reliability of
expert testimony. A court should look to whether the testimony is based upon “sufficient facts or
data;” whether it is the “product of reliable principles and methods;” and whether the expert “has

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applied these principles or methods reliably to the facts of the case.” In re Scrap Metal., 527
F.3d at 529 (quoting Fed. R. Evid. 702). Additionally, in determining reliability, a district court
is to consider “such factors as testing, peer review, publication, error rates, the existence and
maintenance of standards controlling the technique's operation, and general acceptance in the
relevant scientific [or technical] community.” United States v. Langan, 263 F.3d 613, 621 (6th
Cir. 2001) (citing Daubert, 509 U.S. at 593–94). The reliability inquiry is a flexible one, and the
above factors are not a “definitive checklist or test.” Daubert, 509 U.S. at 593.
District courts are given broad discretion in determining whether a particular expert’s
testimony is reliable. See, e.g., Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 672 (6th Cir. 2010);
see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (“[T]he trial judge must have
considerable leeway in deciding in a particular case how to go about determining whether
particular expert testimony is reliable.”). Notably, in exercising this discretion, a court must be
careful not “to impinge on the role of the jury or opposing counsel.” Burgett v. Troy-Bilt LLC,
579 F. App'x 372, 377 (6th Cir. 2014). Instead, “vigorous 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.” Daubert, 509 U.S. at 596.
II
Defendant Votaw, Defendant Quijas, and the Shelby County Defendants 1 each move
separately to exclude Mr. Lindsay’s expert testimony in this case. [R. 118; R. 119; R. 120.]
Although the separate motions vary slightly, all three sets of Defendants challenge whether Mr.

1

“Shelby County Defendants” means those Defendants who are not alleged to have committed
the sexual abuse itself but who Plaintiffs seek to hold liable otherwise: Shelby County,
Kentucky; Bobby Waits, Tony Aldridge, Larry Donovan, and Richard Foltmann.
3

Lindsay is qualified to offer testimony, the first prong of the Rule 702 test. As such, the Court
will first examine Mr. Lindsay’s qualifications. The Court will then consider the second and
third prongs of the Rule 702 test—the relevancy and reliability of Mr. Lindsay’s testimony.
A
The first consideration in determining whether Mr. Lindsay is qualified is determining
what Plaintiffs intend Mr. Lindsay to testify about. Plaintiffs state that Mr. Lindsay was retained
to “offer opinions regarding Defendants’ conduct relevant to Quijas’ and Votaw’s sexual abuse.”
[R. 126.] Review of both Plaintiffs’ response to the motions to exclude and Mr. Lindsay’s expert
report indicate that, more specifically, Mr. Lindsay was retained to testify concerning the failure
to detect and prevent the alleged sexual abuse, as mainly relevant to the theories of liability
against the Shelby County Defendants. [See R. 126 at 4 (“There is no legitimate question
whether the jury would be well served by his insights on how people who work in, supervise,
and operate correctional facilities can detect and prevent staff-on-inmate sexual abuse.”).]
Indeed, nearly the entirety of Mr. Lindsay’s expert report opines on the allegedly deficient
culture and “overall lack of organizational control, knowledge, training, and leadership” within
SCDC. [R. 56-1 at 22.]
The question thus becomes whether Mr. Lindsay is qualified to testify about these
specific topics. The answer is yes. Mr. Lindsay’s expert report and CV represent that prior to
retirement in 2014 he worked in corrections for 25 years, with two appointments as acting
warden of a correctional facility and three separate appointments as a warden. [R. 56-1 at 1; R.
56-2 at 3–4.] Notwithstanding this experience, Defendants specifically attack Mr. Lindsay’s
credentials to testify regarding “staff/inmate sexual conduct.” [See R. 120 at 2.] To this point,
Defendant Quijas argues further that “Lindsay has authored no work or publications concerning

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sexual conduct occurring in the correctional context” and “has never offered any testimony at
trial concerning any such conduct.” 2 [R. 127 at 1.]
The Defendants’ line of argument is unavailing. Simply because Mr. Lindsay does not
claim certifications or publications in this specific area does not mean that, as an experienced
correctional officer and former warden, he cannot speak to the normal procedures and safeguards
in place to prevent such conduct. Moreover, there is no requirement that an expert have testified
at a previous trial on the same topic in order to be qualified. The Court is confident that, based
on his experience, Mr. Lindsay can offer well-informed insight on how employees typically
work and supervise inmates and fellow officers within penal institutions. Naturally, this insight
would encompass the typical measures in place to detect and prevent sexual abuse—presumably
an important consideration in any correctional facility. Mr. Lindsay is qualified to offer
testimony in this case.
B
The Court will now consider the second prong—whether Mr. Lindsay’s testimony is
“relevant to the task at hand and will serve to aid the trier of fact.” Smithers, 212 F.3d at 313.
Here, the analysis must be Defendant-specific to some degree. In this case, the theories of
liability against the various Defendants vary significantly. On the one hand, Plaintiffs seek to
hold Defendants Quijas and Votaw liable for sexual abuse that those two allegedly perpetrated.
[See, e.g., R. 9 at ¶¶ 62–63.] On the other, Plaintiffs seek to hold the Shelby County Defendants
liable not for sexually abusing the Plaintiffs but for allowing the alleged abuse to occur. Id. at ¶¶

2

While briefly challenging Mr. Lindsay’s qualifications, the Shelby County Defendants and
Defendant Votaw’s motions to exclude mainly attack the relevancy and reliability of his
testimony. [See R. 118 at 3–6; R. 119 at 2–6.]
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62–63. It may very well be that Mr. Lindsay’s testimony is helpful to the trier of fact in
determining liability as to one set of Defendants, but not the other. See Daubert, 509 U.S. at 591.
1
The Court will first consider whether Mr. Lindsay’s testimony is relevant as to the Shelby
County Defendants. At this point, the Court notes that, pursuant to the Memorandum Opinion
and Order entered contemporaneous to this Order, all § 1983 claims against the Shelby County
Defendants are dismissed. Aside from the claims against Defendants Quijas and Votaw, the only
claims that remain against the individual Shelby County Defendants are the state law claims.
More specifically then, the Court must assess whether Mr. Lindsay’s testimony is relevant to the
state law claims against these individual Defendants.
In challenging the relevancy of his opinion, the Shelby County Defendants argue that
“Mr. Lindsay is being presented to offer opinions using an inapplicable standard . . ..” [R. 119 at
8.] This argument is based on Mr. Lindsay’s admission that he did not consider Kentucky
Department of Corrections standards in assessing Defendants’ conduct but, instead, mainly
considered American Correctional Association standards. See id. at 7–8. However, none of the
defense motions provide an explanation as to why an opinion formed when viewing Defendants’
conduct through the lens of ACA standards is irrelevant to determining whether Defendants
acted within the standard of care. Nor is there any authority cited to support a proposition that
compliance with Kentucky Department of Corrections standards conclusively establishes
compliance with the standard of care for correctional officers in Kentucky jails. On this point,
Plaintiffs represent that “[n]othing in the [Kentucky Jail] Standards purports to establish the
ultimate level of care with which Kentucky jails must comply.” [R. 126 at 6.]
In sum, the Shelby County Defendants’ motion fails to provide the Court with an

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explanation of why Mr. Lindsay’s reliance on ACA standards renders his testimony irrelevant.
Mr. Lindsay’s testimony is relevant as to Plaintiffs’ state law claims against the Shelby County
Defendants.
2
Next, the Court will briefly consider whether Mr. Lindsay’s testimony is relevant as to
Defendant Votaw. Mr. Votaw’s motion to exclude notes that Mr. Lindsay’s report included only
“one specific opinion relating to Robinson’s allegations against Votaw.” [R. 118 at 4.] The
identified opinion being that Plaintiff Robinson “credibly alleges that Patrick Votaw . . . sexually
abused her in late 2016.” [Id. (citing R. 56-1 at 2).] Mr. Votaw argues that this specific opinion
should be excluded as it is the jury’s responsibility to determine the credibility of witnesses. Id.
at 3. In response, Plaintiffs agree that credibility determinations are within the province of the
jury and represent that “Plaintiffs will not elicit from Lindsay at trial any opinion regarding
whether Plaintiffs’ allegations are credible.” [R. 126 at 12.] Given the limited scope of
Defendant Votaw’s motion to exclude, and the subsequent concession from Plaintiffs’, it is
unnecessary to further consider Mr. Lindsay’s testimony as it relates to Mr. Votaw. The lone
issue is no longer contested and, as a result, Mr. Votaw’s motion is DENIED AS MOOT.
3
The Court will next consider whether Mr. Lindsay’s testimony is relevant as it concerns
Mr. Quijas’ potential liability. On this issue, Mr. Quijas appears to argue solely that, although
relevant, Mr. Lindsay’s testimony is unduly prejudicial and amounts to “cumulative testimony.”
[See R. 120 at 4 (“Setting aside the Daubert test of Rule 702 . . ..”).] In large part, Mr. Quijas is
concerned that, in explaining his opinion as to the Shelby County Defendants’ liability, Mr.
Lindsay will necessarily describe and discuss Mr. Quijas’ misconduct, to which Mr. Quijas’ has
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already admitted. Id. As noted by Plaintiffs’, Mr. Quijas provides no authority in support of his
argument to exclude based on overall “cumulativeness.” [See R. 126 at 11.] In his reply brief,
Mr. Quijas acknowledges that the “authority is [Rule] 403 itself.” [R. 130 at 2.]
Logically, to provide a foundation for his opinion, Mr. Lindsay must discuss the facts of
the case. To prohibit such an explanation would be to undercut the credibility of Mr. Lindsay’s
testimony from the start. Moreover, any prejudice to Mr. Quijas is unclear. As noted by Mr.
Quijas, he has already admitted to the conduct. Id. To the extent Mr. Quijas might disagree with
Mr. Lindsay’s characterization of the facts at trial, he is entitled to cross-examination to address
such a concern. Mr. Quijas’ cumulativeness argument is unavailing and does not change the
Court’s determination that Mr. Lindsay’s testimony is generally relevant.
In sum, Mr. Quijas has not provided the Court any convincing legal basis for exclusion of
Mr. Lindsay’s testimony either as it relates to the claims against Mr. Quijas or the other
Defendants. Mr. Quijas’ arguments within his motion to exclude are limited to attacking Mr.
Lindsay’s qualifications and the preceding cumulativeness argument. The Court has now
rejected both arguments and, as such, Mr. Quijas’ motion to exclude must be DENIED.
C
Lastly, the Court will now consider the third prong of Rule 702—whether Mr. Lindsay’s
testimony is reliable. As the Shelby County Defendants’ motion is the only to attack reliability,
the present analysis will be limited to the arguments within that motion. Their reliability
challenge amounts to an argument that Mr. Lindsay’s opinion is not “based upon ‘sufficient facts
or data.’” In re Scrap Metal., 527 F.3d at 529 (quoting Fed. R. Evid. 702). Defendants argue that
Mr. Lindsay’s deposition testimony shows “he lacked an abundance of critical information prior
to offering an opinion in this case.” [R. 119 at 5.] More specifically, Defendants point out that

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Mr. Lindsay did not review, among other things, the deposition transcripts of Plaintiff Mercedes
Castillo or Defendant Patrick Votaw or the SCDC training materials. Id. at 1–2.
The Court acknowledges that some seemingly important items are missing from Mr.
Lindsay’s list. But a brief review of Mr. Lindsay’s report shows that he did review a significant
amount of relevant materials to provide a basis for his opinion in this case, in addition to
conducting a site visit of SCDC. [See R. 56-1 at 6–10.] After review of Mr. Lindsay’s report,
and the materials relied upon, the Court finds that exclusion of his testimony on the “reliability”
ground is unwarranted.
The Shelby County Defendants’ objections go more to the credibility and weight of the
testimony rather than its admissibility. While Defendants may have a point that these materials
would have been helpful to Mr. Lindsay in developing an informed opinion, the failure to review
the materials is not a basis for wholesale exclusion. Instead, the proper means of attacking this
testimony is by means of “[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof . . ..” Daubert, 509 U.S. at 596. Dr. Lindsay’s
testimony is sufficiently reliable and will not be excluded. The Court has now rejected all
arguments put forth by the Shelby County Defendants in support of their motion to exclude and,
as such, their motion must also be DENIED.
III
At the present hour the Court sees no basis for the wholesale exclusion of Dr. Lindsay’s
anticipated testimony. Should this case go to trial, Plaintiffs will be allowed to call him as an
expert. Accordingly, and the Court being otherwise sufficiently advised, it is hereby
ORDERED as follows:
1. Defendant Patrick Votaw’s Motion to Exclude the expert testimony of Mr. Cameron
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Lindsay [R. 118] is DENIED AS MOOT;
2.

The Shelby County Defendants’ Motion to Exclude the expert testimony of Mr.

Cameron Lindsay [R. 119] is DENIED; and
3.

Defendant Jason Quijas’ Motion to Exclude the expert testimony of Mr. Cameron

Lindsay [R. 120] is DENIED.

This the 11th day of March, 2020.

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