Hedgepath v. Lee County, Kentucky et al

Filing 185

MEMORANDUM OPINION AND ORDER: Pla's 182 MOTION to Strike Dft's 181 Supplemental Designation of Experts is DENIED. Signed by Judge Danny C. Reeves on 07/17/2013. (KLB) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
MARY HEDGEPATH, Executor of the
Estate of Shannon D. Reed, Deceased,
Plaintiff,
V.
LEE COUNTY, KENTUCKY, et al.,
Defendants.

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Civil Action No. 5: 10-83-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is before the Court on Plaintiff Mary Hedgepath’s motion to strike the
defendants’ supplemental designation of experts and amended report of expert Robert Powell.
[Record No. 182] She seeks to exclude any reference to the opinions disclosed in the
defendants’ June 14, 2013 filing. For the reasons set forth below, the Court will deny the relief
requested by Hedgepath.1
This matter arises from the death of Shannon Reed from an overdose while in custody
at the Three Forks Regional Jail in Beattyville, Kentucky. Reed’s mother, Mary Hedgepath,
filed suit against several Kentucky counties, the Three Forks Regional Jail, and nine Three Forks
employees in their individual and official capacities. [Record No. 1] The employees moved for
summary judgment on the grounds of qualified immunity, and the Court denied their motions.

1
Under the Local Rules, the time within which the plaintiff may file a reply to the defendants’
response has not yet run. However, after reviewing the plaintiff’s motion, and the Sixth Circuit’s opinion,
the Court concludes that a reply is not needed to resolve the issue currently before the Court.

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[Record Nos. 137, 140, 153] These defendants appealed the Court’s denial of qualified
immunity and, on April 5, 2013, the Sixth Circuit affirmed. [Record Nos. 157, 171] Reading
the Three Forks Regional Jail medical emergency policy together with the regulations
promulgated by the Kentucky Department of Corrections, the Sixth Circuit found that the jailers
had a duty to “ensure the safety of intoxicated detainees by checking on them every twenty
minutes to make sure they were conscious.”2 [Record No. 171, p. 9] Because this duty is
ministerial in nature, the court concluded that the defendants were not entitled to qualified
immunity.
Following the retirement of United States District Judge Jennifer B. Coffman, this action
was transferred to the undersigned pursuant to General Order No. 13-3. [Record No. 170] After
the interlocutory appeal was resolved, this Court entered an amended scheduling order on May
16, 2013, establishing new discovery deadlines in this action. [Record No. 177] On June 14,
2013, the defendants timely filed a second supplemental expert witness disclosure, designating
two individuals as experts concerning “various correctional issues.”

[Record No. 181]

Specifically, these experts intend to testify that the regulations and jail policy “were never
intended to be read together and have no mutual interactive effect,” and therefore that jailers are
“not trained to wake sleeping inmates at periodic intervals.” [Id., p. 2] Additionally, the

2
The Sixth Circuit’s opinion does not, as the defendants maintain, require “that deputy jailers must
wake sleeping inmates at 20-minute intervals to determine if they are unconscious or merely sleeping.”
[Record No. 183, p. 4] Rather, the court stated that the duty to check intoxicated detainees every twenty
minutes is ministerial even though it involves “some exercise in judgment” because “whether an individual
is unconscious — as opposed to sleeping or dead — is an objective factual question that can be resolved by,
for example, attempting to wake the individual.” [Record No. 171, p. 10 (emphasis supplied)] Indeed, the
factual background of this case illustrates two other methods of carrying out the duty through observation:
at one point, Reed was “snoring loudly enough to be heard outside of the cell,” and later the deputy jailers
saw him “breathing and changing positions on the mat.” [Id., p. 3]

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defendants have provided an amended report from their previously-disclosed expert, which states
in part that “[t]here is no policy that requires deputies to make sure that an inmate is conscious
and not in need of medical attention as indicated in the Sixth Circuit ruling.” [Record No. 181-1,
p. 1] This report also provides information about the usual methods for detecting “symptoms
of distress” in inmates. [Id.]
Hedgepath requests that the Court strike these filings on the grounds that the defendants
are attempting to use these expert opinions to “attack, and to encourage to the Court and the jury
to disregard, the Sixth Circuit’s ruling in — and the law of — this case.” [Record No. 182, p. 3]
She also argues that the proposed expert opinions are inadmissible because they address matters
of law and policy, matters which are not properly presented to a jury. The defendants counter
that Hedgepath “exaggerates the breadth and scope of the appellate court’s ruling.” [Record No.
183, p. 1] Therefore, they maintain that the Sixth Circuit’s opinion does not render their experts’
opinions irrelevant to the resolution of the remaining issues in this action.
The defendants are correct that, due to the procedural posture of the interlocutory appeal,
the Sixth Circuit relied on this Court’s conclusions regarding the regulatory requirements for jail
employees, and did not rule on any factual questions in this case. [Record No. 171, pp. 5-6] The
court specifically stated that “[t]o the extent that the Deputy Jailers assert that the policy does
not apply to them, question the timing of when Reed became unconscious, or dispute the District
Court’s findings on the terms of the jail’s policy on unconscious inmates, these are factual issues
that cannot be resolved at this stage of the litigation.” [Id., p. 9 n.2] Therefore, the Sixth

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Circuit’s opinion does not foreclose the admission of evidence concerning the application of the
policy to the facts of this case.
The defendants also argue that the expert opinions are necessary because Hedgepath
seeks punitive damages, and thus the parties will be required to present evidence regarding the
defendants’ intent. See KRS § 411.184(2). As a result, expert testimony that “the individual
defendants were not trained to monitor inmates in the manner set forth by the Sixth Circuit” will
be “relevant to the question of their intent to harm Shannon Reed or their indifference to his
needs.” [Record No. 183, p. 3] Further, the defendants contend that the expert opinions will be
relevant to Hedgepath’s claims for negligence and gross negligence. In light of the Sixth
Circuit’s clear refusal to state an opinion on the facts of this case, the Court rejects Hedgepath’s
argument that the proposed expert opinions are irrelevant and “invade[] the province of the
Court.” [Record No. 182, p. 3] It is not appropriate at this time to strike the defendants’
supplemental disclosure in its entirety. To the extent that Hedgepath’s motion indicates her
concerns about the admissibility of certain portions of the expert opinions, she is not prevented
from raising those specific challenges at a later stage in the litigation. [See Record No. 182,
pp. 3-4 (citing Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009); Bd. of Trustees, Sheet Metal
v. Padadium Equity, 722 F. Supp. 2d 845, 853 (E.D. Mich. 2010)).]
Accordingly, it is hereby
ORDERED that Plaintiff Mary Hedgepath’s Motion to Strike Defendants’ Supplemental
Designation of Experts [Record No. 182] is DENIED.

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This 17th day of July, 2013.

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