Jimenez et al v. Hopkins County, Kentucky et al

Filing 191

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 8/31/2016: The motions in limine filed by Defendant Southern Health Partners 157 and by Plaintiff 161 are GRANTED INPART AND DENIED IN PART. Defendant's objectio n to Plaintiff's witness list 158 is OVERRULED; Plaintiff's objection to Defendant's witness list 162 is SUSTAINED IN PART AND OVERRULED IN PART; Plaintiffs objection to Defendant's exhibit list 160 and Defendant's objection to Plaintiff's exhibit list 159 are SUSTAINED IN PART AND OVERRULED IN PART; no later than 1/9/2017, the parties shall file Supplemental Final Exhibit Lists; No later than 1/30/2017, counsel shall file any objections to an y exhibit. No later than 2/1/2017, counsel shall file all responses to any objections filed. No later than 3/13/2017, the parties shall file supplemental jury instructions. Defendant's motion to strike Plaintiff's untimely Daubert motions 167 is DENIED; Defendant's motion for leave to supplement its witness list 166 is GRANTED. Discovery is reopened on a limited basis to permit Plaintiff to depose JenniferBraizer. No later than 11/1/2016, Plaintiff shall depose Jennifer Braizer cc: Counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:11CV-00033-JHM
CINDY SHADRICK, Administrator of the Estate
of Tyler Butler, deceased

PLAINTIFF

v.
SOUTHERN HEALTH PARTNERS, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on various motions in limine filed by Defendant Southern
Health Partners [DN 157] and by Plaintiff [DN 161]; on Defendant’s objection to Plaintiff’s
witness list [DN 158] and exhibit list [DN 159]; on Plaintiff’s objection to Defendant’s witness list
[DN 162] and exhibit list [DN 160]; on a motion by Defendant to strike Plaintiff’s untimely
Daubert motions [DN 167]; and on a motion by Defendant for leave to supplement its witness list
DN 166]. Fully briefed, this matter is ripe for decision.
I. BACKGROUND
This case involves the death of Mr. Tyler Butler on April 11, 2010 at the Henderson
County Detention Center (“HCDC”). HCDC contracted with Southern Health Partners (“SHP”)
to provide medical services for its inmates. SHPS separately contracted with Dr. Henry Davis to
act as HCDC medical director. Davis was not a SHP employee. SHP employed nurses and other
medical personal at HCDC. On April 8, 2010, Butler entered the jail to serve a short sentence for
a misdemeanor offense. He died three days later.
The Plaintiffs initially filed suit against Hopkins County, various HCDC employees,
Southern Health Partners, Inc., Henry Davis, M.D., Nurse Candace Moss, Nurse Renee Keller,

Nurse Betty Dawes, and Nurse Angela Pleasant. Plaintiff, Cindy (Jimenez) Shadrick,
Administratrix of the Estate of Tyler Butler, brought the action pursuant to 42 U.S.C. § 1983
alleging that the Defendants violated Butler’s rights under the Eighth, Tenth, and Fourteenth
Amendment to the Constitution of the United States by acting with deliberate indifference to his
serious medical needs while he was an inmate in HCDC. Plaintiff also asserted state law claims
for negligence, gross negligence, and the tort of outrage arising from the same conduct.
After conducting discovery, the parties filed summary judgment motions. In response to
these motions, the Court entered a Memorandum Opinion and Order [DN 112] granting summary
judgment in favor of Defendants, Southern Health Partners, Betty Dawes, Angela Pleasant, Joe
Blue, Jeremy Witherspoon, and Angela Peterson. Later, on May 8, 2014, the Court acknowledged
the Plaintiff’s acceptance of an offer of Judgment against Defendants Candace Moss and Renee
Keller. Similarly, on May 9, 2014, the Court entered an Agreed Order of Dismissal of the Claims
as Settled against Hopkins County, Jessica Bennett, Teressa Kreitler, Eric Poe, and Diana
Potocnick [DN 134].
Plaintiff appealed the Court’s grant of summary judgment in favor of SHP. The Sixth
Circuit reversed the grant of summary judgment in favor of SHP on the § 1983 claim for failure to
train or supervise its LPN nurses and on the negligence claim. Shadrick v. Hopkins County,
Kentucky, 805 F.3d 724 (6th Cir. 2015). Specifically, the Sixth Circuit held that Plaintiff “met
SHP's summary judgment motion with evidence that SHP's training program is inadequate for the
tasks the LPN nurses are required to perform, that the inadequacy resulted from SHP's deliberate
indifference, and that the inadequacy actually caused, or was closely related to, Butler's injury.” Id.
at 744. Pursuant to the Scheduling Order, the parties have now filed various motions in limine
and objections. The Court will consider them below.
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II. DISCUSSION ON MOTIONS IN LIMINE
A. Motions in Limine by Defendant Southern Health Partners, Inc. [DN 157]
1. Exclude Medical Testimony Not Stated in Terms of “Probability”
Defendant Southern Health Partners states that the Plaintiff may seek to introduce
testimony which infers that negligence or causation on the part of Defendant was a Apossibility@
rather than a Aprobability.@ Plaintiff moves the Court to preclude any such testimony. In support,
Defendant cites the principle that a plaintiff in a negligence action must prove that it is more likely
than not that the plaintiff=s injury was caused by the defendant=s negligence. See Sakler v.
Anesthesiology Assocs., P.S.C., 50 S.W.3d 210, 213B14 (Ky. App. 2001). Defendant argues that
allowing a reference to Apossibility@ would unfairly influence a jury=s determination on whether
the Plaintiffs met their ultimate burden of proof.
Plaintiff does not oppose this portion of the motion in limine to prohibit medical testimony
stated in terms of “possibility,” “not probability,” on direct examination. Thus, the motion with
respect to direct examination is GRANTED. However, Plaintiff contends that the remainder of
the motion is best addressed by objections at trial and instructions to the jury. Plaintiff contends
that requesting the Court to enter a preemptive order that would arguably bar any testimony
regarding “chance” or “possibility” on cross-examination goes too far and is too undefined and
ambiguous. Plaintiff argues that counsel is not entitled to a “safety net” to protect them from
asking a question in cross-examination that fairly opens the door to such opinions. The Court
agrees with Plaintiff. Because “[o]rders in limine which exclude broad categories of evidence
should rarely be employed,” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.
1975), Defendant’s motion with respect to cross-examination is DENIED. Any such objections
are better left for trial.
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2. Exclude Punitive Damages Testimony
Defendant next argues that the Court should not allow the Plaintiff to introduce any
evidence regarding punitive damages against it because Plaintiff has not shown that Southern
Healthcare Partners exhibited a Awanton or reckless disregard@ to Mr. Butler=s life or safety. See
Williams v. Wilson, 972 S.W.2d 260, 263 (Ky. 1998) (noting that for a punitive damages award,
“there must be first a finding of failure to exercise reasonable care, and then an additional finding
that this negligence was accompanied by a ‘wanton or reckless disregard for the lives, safety, or
property of others’”). According to Defendant, neither the expert witness disclosures of the
Plaintiff’s experts, nor their deposition testimony, contain opinions that the Defendant’s actions
were willful, wanton, malicious, grossly negligent, or reckless. Additionally, Defendant argues
that KRS § 411.184(3) does not permit punitive damages to be assessed against an employer for
the act of an agent or employee unless the employer “authorized or ratified or should have
anticipated the conduct in question.” The Court declines to exclude this evidence at this time.
The Court finds that the better approach is to consider the issue of whether a punitive damages

instruction should be submitted to the jury after it has heard all the evidence. Defendant’s motion
with respect to this issue is DENIED.
3. Exclude Standard of Care Testimony from Witnesses not Disclosed as Experts
Defendant moves the Court to prohibit medical opinion testimony by any witnesses who
have not been disclosed as experts. Plaintiff does not oppose this portion of Defendant’s motion.
Thus, the motion is GRANTED with respect to this issue.
4. Exclude Clips or Sound Bites from Depositions without Having to Provide Context
Defendant moves the Court to prohibit Plaintiffs from playing Asnippets@ or reading
portions of depositions without having to provide context for those portions. In support, Defendant
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cites Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675, 678B79 (Ky. App. 1999), for the
proposition that courts should avoid presenting evidence out of context that can confuse issues or
mislead a jury. Plaintiff does not oppose this portion of Defendant’s motion as it relates to
precluding the introduction of any clips or sound bites from depositions in opening statements.
Thus, the motion is GRANTED IN PART with respect to opening statements.
To the extent that Defendant’s motion goes to the use of deposition testimony or transcripts
as impeachment, the Court finds that Plaintiff cannot be expected to anticipate, at this time, what
portions of depositions might have to be utilized for impeachment purposes. Therefore, this
objection is better left for trial.
5. Exclude Testimony that Defendant is Insured against Liability
Defendant moves the Court to preclude the Plaintiff from introducing any evidence
regarding liability insurance coverage. In support, Defendant notes that evidence of the existence
of liability insurance is not admissible under Fed. R. Evid. 411 when it is offered to prove that a
defendant acted negligently or wrongfully. The Plaintiff does not oppose Defendant’s motion with
respect to this issue. As such, it is GRANTED.
6. Exclude Expert Testimony beyond Discovery Depositions or Disclosures
The Plaintiff has disclosed Madeline LaMarre and Deirdre Schluckebier as experts in this
matter. Defendant moves the Court to exclude any expert testimony at trial which exceeds the
scope of these experts= reports or discovery depositions. According to Defendant, to permit
further opinion testimony at trial beyond which might exceed the scope of their expert reports or
discovery depositions would unduly prejudice Defendant. Plaintiff responds that this is an issue
better handled by objections at trial. Additionally, Plaintiff states that counsel are not entitled to a
Asafety net@ to protect them from asking a question in cross-examination that fairly opens the door
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to additional opinions.
Generally, the Court agrees with Defendant that experts must testify within the scope of
their expert reports or discovery depositions. This principle is implicit in Fed. R. Civ. P.
26(a)(2)(B) and 26(e)(1), which “require disclosures in advance of trial of the bases and reasons
for an expert’s opinions.” See Asher v. Unarco Material Handling, Inc., 2008 WL 2596612, at *2
(E.D. Ky. June 25, 2008) (emphasis added). However, objections related to the scope of an
expert’s testimony are better left for trial. Thus, Defendant’s motion is DENIED.
7. Exclude Testimony regarding the Financial Condition of the Parties
Defendant moves the Court to prohibit testimony regarding any party=s current financial
condition. In support, Defendant cites Kentucky law that “the parties may not present evidence or
otherwise advise the jury of the financial condition of either side of the litigation.” Hardaway
Mgmt. Co. v. Southerland, 977 S.W.2d 910, 916 (Ky. 1998). The Plaintiff does not oppose this
portion of Defendant’s motion. As such, the motion is GRANTED with respect to this issue.
8. Exclude Introduction of Expert Reports into Evidence
Defendant moves the Court to prohibit the admission of any expert reports into evidence in
this case. In support, Defendant notes that such reports are inadmissible because they are
considered hearsay. See Wright v. Premier Elkhorn Coal Co., 16 S.W.3d 570, 572 (Ky. App.
1999). The Plaintiff does not oppose this portion of Defendant’s motion. Accordingly, it is
GRANTED.
9. Exclude Family Photographs and Videos from the Trial
Defendant moves the Court to exclude family photographs and videos from trial.
According to Defendant, the fact that Mr. Butler has a family Ais completely inconsequential to
those allegations of negligence,@ and the Aonly thing that these photographs can do is inflame the
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jury, making them feel sorry for Mr. Butler and his family.@ (Def. Mots. in Limine [DN 157] 7.)
The Plaintiff does not indicate an intent to introduce a family video. However, according
to the Plaintiff, the jury is entitled to see photographs of Mr. Butler in order to see what he looked
like (and, specifically, to show that Mr. Butler was a living human being). Further, Plaintiff argues
that there should be no prohibition against Plaintiff introducing just one picture of her son taken in
better times as she remembers him. The Court agrees.
Kentucky courts have often permitted the introduction of life photographs of victims to
prove that the victims were living persons. See, e.g., Tamme v. Commonwealth, 973 S.W.2d 13,
36 (Ky. 1998) (permitting the victims= mothers to introduce life photographs of their deceased
sons). Defendant’s motion on this issue is DENIED.
10. Exclude Introduction of Dr. Davis’ Compensation as Medical Director at
Hopkins County Regional Jail (Or Any of the Other Jails where Dr. Davis Served as
Medical Director) and to Exclude the Number of Jails where Dr. Davis Worked as
Medical Director
Defendant moves the Court to prohibit any testimony from Plaintiff regarding Dr. Davis’
compensation as the Medical Director at the Hopkins County Regional Jail (or any of the other
jails where he served as the Medical Director). Defendant further moves the Court to prohibit
testimony from the Plaintiff regarding the number of jails where Dr. Davis worked as a Medical
Director. The Plaintiff does not oppose this portion of Defendant’s motion. As such, the motion
is GRANTED with respect to this issue.
11. Exclude Evidence of Other Lawsuits
Defendant moves the Court to prohibit any evidence that it may have been named as a
Defendant in other medical malpractice cases. According to Defendant, any efforts to introduce
such evidence “would be sorely misguided and would amount to nothing more than impermissible
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character evidence” which is prohibited under Fed. R. Evid. 404(b). (Def.’s Mots. in Limine [DN
157] 9.) The Plaintiff counters that such evidence should not be prohibited at trial, as it is relevant
to show that Defendant (1) has persistent and widespread customs and practices that render its
written policies and procedures a nullity, and (2) is only one of many cases in which Defendant had
notice of but repeatedly failed to make any meaningful investigation into claims of medical neglect
by its employees. Plaintiff contends that Defendant’s practice of staffing jails primarily with
nurses unfamiliar with its written policies and practices, unsupervised by an “absentee medical
director, has caused numerous deaths and near-deaths in jails throughout Kentucky. Further,
Plaintiff argues that this evidence is also relevant to the issue of punitive damages.
In the present case, the Sixth Circuit provided in part that
Shadrick can demonstrate SHP’s failure to provide LPN nurses with adequate
training and supervision in one of two ways. She can show “[a] pattern of similar
constitutional violations by untrained employees” and SHP’s “‘continued
adherence to an approach that [it] knows or should know has failed to prevent
tortious conduct by employees,’” thus establishing “the conscious disregard for the
consequences of [its] action—the ‘deliberate indifference’—necessary to trigger
municipal liability.” Connick, 131 S.Ct. at 1360 (quoting Bryan Cnty., 520 U.S. at
407, 117 S.Ct. 1382). Alternatively, Shadrick can establish “a single violation of
federal rights, accompanied by a showing that [SHP] has failed to train its
employees to handle recurring situations presenting an obvious potential” for a
constitutional violation. Bryan Cnty., 520 U.S. at 409, 117 S.Ct. 1382.
Shadrick v. Hopkins Cty., Ky., 805 F.3d 724, 738-39 (6th Cir. 2015). The Sixth Circuit reversed
the Court’s grant of summary judgment on the “recurring situation” theory finding that “a
reasonable jury could find that the potential risk of the commission of constitutional torts by LPN
nurses who lack the essential knowledge, tools, preparation, and authority to respond to the
recurring medical needs of prisoners in the jail setting is so obvious that [SHP’s] failure to provide
adequate training and supervision to those nurses constitutes deliberate indifference to the risk.”
Id. at 739-740. Significantly, the Sixth Circuit further provided that
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Although we do not address Shadrick’s argument that a pattern of tortious or
unconstitutional conduct by inadequately trained nurses existed, see Bryan Cnty.,
520 U.S. at 407–08, 117 S.Ct. 1382; Burgess, 735 F.3d at 478, evidence about
similar incidents of inmate deaths in jail facilities served by SHP may be relevant to
whether SHP acted with deliberate indifference to the medical needs of inmates
with whom its nurses came into contact at HCDC. This is a trial issue for the district
court to resolve on remand. We do not address Shadrick's contention that SHP
management ratified the conduct of its nurses.
Shadrick, 805 F.3d at 744. Therefore, in pursuing a pattern theory of constitutional violations,
evidence of similar incidents of inmates’ deaths in jails served by SHP is relevant to whether SHP
acted with deliberate indifference to the medical needs of Butler. Thus, while the incidents of
these deaths or near-deaths, along with SHP’s investigation and changes in training, is relevant, the
fact that lawsuits were filed in those instances is not relevant. For these reasons, the Defendant’s
motion to exclude the fact that Defendant was named as a Defendant in other lawsuits is
GRANTED.
However, evidence of other lawsuits may be used as impeachment if Defendant opens the
door to such an inquiry by arguing that SHP was not aware of the deaths of other inmates. In the
event Plaintiff believes Defendant’s witnesses have opened the door to such questioning, counsel
shall first seek permission from the Court before addressing any questions along these lines.
12. Exclude Evidence of AChance@ or APossibility@ Pertaining to Mr. Butler’s Survival
Defendant moves the Court to preclude the Plaintiffs from arguing or otherwise offering
any evidence from their expert witnesses of “chances of survival,” “possibilities,” or other
hypothetical interventions or courses which may have changed the outcome in this case.
Defendant bases this motion on the fact that Kentucky has declined to recognize the doctrine of
“loss of chance.” See Kemper v. Gordon, 272 S.W.3d 146, 153 (Ky. 2008). Defendant also bases
this motion on the fact that the Plaintiff has the burden to prove the elements of negligence within
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a reasonable degree of medical probability. See Sakler v. Anesthesiology Assocs., P.S.C., 50
S.W.3d 210, 213 (Ky. App. 2001).
As a general matter, the Court agrees with Defendant. Kentucky has declined to recognize
the doctrine of Aloss of chance,@ and all opinions related to medical negligence must be stated
within a reasonable degree of medical probability. However, Defendant’s motion is overly broad
to rule on in limine. Thus, all such objections shall be made at trial. Defendant’s motion as to this
issue is DENIED.
13. Exclude Evidence or Arguments that Dr. Davis was the ACaptain of the Ship@
and/or that He Bore AUltimate@ Responsibility for Mr. Butler’s Care and Treatment
Defendant moves the Court to preclude the Plaintiff from offering any testimony that Dr.
Davis was the “captain of the ship” or that he bore “ultimate responsibility” for the acts and/or
omissions of other persons (i.e. the employees of the Hopkins County Regional Jail or Southern
Health Partners). In support, Defendant notes that Kentucky courts do not recognize the validity
or legal viability of the “captain-of-the-ship doctrine.” See Tucker v. Women=s Care Physicians of
Louisville, P.S.C., 381 S.W.3d 272, 277 (Ky. 2012). The Plaintiff does not oppose this portion of
Defendant’s motion. Accordingly, it is GRANTED.
14. Motion in Limine to Preclude Articles Referencing This Case or Other Acts of
This Moving Defendant
Defendant moves the Court to preclude the Plaintiff from offering any testimony or
otherwise mentioning the existence of any journalism, television or radio reports, articles, or any
other such media or multi-media materials with regard to this case or other prior acts of the
Defendant. The Plaintiff does not oppose the portion of the motion to exclude published articles
concerning past instances of Defendant’s misconduct. According, Defendant’s motion with
respect to this issue is GRANTED.
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15. Motion in Limine to Preclude Testimony that Tyler Butler Could Have or
Would Have Continued Working upon His Release
Defendant moves the Court to preclude testimony that Plaintiff could have or would have
continued working upon his release from jail had he survived. In support, Defendant argues that
Plaintiff’s two medical experts did not offer opinions in their written reports or testify in their
depositions within a reasonable degree of medical probability (or economic probability) that
Plaintiff could or would be able to work upon release. In response, Plaintiff maintains that
evidence of permanent injury/death alone is sufficient for an instruction on permanent impairment
of earning power in Kentucky. Turfway Park Racing Association v. Griffin, 834 S.W.2d 667, 670
(Ky. 1992). The Court agrees with Plaintiff.
The Kentucky Supreme Court in Turfway Park noted that “it is unnecessary to submit
evidence of the decedent’s power to earn money to sustain the jury verdict for its destruction.”
Turfway Park, 834 S.W.2d at 670 (“damages flow naturally from the wrongful death of a person
unless there is evidence from which the jury could reasonably believe that the decedent possessed
no power to earn money” id. at 671). Similarly, the Kentucky Supreme Court in Reece held that
“[w]e hold that evidence of permanent injury alone is sufficient for an instruction on permanent
impairment of earning power, and that the jury can through their common knowledge and
experience make the determination if there has been a permanent impairment of earning power, the
extent of such impairment, and the amount of damages for such impairment.” Reece v. Nationwide
Mut. Ins. Co., 217 S.W.3d 226, 229 (Ky. 2007). “While specific expert witness testimony on
permanent impairment of earning power is helpful and often persuasive, see Louisville Metro
Hous. Auth. v. Burns, 198 S.W.3d 147, 151 (Ky. App. 2005), it is not necessary to submit the issue
of permanent impairment of earning power to the jury.” Reece, 217 S.W.3d at 229; see also
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Louisville & N.R. Co. v. Holloway’s Adm’r, 181 S.W. 1126, 1130 (Ky. Feb. 3, 1916)(“The jury in
this case had before them, and had the right to consider in determining the pecuniary loss sustained
by the widow, the earning capacity, age, health, habits, character, occupation, expectancy of life,
and mental and physical disposition to labor of the deceased.”). Given this case law, the
Defendant’s motion in limine on this issue is DENIED.
16. Motion in Limine to Exclude any Evidence of an Offer of Judgment Accepted
and Entered Against Nurses Candace Moss and Renee Keller
Defendant seeks to exclude evidence of a Judgment entered against SHP Defendants
Candace Moss and Renee Keller on May 8, 2014 [DN 133] which was based on their Offer of
Judgment [DN 123] accepted by Plaintiff on March 29, 2014 [DN 127]. Defendant represents
that the Judgment merely formalized a settlement agreement between the participating parties
pursuant to Fed. R. Civ. P. 68. Defendant argues that the judgment is irrelevant, unfairly
prejudicial, and otherwise violates Fed. R. Evid. 408. In response, Plaintiff states that she wants
to introduce the Offer of Judgment that was accepted. Plaintiff argues that she should be
permitted to inform the jury at the outset of the Judgment in order to notify the jury that employees
of Defendant were sued and a judgment was entered against them in an effort to foreclose any
claim by Defendant that none of its employees did anything wrong.
The fact that Moss and Keller settled with Plaintiff before trial is not relevant to the claims
against Defendant. Initially, it should be noted that there is no evidence to indicate that Moss and
Keller admitted liability or fault when they settled. The Offer of Judgment specifically states that
it “is not to be construed as an admission of fault on the part of the SHP Defendants.” [DN 123].
Evidence of settlement negotiation and agreement is generally inadmissible for any purpose under
Rule 408 of the Federal Rules of Evidence, including proving liability for, or invalidity of, the
12

claim or its amount. Plaintiff seeks to demonstrate SHP Defendants Moss and Keller’s liability for
the claims asserted against them in an effort to prove that Defendant is liable for the alleged
wrongdoing of the nurses. Rule 408 does not permit such use of a settlement. Finally, even if
relevant, the probative value of the judgment against SHP Defendants Moss and Keller is
substantially outweighed by unfair prejudice towards Defendant pursuant to Fed. R. Evid. 403.
Accordingly, the motion in limine is GRANTED.
B. Motions in Limine by Plaintiff [DN 161]
1. Exclude Written Reports of Defendant’s Experts
Plaintiff moves the Court to prohibit the admission of any expert reports into evidence in
this case. In support, the Plaintiff suggests that such evidence will be cumulative of the experts’
trial testimony. Plaintiff also notes that such reports are inadmissible because they are considered
hearsay. In response, Defendant oddly challenges the motion despite having made the exact same
motion in its motions in limine. Defendant argues that there are circumstances under which an
expert report could be admitted into evidence such as to demonstrate prior inconsistent statements,
for impeachment, and to rehabilitate SHP’s own experts’ credibility. Defendant also notes that
SHP’s experts can refer to their reports, the reports of other experts, and other documents during
the course of their testimony at trial.
The written reports of expert witnesses prepared in anticipation of trial are generally
inadmissible because they are considered hearsay. Wright v. Premier Elkorn Coal Co., 16 S.W.3d
570, 572 (Ky. App. 1999); Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 729 (6th
Cir.1994) (citing Fed. R. Evid. 702 & 703). “Rule 703 allows a testifying expert to rely on
materials, including inadmissible hearsay, in forming the basis of his opinion. Rules 702 and 703
do not, however, permit the admission of materials, relied on by an expert witness, for the truth of
13

the matters they contain if the materials are otherwise inadmissible.” Id. at 728. Here, the experts
may testify, and be subject to impeachment, concerning the contents of his/her report, but the
report itself will not be admitted as an exhibit for submission to the jury. The Court will consider
on an ad hoc basis requests at trial to submit charts, graphs, or other material contained therein.
Thus, as to these written reports, the Plaintiff’s motion is GRANTED.
2. Exclude Testimony that Defendant or its Nurses Conduct Were “Not Liable,” were
not “Negligent” or “Deliberately Indifferent”
The Plaintiff moves the Court to exclude any testimony that the Defendant or its nurses’
conduct were not liable, were not negligent, or not deliberately indifferent. In support, Plaintiff
notes that deliberate indifference is a legal term involving issues of state of mind that can be
resolved only by a jury. See Berry v. City of Detroit, 25 F.3d 1342, 1353B54 (6th Cir. 1994).
Further, Plaintiff cites Davis v. Roane County, 2015 WL 6738174 (E.D. Tenn. Nov. 4, 2015) for
the proposition that a medical expert is not permitted to testify to Defendant’s liability. In
response, Defendant agrees that witnesses are not permitted to testify that SHP was or was not
negligent or deliberately indifferent because those statements invade the province of the jury.
But as the Defendant notes, SHP’s experts are permitted to testify as to the standard of care
for SHP and that its staff did not violate the standard of care. Further, experts are certainly
entitled to opine to the reasonableness or unreasonableness of a witness’s action in light of their
admitted testimony.
Based upon the foregoing, the court finds that the experts may not testify as to whether in
their opinion the Defendant’s alleged conduct constituted deliberate indifference or negligence
toward the Plaintiff.

But as the Defendant notes, the experts may testify, however, what

constitutes the standard of care in the present case, whether in their opinion the Defendant’s
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alleged conduct was contrary to or violated the appropriate standard of care, and whether in their
opinion the alleged actions of the Defendant violated jail policy or procedure. See Davis v. Roane
Cty., Tenn., 2015 WL 6738174, at *4 (E.D. Tenn. Nov. 4, 2015)(expert “may testify regarding the
nature, extent, and quality of the medical care [the prisoner] received and opine regarding the
effect and cause of her death.”); Rose v. Sevier County, Tenn., 2012 WL 6140991, *6 (E.D. Tenn.
Dec. 11, 2012); Finn v. Warren County, Ky., 2012 WL 3067376, *4-5 (W.D. Ky. July 27, 2012).
Furthermore, generally, an expert’s opinion regarding whether certain facts or information is or is
not important in their analysis is “best addressed through vigorous cross-examination.” Davis,
2015 WL 6738174, *7 (“as to Defendants’ claims that she ignored the facts of this case, the Court
feels that such factual matters, the weight or lack of weight she assigned to them and the effect, if
any, on her opinions are best addressed through vigorous cross-examination.”). Accordingly, the
Plaintiff’s motion in limine on these issues is GRANTED IN PART AND DENIED IN PART
consistent with this Opinion.
3. Exclude Evidence or Argument that Mr. Butler did not Suffer a Fatal Injury due
to his Confinement in the Hopkins County Detention Center.
Plaintiff moves the Court to exclude any evidence or argument that Mr. Butler did not
suffer a fatal injury due to his confinement in the Hopkins County Detention Center. In support,
Plaintiff notes that to establish common law negligence under Kentucky law, the Plaintiff must
prove by a preponderance of the evidence that “(1) a duty of care owed by the defendant to the
plaintiff, (2) breach of that duty, (3) injury to the plaintiff, and (4) legal causation between the
defendant's breach and the plaintiff's injury.” Vincent v. Warren County, 629 Fed. Appx. 735
(6th Cir. 2015). According to Plaintiff, there is no dispute that Mr. Butler “suffered a fatal injury
during his confinement at the jail.” Id. In Plaintiff’s trial brief [DN 179], Plaintiff expands on this
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argument more by indicating that there is no issue as to causation. Plaintiff suggests that there is no
evidence that Mr. Butler would have died had he not been incarcerated in the HCDC and
dependent upon Defendant’s care. (Plaintiff’s Trial Brief at 4.)
The Court disagrees. While it is undisputed the Plaintiff died while incarcerated at the
HCDC, there is a genuine dispute as to whether there was a breach of duty, an injury, or whether
the injury was caused by Defendant’s actions. Defendant represents that it will produce evidence
that Mr. Butler received appropriate care during his confinement at HCDC and that his death was
caused by myocarditis, not an injury. There is a genuine dispute of material fact regarding whether
Mr. Butler suffered a fatal injury due to his confinement in the HCDC. Accordingly, this motion
to dismiss is DENIED.
4. Exclude Evidence or Argument that Mr. Butler Had Previously-Unknown
Medical Condition that was the Cause of Death
Plaintiff moves the Court to exclude any evidence or argument that Mr. Butler had a
previously-unknown medical condition that was the cause of his death, without excluding his
illness during his incarceration as a contributory cause. For the reasons set forth below in Section
III, this motion in limine is DENIED.
5. Exclude Testimony or Argument Concerning Standard Correctional Health
Practices or “Standard of Care” that Impose Lesser Duties than the Defendant’s
Written Policies and Procedures
The Plaintiff moves the Court to exclude any testimony or argument regarding any
standard correctional health practices or “standard of care” that impose lesser duties than the
Defendant’s written policies and procedure. Plaintiff also raises this same argument in her
Objections to Defendant’s Expert Witnesses [DN 162]. According to the Plaintiff, Defendant
should not be allowed to introduce evidence that standard correctional health practices, laws, or
16

regulations allowed it to do less than what was required by its own policies. In support, Plaintiff
maintains that Defendant’s policies and procedures for the medical care of inmates at the jail
wasn’t just a policy – but had the force of law pursuant to KRS § 441.045(1), (3).
The Court disagrees. In this case, it is the jury’s task to decide whether the policies and
procedures of Southern Health Partners comply with or represent the standard of care. The Sixth
Circuit has repeatedly recognized that while internal regulations and standard operating
procedures are relevant in considering the scope of the duty of care owed, they do not necessarily
create or define the precise scope of the duty owed. See Keir v. United States, 853 F.2d 398,
413B14 (6th Cir. 1988); Estes v. King=s Daughters Med. Ctr., 59 Fed. Appx. 749, 756B57 (6th Cir.
2003). As noted by the Sixth Circuit in addressing whether policies adopted pursuant to KRS §
441.025 can support a claim of negligence per se in Finn v. Warren County:
this court has previously held under Kentucky law that a prison's internal operating
procedure “is not a regulation from which negligence for violation should arise per
se.” Flechsig v. United States, 991 F.2d 300, 304 (6th Cir.1993). To hold that it is
would “create a disincentive” and cause the jail “to adopt as procedures only what
is legally required.” Id.
Finn v. Warren County, 768 F.3d 441, 451 (6th Cir. 2014). The Plaintiff’s motion is DENIED as
to this issue.
6. Exclude Any Opinions of SHP’s Experts on Direct Examination That Were Not
Expressed within the “Four Corners” of their Written Reports
Plaintiff requests the Court to prohibit Defendant’s experts from testifying to opinions on
direct examination that were not expressed in their report. In support, Plaintiff argues that Fed. R.
Civ. P. 26 requires a complete statement of all opinions an expert witness will express. Plaintiff
states that it elected not depose Defendant’s experts and therefore, Defendant should not be
permitted to solicit opinions from these experts on direct that were not expressed in their written
17

reports.
The Court agrees with Plaintiff that experts must generally testify within the scope of their
expert reports or discovery depositions. This principle is implicit in Fed. R. Civ. P. 26(a)(2)(B) and
26(e)(1), which “require disclosures in advance of trial of the bases and reasons for an expert=s
opinions.” See Asher v. Unarco Material Handling, Inc., 2008 WL 2596612, at *2 (E.D. Ky. June
25, 2008) (emphasis added). Additionally, the party that has retained such expert has an ongoing
“duty to supplement extend[ing] both to information included in the report and to information
given during the expert's deposition.” Fed. R. Civ. P. 26(e)(2). However, Plaintiff does not offer
any context for its motion or any specific information as to how Defendant’s retained experts
might stray from the confines of their expert report. Additionally, Plaintiff seeks a broad order
prohibiting any additional opinions from the Defendant’s experts. The Court refuses to speculate
as to the nature of any additional opinions which the Plaintiffs= experts might seek to admit. The
Court will adhere to and apply Rule 26 and the Federal Rules of Evidence as they relate to
permissible expert testimony. See Parrish v. Dollar Gen. Corp., 2016 WL 742925, *3 (W.D. Ky.
Feb. 24, 2016). Thus, Plaintiff’s motion is DENIED. At trial, the Court will entertain any
specific objections by Plaintiff in relation to the scope of Defendant’s experts’ testimony.
7. Exclude Any Opinions of SHP’s Experts on Direct Examination That Were Not
Expressed in their Written Reports to at least a Reasonable Degree of Medical
Probability.
Plaintiff seeks to also exclude any opinions of Defendant’s experts on direct examination
that were not expressed in their written reports to at least a reasonable degree of medical
probability. Plaintiff also raises this same argument in her Objections to Defendant’s Expert
Witnesses [DN 162]. In response, Defendant argues that the “reasonable degree of medical
certainty” standard does not apply to standard of care experts. Further, Defendant argues that
18

only the Plaintiff has the burden to offer medical opinions within a reasonable degree of medical
certainty. Defendant maintains that it need only show that the Plaintiff has failed to satisfy her
burden which can be done by presenting evidence that something was possible even if an expert
did not testify that it occurred within a reasonable degree of medical certainty. Wilder v.
Eberhart, 977 F.2d 673 (1st Cir. 1992)(“Defendant need not prove another cause, he only has to
convince the trier of fact that the alleged negligence was not the legal cause of the injury. In
proving such a case, a defendant may produce other ‘possible’ causes of the plaintiff’s injury. these
other possible causes need not be proved with certainty or more probably than not.”); Sakler v.
Anesthesiology Associates, P.S.C., 50 S.W.3d 210, 212 (Ky. App. 2001)(“We conclude that
defendants in medical malpractice actions may introduce expert witness testimony to rebut a
plaintiff’s expert witness testimony couched in terms of ‘reasonable medical probability,’ even
though the defendant's expert witness’s testimony is couched only in terms of ‘possibility.’ In so
deciding, we are persuaded by the reasoning of the United States Court of Appeals for the First
Circuit in the case of Wilder v. Eberhart, 977 F.2d 673 (1st Cir.1992), cert. denied 508 U.S. 930,
113 S.Ct. 2396, 124 L.Ed.2d 297 (1993).” Id. at 213); but see Finn v. Warren County, 768 F.3d at
452 (Sixth Circuit noted that defendant’s medical expert utilized “the correct standard for expert
witness testimony—a reasonable degree of medical certainty.”).
The Court agrees with Defendant. A plaintiff in a negligence action bears the burden of
establishing causation. “In contrast, defendants are not required to ‘disprove' causation. Instead,
they must only produce ‘credible evidence which tends to discredit or rebut the plaintiff's evidence'
so as to ‘convince the trier of fact that the alleged negligence was not the legal cause of the injury.'”
Hudson v. CSX Transp., Inc., 2009 WL 4406069, *4 n. 3 (Ky. Ct. App. 2009) (quoting Sakler v.
Anesthesiology Assocs., 50 S.W.3d 210, 214 (Ky. Ct. App. 2001)). “Defense experts are not
19

bound by the ‘probability’ standard and may introduce testimony ‘couched only in terms of
‘possibility.’” Osborne v. Bailey, 2014 WL 6687605, at *4 (Ky. Ct. App. Nov. 26, 2014), review
denied (Oct. 21, 2015). Thus, Plaintiff’s motion is DENIED.
8. Exclude Testimony or Argument that the Defendant’s Policies were Superseded or
Rendered a Nullity by those of the Jail
Plaintiff moves the Court to exclude any testimony or argument that Defendant’s policies
were superseded or rendered a nullity by those of the Jail because there is no such evidence in the
record. The Defendant responds that there is no such evidence. At the present time, it appears
this motion in limine is MOOT, and any specific objection related to this evidence is reserved for
trial.
9. Exclude Any Evidence or Argument Concerning Mr. Butler’s Criminal History
Plaintiff argues that any Mr. Butler’s prior criminal history is not properly admissible
pursuant to Fed. R. Evid. 404(b)(1) as a prior bad act and Fed. R. Evid. 609 as impeachment by
evidence of a criminal conviction. In response, Defendant states that it will need to introduce
evidence that Mr. Butler was incarcerated and the circumstances of his arrest to explain his
placement on detox and his subsequent treatment.

Specifically, Defendant contends that his

prior criminal history impacts where he was placed in the Detention Center, their access to him,
and how their knowledge of his history affected his treatment and placement in detox.
In as much as the evidence is relevant to his placement and treatment at HCDC and his
knowledge of the sick call procedure, the motion in limine is DENIED. Furthermore, in her Trial
Brief and contrary to Plaintiff’s representation in the motion, Plaintiff indicates that she is seeking
damages for lost power to labor and earn money as to which Mr. Butler’s criminal history is also
relevant. Any remaining objections the Plaintiff has should be raised at trial.
20

10. Exclude Any Use of Defendant’s Employees’ Blatant Violations of Defendant’s
Policies as a License to Speculate on Mr. Butler’s Condition in a Manner that Favors
Defendant and its Employees.
Plaintiff argues that due to Defendant’s employees’ violation of Defendant’s policies and
procedures with respect to preparing a drug and alcohol flow sheet and wound care flow sheet, no
real record of Mr. Butler’s condition on admission to the HCDC or during his incarceration exists.
Given this, Plaintiff argues that Defendant’s experts should not be permitted to use these policy
violations as license to speculate on Mr. Butler’s condition in a manner that favors Defendant or its
employees. In response, Defendant notes that Plaintiff fails to refer to any specific evidence that
should be excluded. Additionally, Defendant maintains that the Federal Rules of Evidence does
not prohibit its experts from providing opinions regarding Mr. Butler’s condition simply because a
SHP employee did not follow a SHP policy that would have provided a more complete record.
The Court agrees with Defendant. Defendant’s experts are permitted to provide opinions
regarding Mr. Butler’s condition. Counsel may cross-examine the experts regarding the lack of the
flow sheets and/or medical record. Accordingly, the Plaintiffs= motion is DENIED as to this
issue.
III. DISCUSSION ON DAUBERT-RELATED MOTIONS
Plaintiff filed a Daubert motion styled Plaintiff’s Objection to Defendant’s Expert Witnesses
[DN 162] on June 23, 2016. Plaintiff objects to (1) any expert’s testimony that Mr. Butler’s death
was caused by a previously unknown medical condition without excluding his illness during his
incarceration as a contributory cause; (2) Defendant’s experts’ opinions that Mr. Butler died of
myocarditis; and (3) that SHP’s employees acted “appropriately” or satisfied the standard of care.
Specifically, Plaintiff objects to the opinions of Dr. George Nichols, Dr. Alan Weder, Dr. Grady
Bazzel, Dr. Michael Gelfand, and Nancy James, LPN.
21

In response to Plaintiff’s motion,

Defendant filed a Motion to Strike Plaintiff’s Untimely Daubert motion. [DN 167].
A. Defendant’s Motion to Strike [DN 167]
Defendant moves to strike Plaintiff’s Daubert motions as untimely. Defendant argues that
the untimely filing of the Daubert motions has forced Defendant to both prepare for trial and
respond to the motions. Because the trial of this matter has been rescheduled for April of 2017,
the Court DENIES the motion to strike.
B. Plaintiff’s Daubert Motions [DN 162]
Rule 702 provides that “[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.” Under Rule 702, the trial
judge acts as a gatekeeper to ensure that expert evidence is both reliable and relevant. Mike’s
Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir. 2006) (citing Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137 (1999)).
Parsing the language of the Rule, it is evident that a proposed expert's opinion is
admissible, at the discretion of the trial court, if the opinion satisfies three
requirements. First, the witness must be qualified by “knowledge, skill, experience,
training, or education.” 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. Third, the testimony must be reliable. Id.
In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008). “Rule 702 guides the
trial court by providing general standards to assess reliability.” Id.
In determining whether testimony is reliable, the Court’s focus “must be solely on
22

principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595.
The Supreme Court identified a non-exhaustive list of factors that may help the Court in assessing
the reliability of a proposed expert’s opinion. These factors include: (1) whether a theory or
technique can be or has been tested; (2) whether the theory has been subjected to peer review and
publication; (3) whether the technique has a known or potential rate of error; and (4) whether the
theory or technique enjoys “general acceptance” within a “relevant scientific community.” Id. at
592–94. This gatekeeping role is not limited to expert testimony based on scientific knowledge,
but instead extends to “all ‘scientific,’ ‘technical,' or ‘other specialized’ matters” within the scope
of Rule 702. Kumho Tire Co., 526 U.S. at 147. Whether the Court applies these factors to assess
the reliability of an expert’s testimony “depend[s] on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” Kumho Tire Co., 526 U.S. at 150 (quotation omitted).
Any weakness in the underlying factual basis bears on the weight, as opposed to admissibility, of
the evidence. In re Scrap Metal Antitrust Litig., 527 F.3d at 530 (citation omitted).
1. Motion to Exclude any Expert Testimony that Mr. Butler’s Death was Caused by a
Previously Unknown Medical Condition without Excluding his Illness during his
Incarceration as a Contributory Cause and to Exclude Defendant’s Experts’
Opinions that Mr. Butler Died of Myocarditis
Plaintiff argues both in this Daubert motion and her motion in limine [DN 161 at 2] that the
Court should exclude any evidence or argument that Mr. Butler had a previously unknown medical
condition that was the cause of his death without excluding his illness during his incarceration as a
contributory cause. Plaintiff maintains that Defendant’s experts fail to adequately apply the
differential diagnosis test.
Differential diagnosis is “‘[t]he method by which a physician determines what disease
process caused a patient's symptoms. The physician considers all relevant potential causes of the
23

symptoms and then eliminates alternative causes based on a physical examination, clinical tests,
and a thorough case history.'” Best v. Lowe’s Home Centers, Inc., 563 F.3d 171, 179 (6th Cir.
2009)(quoting Hardyman v. Norfolk & Western Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001)
(quoting Federal Judicial Center, Reference Manual on Scientific Evidence 214 (1994))). The
Sixth Circuit adopted the “differential diagnosis” test:
A medical-causation opinion in the form of a doctor’s differential diagnosis is
reliable and admissible where the doctor (1) objectively ascertains, to the extent
possible, the nature of the patient's injury, see id. at 762 (“A physician who
evaluates a patient in preparation for litigation should seek more than a patient's
self-report of symptoms or illness and . . . should . . . determine that a patient is ill
and what illness the patient has contracted.”), (2) “rules in” one or more causes of
the injury using a valid methodology, and (3) engages in “standard diagnostic
techniques by which doctors normally rule out alternative causes” to reach a
conclusion as to which cause is most likely. Id. at 760. In connection with the
third “rules out” prong, if the doctor “engage[s] in very few standard diagnostic
techniques by which doctors normally rule out alternative causes,” the doctor must
offer a “good explanation as to why his or her conclusion remain[s] reliable.” Id.
Similarly, the doctor must provide a reasonable explanation as to why “he or she
has concluded that [any alternative cause suggested by the defense] was not the sole
cause.” Id. at 758 n. 27.
Best v. Lowe's Home Centers, Inc., 563 F.3d 171, 179 (6th Cir. 2009).
Plaintiff argues that Mr. Butler reported that he suffered from MRSA, rheumatoic arthritis
and gout, and had a rash, was vomiting, detoxing, couldn’t walk, was urinating and defecating on
himself, and was so sick that he couldn’t fill out a medical request or reach a water source.
According to Plaintiff, Defendant’s experts have cobbled up a theory that Mr. Butler died of
“myocarditis.” Plaintiff contends that Defendant has a battery of experts who have been hired for
the purpose of confusing the Court and the jury between the “cause” of death (sepsis, detoxing,
MRSA, the stresses of rheumatoid arthritis and/or gout) versus the “mechanism” of death (a heart
allegedly weakened by myocarditis stops). Plaintiff maintains that unless Defendant’s experts
can “rule out” as a contributory cause whatever was causing and contributing to the signs and
24

symptoms that were clearly observed by the deputy jailers and were neglected for days by
Defendant’s employees, its experts’ opinions as the mechanism of Mr. Butler’s death is
completely irrelevant. Furthermore, Plaintiff maintains that given the established link between two
of Mr. Butler’s undisputed medical conditions – MRSA and rheumatoid arthritis – and
myocarditis, combined with evidence of the abject neglect of both of these conditions during Mr.
Butler’s incarceration, it is essential that Mr. Butler’s MRSA and rheumatoid arthritis be “ruled
out” as contributing causes to his death in general, and to his myocarditis in particular.
In response, Defendant argues that the “causation” opinions of SHP’s experts are reliable
under Daubert and should not be excluded. Defendant contends that its experts engaged in an
extremely thorough differential diagnosis test. The Court agrees. Dr. George Nichols, Dr. Alan
Weder, and Dr. Michael Gelfand employ the differential diagnosis method by ruling in one or
more causes of Mr. Butler’s death and then rules out alternative causes. All three experts
specifically address Plaintiff’s expert’s opinion that Mr. Butler died from sepsis, presumably
caused by MRSA. These experts opine that Plaintiff’s medical history is not consistent with
MRSA or sepsis, but instead with myocarditis likely caused by a virus. In fact, Dr. George Nichols
examined the possible causes of Mr. Butler’s death utilizing a methodology identical to Plaintiff’s
expert, Dr. Schluckebier. Dr. Nichols based his findings primarily on pathological results of the
Mr. Butler’s heart tissue finding myocyte damage.
Plaintiff complains that the experts did not “rule out” rheumatoid arthritis, thus rendering
their methodology unreliable. From a review of the record, no expert has suggested that Mr.
Butler’s death was caused by rheumatoid arthritis.

As such, the Court would agree with

Defendant that the experts had no reason to provide a detailed discussion of why they were ruling
it out as a possible cause. However, Dr. Alan Weder specifically addressed Mr. Butler’s arthritis
25

finding that there was no indication that joint pain itself contributed to his death.
Further, Dr. Weder’s reliance on the report of Dr. Hawley for a portion of his opinion does
not render his opinion unreliable despite the fact that Dr. Hawley is no longer able to testify. Fed R.
Evid. 703 allows an expert to rely on information disclosed to him “if experts in the particular field
would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed. R.
Evid. 703.1 Rule 703 “'does not predicate admissibility on the source of the facts or data or, in
particular, on whether the source is employed by either of the parties.'” Numatics, Inc. v. Balluff,
Inc., 66 F. Supp. 3d 934, 949–50 (E.D. Mich. 2014); see also Williams v. Illinois, ––– U.S. ––––,
132 S.Ct. 2221, 2246, 183 L.Ed.2d 89 (2012) (Breyer, J., concurring) (“Experts ... regularly rely on
the technical statements and results of other experts to form their own opinions.”); Tamraz v.
Lincoln Elec. Co., 620 F.3d 665, 675 (6th Cir. 2010) (“an expert may in some circumstances rely
on other experts’ testimony—see Fed.R.Evid. 703”)). Thus, under Rule 703, Dr. Weder “may base
his opinion on reports compiled or statements made by nontestifying people as long as the reports
and statements are of a type reasonably relied upon by experts in the relevant field.” United States
v. Parnell, 2014 WL 4388523, *3 (M.D. Ga. Sept. 5, 2014). Experts in Dr. Weder’s field
necessarily and reasonably rely on examinations, opinions, and tests obtained by other doctors,
hospitals, and scientist. Id. See also Ryans v. Koch Foods, LLC, 2015 WL 11108937, *4 (E.D.
Tenn. July 16, 2015)(“an expert may base his opinion on facts or data that would be inadmissible
in evidence, including hearsay evidence”).
Finally, to the extent that Plaintiff wishes to contest Dr. Hawley and Dr. Nichols’ opinion
1 “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally
observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion
on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the
jury evaluate the opinion substantially outweighs their prejudicial effect.” Fed. R. Evid. 703.

26

regarding Mr. Butler’s cause of death, and Dr. Weder, Dr. Gelfand, and Dr. Grady Bazzell’s
subsequent reliance, such an argument is permissible. However, the Plaintiff’s disagreement on
this issue goes to the weight of these experts’ opinions, not their admissibility.
2. Standard of Care Experts
Plaintiff seeks to exclude three of Defendant’s experts’ opinions that SHP employees acted
“appropriately” or satisfied the standard of care.
First, Plaintiff complains that in Dr. Alan Weder’s 10-page long report, he says nothing
about the standard of care until the final sentence of his report and cites no standards on which his
opinions are based. A review of Dr. Weder’s report reflects that on multiple occasions in his
report Dr. Weder opines that SHP acted appropriately under the circumstances presented at the
time of Mr. Butler’s incarceration. See (Weder Report at 8)(“[T]here was noting observed which
would raise the question of sepsis for jail personnel, and there was no plausible reason for them to
suspect that.”); (Weder Report at 9)(“I believe that to a reasonable degree of medical certainty, Mr.
Butler died of cardiac arrhythmia. That event was not predictable or preventable by any actions
that could have been reasonably taken by Hopkins County Jail personnel.”); (Weder Report at
10)(“I find that the actions of the medical personnel caring for Mr. Butler fall within the usual
standard of care for the conditions that caused his death.”). Dr. Weder arrived at these opinions
by reviewing Mr. Butler’s medical records, other expert reports, depositions of the witnesses
called in this case and relied upon his knowledge and experience as a physician of internal
medicine and a professor of Internal Medicine at the University of Michigan.
Second, Plaintiff argues that Dr. Grady Bazzel’s testimony should be excluded because Dr.
Bazzel makes no mention of SHP’s policies and procedures in his report. According to Plaintiff,
Dr. Bazzel only opines that Dr. Henry Davis and SHP’s employees acted appropriately in their
27

treatment of Mr. Butler, despite SHP’s employees’ record admission of their myriad violations of
SHP’s policies and procedures.
The record reflects that Dr. Bazzel is the deputy medical director for Correct Care
Solutions, one of the largest providers of correctional healthcare in the United States. He trains
physicians, mid-level providers, and nurses on the appropriate management of patients in the
correctional setting. Based on his training, education, and experience, and a review of the
medical records and depositions, Dr. Bazzel opined that SHP’s staff met all applicable standards of
care and acted appropriately in the treatment of Mr. Butler. As noted above, an expert “may
testify regarding the nature, extent, and quality of the medical care [the prisoner] received and
opine regarding the effect and cause of her death.” Davis v. Roane Cty., Tenn., 2015 WL
6738174, at *4 (E.D. Tenn. Nov. 4, 2015). To the extent that Plaintiff criticizes the facts relied
upon by Dr. Bazzel or his omission of the violations of the SHP policies by the nurses, the Court
finds that these “omissions” are “best addressed through vigorous cross-examination.” Davis,
2015 WL 6738174, *7 (“as to Defendants’ claims that she ignored the facts of this case, the Court
feels that such factual matters, the weight or lack of weight she assigned to them and the effect, if
any, on her opinions are best addressed through vigorous cross-examination.”).
Third, Plaintiff argues that the expert testimony of Nancy James, LPN, should be excluded
because she opines that SHP’s nurses met an undefined “standard of care” in their treatment of Mr.
Butler. Plaintiff maintains that Nurse James failed to consider SHP’s policies and procedures or
the employees violation of those policies during Mr. Butler’s incarceration. Plaintiff contends
that the standard of care is defined by SHP’s own policies and procedures, not “undefined”
standard of care. Once again, to the extent Plaintiff criticizes the facts relied upon by Ms. James,
the Court finds that these “factual matters, the weight or lack of weight she assigned to them and
28

the effect, if any, on her opinions are best addressed through vigorous cross-examination.”).
Davis, 2015 WL 6738174, *7
Finally, the Court rejects Plaintiff’s argument that the opinions of these experts should be
excluded because they failed to address SHP’s Policies and Procedures. As noted previously, the
Sixth Circuit has repeatedly recognized that while internal regulations and standard operating
procedures are relevant in considering the scope of the duty of care owed, they do not necessarily
create or define the precise scope of the duty owed. See Keir v. United States, 853 F.2d 398,
413B14 (6th Cir. 1988); Estes v. King’s Daughters Med. Ctr., 59 Fed. Appx. 749, 756B57 (6th Cir.
2003).
IV. DISCUSSION ON PLAINTIFF’S OBJECTIONS
A. Plaintiff’s Objection to Defendant’s Exhibits [DN 160]
The Plaintiff objects to, and moves the Court to exclude from trial, the following exhibits
that have been identified by the Defendant.
1.

All Court Documents from Criminal Proceedings against Tyler Butler

Plaintiff objects to the Defendant’s introduction of “[a]ny and all certified court documents
from criminal proceedings against Tyler Butler.” See Defendant’s Exhibit List No. 11 [DN 150].
Generally, the Court has previously held elsewhere in this Opinion that Mr. Butler’s prior criminal
history is relevant to his placement and treatment at HCDC, his knowledge of the sick call
procedure, and damages for lost power to labor and earn money.
However, the Court is unable to rule on the admissibility of specific documents because the
Defendant has not listed the individual exhibits it intends to use in its Final Exhibit List. The
Court cannot rule on the admissibility of exhibits contained in blanket-type exhibit lists. Exhibit
lists should specifically identify the document the party intends to introduce as an exhibit at trial so
29

to enable the opposing party to make an appropriate objection to the document. Copies of the
exhibits to which an objection is made should then be filed with the objections.
Accordingly, no later than January 9, 2017, the parties shall file Supplemental Final
Exhibit Lists. No later than January 30, 2017, counsel shall file any objections to any exhibit.
Copies of exhibits to which an objection is made shall be filed with the objections. If no
objections are filed, the parties will be deemed to have waived any objection to use at trial and will
be further deemed to have waived any objection as to the authenticity of any item which is to be
offered into evidence. Counsels’ attention is drawn to Local Rule 83.10 regarding marking and
designation of trial exhibits. No later than February 21, 2017, counsel shall file all responses to
any objections filed. There will be no replies.
2. Report of any Expert Witness Called to Testify or Identified in any Party’s
Expert Witness Disclosure
Plaintiff objects to the Defendant’s introduction of any written reports of the Defendant’s
experts. For the reasons set forth elsewhere in this opinion, the Plaintiffs’ objection is
SUSTAINED as to the written reports.
3. Any and All Medical and Pharmacy Records and Diagnostic Studies of Tyler
Butler
Plaintiff objects to the Defendant’s introduction of “any and all medical records and
diagnostic studies of Tyler Butler” and “[a]ny and all pharmacy records regarding Tyler Butler.”
[DN 140, Exhibits No. 16 and 17]. As noted above, the Court cannot rule on the admissibility of
these exhibits because they are contained in a blanket-type disclosure.
4. Any and All Employment Records, or Social Security Records, or Education
Records, or Income Tax Documents, including Tax Returns, of Tyler Butler
Plaintiff objects to the introduction of any and all employment records, or social security
30

records, or education records, or income tax documentation, including tax returns. [DN 150,
Exhibits 25, 26, 27, 28]. Plaintiff once again represents that she is not making a claim for lost
power to labor and earn income, and as a result, the records are not relevant. Defendant has no
objection to this motion if Plaintiff is not seeking those elements of damages. However, in
Plaintiff’s Trial Brief she clearly indicates an intent to assert a claim for lost power to labor and
earn money. As such, Plaintiff’s general objection as to these documents is OVERRULED to
the extent that she is asserting a claim for lost power to labor and earn money. However, the
Court cannot rule on the admissibility of these exhibits because they are contained in a
blanket-type disclosure.
5. Any Treatises, Journals, Books, or Other Articles Not Identified in an Expert’s
Written Report, Except for Purpose of Impeachment.
The Plaintiff objects to the Defendant’s introduction of “[a]ny and all documentation,
including treatises, journals, books, or other such articles” that are not identified in an expert
written report, except for purpose of impeachment. In response, SHP submits that it will abide by
the Federal Rules of Evidence with respect to the introduction of treatises, journals, books, or other
articles and expects the Plaintiff to do the same. Plaintiff’s objection is SUSTAINED. The
Court would note that in accordance with Fed. R. Evid. 803(18), a statement contained in learned
treatises, journals, books, or other articles relied upon by any of the experts cannot be marked or
received as an exhibit, but only read into evidence.
V. DISCUSSION ON DEFENDANT’S OBJECTIONS
A. Defendant’s Objection to Plaintiff’s Exhibits [DN 159]
Defendant objects to, and moves the Court to exclude from trial, the following exhibits that
have been identified by the Plaintiff in DN 149.
31

1. Photograph of Tyler Butler
Defendant objects to the photograph of Tyler Butler on the grounds that it is not relevant to
any of the claims or defenses at issue in the litigation, and alternatively, would be unduly
prejudicial to Defendant for the reasons set forth in Defendant’s Motion in Limine No. 9. For the
reasons set forth elsewhere in this opinion, the Defendant’s objection is OVERRULED.
2. Incident Report Form concerning Mr. Butler dated 4/11/10
Defendant objects to the Incident Report Form to the extent this document is protected
from disclosure under the attorney-client privilege, work-product doctrine, and/or any other
applicable privilege under Kentucky or Federal Law. Plaintiff withdraws her designation of this
exhibit. As such, the Defendant’s objection is SUSTAINED.
3. SHP Report to Corporate of Inmate Death Concerning Mr. Butler Dated 4/11/10
Defendant objects to the SHP Report to Corporate of Inmate Death to the extent this
document is protected from disclosure under the attorney-client privilege, work-product doctrine,
and/or any other applicable privilege under Kentucky or Federal Law. Plaintiff withdraws her
designation of this exhibit. As such, the Defendant’s objection is SUSTAINED.
4. The Final Judgment Entered against Candace Moss and Renee Keller dated
5/8/14
Defendant objects to the Offer of Judgment accepted by Plaintiff and entered against Moss
and Keller on the grounds that it is irrelevant, would not aid the jury in the disposition of any of
Plaintiff’s claims against Defendant, would only tend to confuse the jury with extraneous issues,
would be unfairly prejudicial to Defendant, and for all the reasons set forth in its Motion in Limine
No. 16. For the reasons set forth elsewhere in this opinion, the Defendant’s objection is
SUSTAINED.
32

5. SHP’s Contract with Henry Davis
Defendant objects to its contract with Henry Davis, M.D. on the grounds that it is not
relevant to any of the claims at issue in this litigation, would not aid the jury in the disposition of
deciding any of Plaintiff’s claims, would only tend to confuse the jury with extraneous issues, and
would be unduly prejudicial to Defendant. Plaintiff withdraws her designation of this exhibit. As
such, the Defendant’s objection is SUSTAINED.
6. Calendar for April 8 – 11, 2010
Defendant objects to the calendar on the grounds that Plaintiff did not identify it in their
Fed. R. Civ. P. 26(a)(1) Initial Disclosures or their responses to Defendant’s discovery requests.
In response, Plaintiff represents that the calendar is merely demonstrative evidence to help the jury
understand when and in what order relevant events in this case occurred. Any charts, drawings,
reproductions, tangible objects, documents, or calendars which are to be used in any manner
during trial, including demonstrative exhibits, should be exchanged no later than January 9,
2017. Any objections regarding this exhibit can again be raised if necessary.
7. All Pleading and Discovery in Other Civil Litigation
Defendant objects to the pleadings and discovery in other jail/SHP litigation on the
grounds that it is not relevant to any of the claims at issue in this litigation, would not aid the jury in
the disposition of deciding any of the claims at issue, would only tend to confuse the jury with
extraneous issues, and would be unduly prejudicial. Defendant argues that the pleadings and
discovery in other jail/SHP litigation should also be excluded for the reasons set forth in
Defendant’s Motion in Limine No. 11. Generally, for the reasons set forth elsewhere in this
opinion, the Defendant’s objection is SUSTAINED IN PART AND OVERRULED IN PART.
(See Section II(A)(11) infra.). However, as to specific exhibits, the Court cannot rule on the
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admissibility of these exhibits because they are contained in a blanket-type disclosure. [See DN
152-1 (a)-(f).] Plaintiff should likewise file a Supplemental Final Witness List identifying
specific documents she seeks to introduce.
B. Defendant’s Objections to Plaintiff’s Witness List [DN 158]
The Defendant objects to Dr. John Adams and Dr. Ronald Waldridge as witnesses in this
matter because Plaintiff did not identify these witnesses in their Fed. R. Civ. P. 26(a)(1) Initial
Disclosures, their responses to Defendant’s discovery requests, or their expert disclosures.
Defendant further argues that that their testimony is not relevant to any of the claims at issue in this
litigation, would not aid the jury in disposition of deciding any of Plaintiff’s claims against
Defendant, would only tend to confuse the jury with extraneous issues, and would be unduly
prejudicial. Defendant notes that Drs. Adams and Waldridge are medical directors at other
prisons involved in separate civil litigation, they never provided any care or treatment to Mr.
Butler at the HCDC, and they have no personal knowledge of the events or the treatment Mr.
Butler did receive.

Defendant further argues that these witnesses’ personal knowledge of

treatment provided to other inmates at other prisons involved in separate litigation has no bearing
on or relation to the care and treatment received by Mr. Butler at HCDC. It would confuse the
jury and cast Defendant in a derogatory light in hopes of inflaming the passions of the jury.
In response, Plaintiff argues that Defendants are not prejudiced by Plaintiff’s
Supplementation. Plaintiff indicates that both individuals have been involved in lawsuits with
Defendant in which the plaintiffs in those cases demonstrate that their serious medical needs were
neglected by Defendant’s employees, Defendant’s employees violated Defendant’s policies and
procedures, and Defendant’s employees failed to contact Defendant medical directors about an
inmate until after the inmate had been hospitalized or had died. Plaintiff indicates that she intends
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to call Drs. Adams and Waldridge as witnesses at trial only in the event that she needs to rebut any
testimony of Defendant’s witness in which they deny knowledge of prior comparable incidents
involving the doctors, or dispute the uncontested facts of prior incidents involving the doctors, or
testify contrary to the doctors’ deposition testimony in previous litigation. Plaintiff maintains that
the doctors can testify about Defendant’s practice of staffing jails primarily with nurses unfamiliar
with its written policies and practices and unsupervised by an absentee medical director, has
caused numerous deaths and near-deaths in jails throughout Kentucky.
Plaintiff states that it should be permitted to ask Defendant’s witnesses about inmate deaths
in which Defendant’s nurses failed to follow its policies and procedure, in which the medical
director was not contacted about the inmate until the inmate had died or almost died, and which
were not investigated by Defendant or its investigation produced no change in policies,
procedures, or training. If they deny knowledge, or dispute the uncontested facts of prior
incidents, or testify contrary to the doctor’s deposition testimony in other cases, Plaintiff should be
permitted to call the doctors to testify consistent with their deposition testimony as rebuttal
witnesses.
For the reasons set forth elsewhere in this opinion, Defendant’s objection is SUSTAINED
IN PART AND OVERRULED IN PART. As the Court noted above, in pursuing a pattern
theory of constitutional violations, evidence of similar incidents of inmates’ deaths in jails served
by SHP is relevant to whether SHP acted with deliberate indifference to the medical needs of
Butler. While the incidents of these deaths or near-deaths, along with SHP’s investigation and
changes in training, may be relevant, the fact that lawsuits were filed in those instances is not
relevant. Drs. Adams and Waldridge may not be called in Plaintiff’s case-in-chief. Plaintiff has
identified these witnesses as rebuttal witnesses which are not within the scope of Rule 26(a)(1).
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See Bennett v. Bd. of Educ. of Washington Cty. Joint Vocational Sch. Dist., 2011 WL 4753414, *5
(S.D. Ohio Oct. 7, 2011). Furthermore, these witnesses are not rebuttal expert witnesses whose
reports must be submitted within the period set forth in Rule 26(a)(2)(D)(ii). See Teledyne
Instruments, Inc. v. Cairns, 2013 WL 5781274, *17 (M.D. Fla. Oct. 25, 2013).
VI. DEFENDANT’S MOTION FOR LEAVE TO SUPPLEMENT WITNESS LIST [DN 166]
On July 7, 2016, Defendant moved for leave to supplement its witness list to add Jennifer
Braizer. Braizer is an employee of SHP and is designated to testify regarding the training of SHP
employees.

Defendant states that the witness was inadvertently omitted from Defendant’s

original witness list, and the supplement was made immediately upon discovery of the omission.
In response, Plaintiff objects to the addition of Braizer to Defendant’s witness list. Plaintiff
argues that Brazier is nowhere mentioned in any of the pleadings or discovery in this case, and she
has not been deposed. Plaintiff argues that permitting Defendant to supplement its witness list
little more than thirty days before trial to add Braizer will significantly prejudice Plaintiff. In
reply, Defendant notes that if the Court grants Plaintiff’s motion to continue, Plaintiff will have
several months to take the requested deposition, and SHP would agree to produce her for such
deposition at Plaintiff’s convenience. Thus, Plaintiff would not be prejudiced by the requested
leave to supplement its witness list.
Because the trial was continued, the Court GRANTS Defendant’s motion to supplement
its witness list. Discovery is reopened on a limited basis to permit Plaintiff to depose Jennifer
Braizer. No later than November 1, 2016, Plaintiff shall depose Jennifer Braizer.
VII. DISCUSSION OF ISSUES RAISED IN PARTIES’ TRIAL BRIEFS
Pursuant to the Court’s scheduling order, the parties filed their trial briefs addressing any
factual or legal issues that could be anticipated to arise at trial. The parties have raised numerous
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issues that warrant discussion prior to trial.
A. Plaintiff’s Trial Brief [DN 179]
1. Training Program
Plaintiff states that the Sixth Circuit has already found as a matter of law that Defendant
had no training program at all. Shadrick v. Hopkins County, 805 F.3d 724, 740 (6th Cir. 2015).
Thus, according to Plaintiff, under such circumstances the jury need only determine whether
Defendant’s failure to train its nurses in meeting their constitutional obligations demonstrated its
own deliberate indifference to the highly predictable consequence that a nurse would commit a
constitutional violation or that “the unconstitutional consequences of failing to train” were “so
patently obvious” that Defendant should be held “liable under § 1983 without proof of a
pre-existing pattern of violations.” Id. at 740.
The Court disagrees. In addressing the Plaintiff’s deliberate indifference claim, the Sixth
Circuit examined the evidence in the light most favorable to the Plaintiff and concluded that “a
reasonable jury could find that SHP was deliberately indifferent to the need to train and supervise
its LPN nurses to provide adequate medical care to inmates, especially in view of the obvious risk
that the Constitution could be violated without such training and supervision.” Shadrick, 805 F.3d
at 741. Significantly, the Sixth Circuit held:
Shadrick produced sufficient evidence to create genuine issues of material fact for
trial on all three elements of her § 1983 claim against SHP for failure to train and
supervise the LPN nurses. She met SHP’s summary judgment motion with
evidence that SHP's training program is inadequate for the tasks the LPN nurses are
required to perform, that the inadequacy resulted from SHP’s deliberate
indifference, and that the inadequacy actually caused, or was closely related to,
Butler’s injury. Summary judgment on the § 1983 claim was unwarranted, thus
requiring us to reverse and remand the case for further proceedings on this claim.
Shadrick, 805 F.3d at 744. Thus, contrary to Plaintiff’s argument, the Sixth Circuit has not
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resolved this issue, but remanded so a jury could.
2. Causation
Plaintiff contends that there is no issue as to causation because there is no evidence that Mr.
Butler would have died had he not been incarcerated in the HCDC and dependent upon
Defendant’s care. Vincent v. Warren County, 629 Fed. Appx. 735 (6th Cir. 2015). As discussed
above, while it is undisputed the Plaintiff died while incarcerated at the HCDC, there is a genuine
dispute as to whether there was a breach of duty, an injury, or whether the injury was caused by
Defendant’s actions. See II(B)(3)(infra). Thus, contrary to Plaintiff’s argument, there is a
genuine dispute of material fact regarding whether Mr. Butler suffered a fatal injury due to his
confinement in the HCDC.
B. Defendant’s Trial Brief [DN 183]
1. Negligent Training and Supervision Claim
Defendant argues that Plaintiff did not plead negligent training and supervision, but only
negligence; and therefore negligent training and supervision is not a proper claim. Defendant
notes that the Kentucky Court of Appeals in Rankin v. Jefferson Special Police, Inc., 2013 WL
5312504 (Ky. Ct. App. Sept. 20, 2013), refused an instruction on negligent supervision and
training where a plaintiff failed to allege those elements but rather only generally alleged that the
defendant was negligent. Id. at *3 (“The torts of negligent training and supervision were first
recognized in Smith v. Isaacs, 777 S.W.2d 912, 914 (Ky. 1989). They are separate torts from
general negligence.”).
In Plaintiff’s second amended complaint, Plaintiff alleges that “[t]he offenses described
below resulted from the failure of the County and the supervisory officials . . . to employ qualified
persons for positions of authority, and/or to properly train and supervise the conduct of such
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persons after their employment, and/or to promulgate appropriate operating policies and
procedures. . . .” (Second Amended Complaint at ¶ 9 [DN 129]). Accordingly, the Court finds
that the second amended complaint sufficiently pleads a negligent training and supervision claim.
Defendant further argues that entry of the judgment against Candace Moss and Renee
Keller and subsequent satisfaction of that judgment prohibits Plaintiff from asserting a claim of
vicarious liability against SHP and limits the damages Plaintiff will be able to recover. Day v.
Davidson, 951 P.2d 378, 381-383 (Wyo. 1997); Manjarres v. Cont’l Tire N. Am., Inc., 2007 WL
779725 (D. Ariz. 2007); Waddle v. Galen of Ky. Inc., 131 S.W.3d 361 (Ky. App. 2002)(“The
appellants vicarious liability claim against Cumberland was derived solely from the alleged
negligence of Dr. Brown. Accordingly, the release executed in favor of Dr. Brown inured to the
benefit of Cumberland to bar the appellants vicarious liability claim.”). It would appear to the
Court that Plaintiff seeks to hold SHP liable for its own negligence in failing to train or supervise.
See, e.g., Vincent v. Warren County, 629 Fed. Appx. 735 (6th Cir. 2015)(plaintiff seeks to hold
jailer liable for his own alleged negligence in failing to train and supervise deputy jailers).
2. Deliberate Indifference
Defendant represents that in order to prove that SHP is deliberately indifferent to Butler’s
medical needs, Plaintiff will need to prove that a SHP’s staff member violated Butler’s
constitutional rights. According to Defendant, because Angela Pleasant and Betty Dawes were
dismissed on the merits, the only staff members who could be found to have violated Butler’s
rights are Candace Moss or Renee Keller. Defendant maintains that its staff did not violate
Butler’s constitutional rights. Defendant contends that if the Plaintiff proves that Candace Moss
or Renee Keller violated Butler’s rights, Plaintiff will then be required to prove that SHP is
responsible for that violation by proving the elements of the claims against an institution.
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Plaintiff has not addressed the issue of whether she is required to prove the deliberate indifference
of any employee of SHP before she can hold SHP liable on a failure to train theory. However, the
Plaintiff did not tender a jury instruction on the individual liability of Moss, Keller, or any other
SHP employee.
“[T]he Sixth Circuit has repeatedly held that municipal defendants cannot be held liable if
no constitutional violation by its employees has been established.” Modd v. County of Ottawa,
2012 WL 5398797, at *20 (W.D. Mich. Aug. 24, 2012)(“Relieving plaintiffs of the obligation to
show a culpable state of mind by any human being would certainly change the face of section 1983
litigation in this circuit. Unfortunately for plaintiff, such a result contravenes settled authority,
which requires a showing both of individual indifference and that the municipality’s policies were
the motivating force behind that violation.”)(citing Meier v. County of Presque Isle, 376 Fed.
Appx. 524, 530–31 (6th Cir. 2010); Denning ex rel. Denning v. Metro. Gov't of Nashville, 330
Fed. Appx. 500, 506 (6th Cir. 2009); Estate of Harbin v. City of Detroit, 147 Fed. Appx. 566, 572–
73 (6th Cir. 2005); Napier v. Madison County, Ky., 238 F.3d 739, 743 (6th Cir. 2001)). See also
Lawrence v. Madison County, 2016 WL 1306394, at *13 (E.D. Ky. Mar. 31, 2016); Holt v.
Campbell County, Ky., 2013 WL 5410482 (E.D. Ky. Sept. 25, 2013); Hughes v. Campbell
County., Ky., 2015 WL 3649824, at *7 (E.D. Ky. June 11, 2015)(“The claim against SHP also
fails because a plaintiff cannot proceed against a corporate entity under § 1983 without showing an
actual violation of his constitutional rights.”). In fact, “the Sixth Circuit considers the issues of
individual liability and municipal liability to be ‘inextricably linked.’” Modd, 2012 WL 5398797,
at *20 (W.D. Mich. Aug. 24, 2012)(citing Cooper v. County of Washtenaw, 222 Fed. Appx. 459,
473 (6th Cir. 2007)).

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This law is applicable to failure to train cases brought against a municipality or corporate
entity. See Crocker ex rel Estate of Tarzwell v. City of Macomb, 119 Fed. Appx. 718, 724 (6th
Cir. 2005) (“If the plaintiff fails to establish a constitutional violation by an individual officer, the
local government unit cannot be held liable for a failure to train under § 1983.”); Estate of Harbin
v. City of Detroit, 147 Fed. Appx. 566, 572 (6th Cir. 2005)(“a municipality’s failure to train may
be the moving force behind a resulting injury but cannot be an injury in and of itself.”); Watkins v.
City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001)(holding that analysis of whether the
municipal defendant failed to provide its jail officers with adequate training is unnecessary when
the plaintiff-detainee fails to establish that the officers committed a constitutional violation);
Napier v. Madison County, Ky., 238 F.3d 739, 743 (6th Cir. 2001)(declining to consider whether
the municipal defendant failed to provide adequate training to its jail officers because
plaintiff-detainee “cannot show that he suffered an underlying constitutional violation”).
Therefore, to succeed in her claim against SHP under § 1983, Plaintiff must show that (1) a
SHP employee deprived Mr. Butler of his constitutional rights and (2) SHP is responsible for that
deprivation.

Lawrence v. Madison Cty., 2016 WL 1306394, at *13 (E.D. Ky. Mar. 31,

2016)(citing Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.
2006)).
Finally, whether Defendant is entitled to an apportionment instruction and whether
Plaintiff is entitled to a spoliation of evidence instruction will be decided at trial.
Given the Court’s decision with respect to some of the legal issues presented in the parties’
trial briefs, the parties will need to file supplemental jury instructions to aid the Court in properly
instructing the jury. No later than March 13, 2017, the parties shall file supplemental jury
instructions.
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VIII. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED motions in limine filed by
Defendant Southern Health Partners [DN 157] and by Plaintiff [DN 161] are GRANTED IN
PART AND DENIED IN PART consistent with this opinion;
IT IS FURTHER ORDERED that the Defendant’s objection to Plaintiff’s witness list
[DN 158] is OVERRULED.
FURTHER that Plaintiff’s objection to Defendant’s witness list [DN 162] is
SUSTAINED IN PART AND OVERRULED IN PART consistent with this opinion.
FURTHER that Plaintiff’s objection to Defendant’s exhibit list [DN 160] and Defendant’s
objection to Plaintiff’s exhibit list [DN 159] are SUSTAINED IN PART AND OVERRULED
IN PART consistent with this opinion.
FURTHER no later than January 9, 2017, the parties shall file Supplemental Final
Exhibit Lists. Any charts, drawings, reproductions, tangible objects, documents, or calendars
which are to be used in any manner during trial, including demonstrative exhibits, should be
exchanged by this date as well. No later than January 30, 2017, counsel shall file any
objections to any exhibit. Copies of exhibits to which objection is made shall be filed with the
objections. If no objections are filed, the parties will be deemed to have waived any objection to
use at trial and will be further deemed to have waived any objection as to the authenticity of any
item which is to be offered into evidence. Counsels’ attention is drawn to Local Rule 83.10
regarding marking and designation of trial exhibits. No later than February 21, 2017, counsel
shall file all responses to any objections filed. There will be no replies. No later than March
13, 2017, the parties shall file supplemental jury instructions.
FURTHER that Defendant’s motion to strike Plaintiff’s untimely Daubert motions [DN
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167] is DENIED.
FURTHER that Defendant’s motion for leave to supplement its witness list [DN 166] is
GRANTED. Discovery is reopened on a limited basis to permit Plaintiff to depose Jennifer
Braizer. No later than November 1, 2016, Plaintiff shall depose Jennifer Braizer.

cc: counsel of record

August 31, 2016

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