Nagle et al v. Gusman et al

Filing 286

ORDER AND REASONS granting in part and denying in part Plaintiffs' MOTION 246 to exclude the testimony of Dr. James F. Hooper under Federal Rule of Evidence 702.. Signed by Judge Sarah S. Vance on 2/10/16. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARGARET GOETZEE NAGLE and
JOHN ERIC GOETZEE

CIVIL ACTION

VERSUS

NO. 12-1910

SHERIFF MARLIN GUSMAN, ET AL.

SECTION "R" (2)

ORDER AND REASONS
Plaintiffs Margaret Goetzee Nagle and John Eric Goetzee move to
exclude the testimony of Dr. James F. Hooper under Federal Rule of Evidence
702. Dr. Hooper is the proposed expert of defendant Dr. Charles “Mike”
Higgins. For the following reasons, the Court GRANTS IN PART and DENIES
IN PART the motion.

I.

BACKGROUND
A.

Factual Background

This action arises out of the August 7, 2011 suicide of William Goetzee,
an inmate of Orleans Parish Prison (“OPP”). Following Goetzee’s death,
Margaret Goetzee Nagle and John Eric Goetzee filed this section 1983 civil
rights suit and state-law suit against numerous employees of the Orleans
Parish Sheriff’s Office, including Dr. Charles “Mike” Higgins.1 Plaintiffs are
1

R. Doc. 1.

the siblings of decedent William Goetzee.2

Dr. Higgins is a licensed

psychiatrist, and at the time of Goetzee’s death, Higgins was the Director of
Psychiatric Services for the Sheriff’s Office. According to the job description
for this position, Dr. Higgins was generally responsible for overseeing the
provision of psychiatric services within OPP and for supervising the daily
operations of OPP’s Mental Health Unit.3
Goetzee was a commander in the United States Coast Guard Reserve and
a civilian employee of the Coast Guard. On the morning of August 2, 2011,
Goetzee approached a marked Federal Protective Services vehicle occupied by
a uniformed law-enforcement officer. Goetzee opened the front passenger
door, entered the vehicle, and seated himself in the front passenger seat.
Goetzee lunged for the officer’s weapon, exclaiming, “I want to kill myself, give
me your gun.” Federal agents arrested Goetzee and transported him to OPP
later that day.
The next day, on August 3, prison officials brought Goetzee to federal
court for his initial appearance on charges related to his conflict with the

2

The Court derives the following factual summary from its earlier summary
judgment order. See R. Doc. 113. The Court has indicated where it relies on newlysupplied information.
3

R. Doc. 284, Exhibit B (attached in support of Dr. Higgins’s Motion for
Summary Judgment).

2

federal officer during his suicide attempt the day before. While at court,
Goetzee behaved strangely in the presence of his attorney, federal officers, and
the judge. Goetzee’s attorney informed the court that he was “obviously
having mental issues.” Back at OPP, a nurse alerted Dr. Higgins to Goetzee’s
behavior, and Dr. Higgins ordered that Goetzee be transported to University
Hospital to “rule out delirium.”4 Two days later, on August 5, University
Hospital discharged Goetzee back to OPP with a diagnosis of psychosis. On
August 6, Dr. Higgins conducted an “Initial Psychiatric Evaluation” of Goetzee.
From this evaluation, Dr. Higgins ordered that Goetzee be housed in OPP’s
Mental Health Tier, given a “Suicide Smock,” and placed on direct
observation.5 Dr. Higgins’s “direct observation” order required a Sheriff’s
Office employee to “maintain direct and constant observation” of Goetzee at
all times, i.e., “suicide watch.”
Goetzee was under suicide watch on August 6 and 7, 2011. On the
morning of August 7, OPP Deputy William Thompson was assigned to
maintain supervision of Goetzee. During his suicide watch shift, Thompson
left his post at least three times, leaving Goetzee unobserved each time.

4

R. Doc. 266, Exhibit I (attached in opposition to Defendants’ Motions for
Summary Judgment).
5

Id.

3

During these absences, Goetzee went unobserved for an hour and a half,
fifteen minutes, and two hours, respectively.

During Thompson’s final

absence, an inmate notified another on-duty officer that Goetzee was lying on
the floor of his cell, unresponsive. Apparently, Goetzee had repeatedly
swallowed wads of toilet paper while Thompson was not monitoring him and
asphyxiated himself.
As a result of these events, Thompson pleaded guilty to the felony of
malfeasance in office. While under oath, and as part of his plea, Thompson
accepted the state’s factual basis for the charge. The factual basis specified
that Thompson was assigned to monitor Goetzee continuously; that Thompson
left his post three times for one and one-half hours, fifteen minutes, and two
hours, respectively; that another inmate discovered Goetzee unconscious while
Thompson was not monitoring him; and that Thompson had fraudulently
submitted an observation checklist for August 7, 2011, because the checklist
indicated that Thompson had continuously monitored Goetzee all day when
in fact Thompson had not done so.
In addition, the Court has already granted summary judgment in favor
of plaintiffs on their section 1983 and state-law claims against Thompson. The
Court has also granted summary judgment against Sheriff Gusman on
plaintiffs’ state-law vicarious liability claims and partial summary judgment
4

on plaintiffs’ section 1983 claims.
B.

Dr. James Hooper’s Proffered Expert Opinion

Dr. Higgins enlisted James F. Hooper, M.D., as an expert witness to
testify on his behalf.

Dr. Hooper is a board-certified neurologist and

psychiatrist who is licensed to practice in Alabama. Dr. Hooper served as the
Chief Psychologist for the Tuscaloosa County Jail from 2004 to 2010.6 Dr.
Hooper purports to offer eleven expert opinions about “the reasonableness of
the actions and conduct of Dr. Charles M. Higgins and others.”7
Plaintiffs now move to exclude Dr. Hooper’s testimony and expert report
for two reasons.8 First, plaintiffs argue that Dr. Hooper has impermissibly
opined on witness credibility. Second, plaintiffs argue that one of Dr. Hooper’s
opinions purports to offer a legal conclusion about which he cannot testify.
Plaintiffs’ arguments regarding witness credibility rely on Dr. Hooper’s

6

R. Doc. 246, Exhibit B, at 1.

7

See generally id. Dr. Hooper appears to have misnumbered the last three
of his enumerated opinions; regardless, there are eleven total.
8

R. Doc. 246; R. Doc. 246-1. Plaintiffs also argue in a footnote that Dr.
Hooper attempts to offer an expert opinion on Deputy Thompson’s conduct and that
this opinion is nothing more than a statement of uncontested facts. See R. Doc. 264-1 at
2 n. 1. The Court finds this argument unpersuasive. It is true that none of the facts
about Thompson’s conduct is in dispute given Thompson’s guilty plea, the
accompanying factual basis, and the summary judgment granted by this Court. Fairly
read, however, Dr. Hooper’s report relies on Thompson’s conduct in forming his opinion
about the scope of Dr. Higgins’s duties and the reasonableness of his behavior.

5

deposition testimony that he believed that “Dr. Higgins’ version of events was
more truthful” than an explanation provided by another witness.9 At the
deposition, plaintiffs’ counsel repeatedly asked Dr. Hooper whether he
determined that Dr. Higgins was “truthful” or “credible” before forming his
expert opinions. Dr. Hooper responded affirmatively when asked if he
“factored” Dr. Higgins’s “version of events” into his opinions.10
Later in his deposition, Dr. Hooper also explained that he reviewed all
of the evidence, but declined to make any credibility determinations.
Specifically, Dr. Hooper testified that he did not “give more weight” to or
prefer Dr. Higgins’s testimony over the testimony of other witnesses.11
Plaintiffs also argue that one of Dr. Hooper’s opinions is instead a legal
conclusion. In his expert report, Dr. Hooper opines that “Dr. Higgins was not
‘deliberately indifferent’ to the plight of inmates” at OPP.12 He notes as
support for this opinion that “Dr. Higgins repeatedly tried to correct the lack
of services and staffing” and that “Dr. Higgins was the sole psychiatrist who

9

R. Doc. 251, Exhibit B.

10

Id. at 109-12.

11

R. Doc. 251, Exhibit A, at 210-12.

12

R. Doc. 246, Exhibit B, at 7.

6

stayed after Hurricane Katrina to care for the inmates.”13 At his deposition,
Dr. Hooper also testified at length about whether Dr. Higgins was deliberately
indifferent.
Dr. Hooper defined “deliberate indifference” as “not car[ing] at all and
not do[ing] anything to try to fix things.”14 Dr. Hooper also offered examples
of what, in his mind, does and does not constitute deliberate indifference.15
Finally, Dr. Hooper explained that he bases his understanding of deliberate
indifference on his reading of two “landmark” Supreme Court cases. Dr.
Hooper also compared the facts of those cases to the conduct of Dr. Higgins.16
The Court now analyzes whether Dr. Hooper’s opinions are admissible.

II.

LEGAL STANDARD
When expert testimony offered by one party is subject to a Daubert

challenge, the court must act as a “gatekeeper” under Federal Rule of Evidence
702.
A district court has considerable discretion to admit or exclude expert

13

Id.

14

R. Doc. 251, Exhibit A, at 132.

15

Id. at 132-33, 135, 151.

16

Id. at 209-10.

7

testimony under Rule 702. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39
(1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 371 (5th Cir. 2000).
Rule 702, which governs the admissibility of expert witness testimony,
provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is
the product of reliable principles and methods; and (d) the expert
has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court
held that Rule 702 requires the district court to act as a gatekeeper to ensure
that “any and all scientific testimony or evidence admitted is not only relevant,
but reliable.” 509 U.S. at 589; see also Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 147 (1999) (clarifying that the Daubert gatekeeping function
applies to all forms of expert testimony). The Court’s gatekeeping function
thus involves a two-part inquiry into reliability and relevance.
First, the Court must determine whether the proffered expert testimony
is reliable. The party offering the testimony bears the burden of establishing
its reliability by a preponderance of the evidence. See Moore v. Ashland
8

Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry requires
the Court to assess whether the reasoning or methodology underlying the
expert’s testimony is valid. See Daubert, 509 U.S. at 592-93. The aim is to
exclude expert testimony based merely on subjective belief or unsupported
speculation. See id. at 590.
The Court in Daubert articulated a flexible, non-exhaustive, five-factor
test to assess the reliability of an expert’s methodology: (1) whether the
expert’s theory can be or has been tested; (2) whether the theory has been
subject to peer review and publication; (3) the known or potential rate of error
of a technique or theory when applied; (4) the existence and maintenance of
standards and controls; and (5) the degree to which the technique or theory
has been generally accepted in the scientific community. Id. at 593-95. The
Supreme Court has emphasized, however, that these factors “do not constitute
a ‘definitive checklist or test.’” Kumho, 526 U.S. at 150 (quoting Daubert, 509
U.S. at 593). Rather, district courts “must have considerable leeway in
deciding in a particular case how to go about determining whether particular
expert testimony is reliable.” Id. at 152.
A district court’s gatekeeper function does not replace the traditional
adversary system or the role of the jury within this system. See Daubert, 509
U.S. at 596.

As the Supreme Court noted in Daubert: “Vigorous
9

cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.” Id. The Fifth Circuit has held that, in
determining the admissibility of expert testimony, district courts must accord
proper deference to “the jury’s role as the proper arbiter of disputes between
conflicting opinions. As a general rule, questions relating to the bases and
sources of an expert’s opinion affect the weight to be assigned that opinion
rather than its admissibility and should be left for the jury’s consideration.”
United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty.,
Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chem. Co.,
826 F.2d 420, 422 (5th Cir. 1987)).
Second, the Court must determine whether the expert’s reasoning or
methodology is relevant. The question here is whether the reasoning or
methodology “fits” the facts of the case and will thereby assist the trier of fact
to understand the evidence. See Daubert, 509 U.S. at 591. “[F]undamentally
unsupported” opinions “offer[] no expert assistance to the jury” and should be
excluded. Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005) (citing
Viterbo, 826 F.2d at 422).

III. DISCUSSION
10

Here, plaintiffs do not challenge Dr. Hooper’s expert opinion in the
classic sense that would require the Court to distinguish between speculative
or unreliable scientific methodology and legitimate expertise. Plaintiffs have
not argued that Dr. Hooper is unqualified or that his methodology is unsound.
Instead, plaintiffs argue that Dr. Hooper’ opinion testimony is unhelpful, and
therefore inadmissible, because Dr. Hooper has invaded the jury’s role by
determining witness credibility and reaching legal conclusions.
A.

Dr. Hooper Does Not Purport to Opine on Witness
Credibility

Plaintiffs first argue that Dr. Hooper’s expert testimony is inadmissible
because, according to plaintiffs, his deposition testimony offers an “opinion”
on witness credibility.
To be admissible, expert testimony must “help the trier of fact to
understand the evidence or determine a fact in issue.” Fed. R. Evid. 702. As
a general rule, an expert may not opine on another witness’s credibility
because this testimony does not help the trier of fact, who can make its own
credibility determinations. See, e.g., United States v. Hill, 749 F.3d 1250, 1260
(10th Cir. 2014) (collecting cases). The jury is “the final arbiter of the facts,”
and thus testimony about witness credibility or state of mind is unnecessary
and unhelpful. See United States v. Libby, 461 F. Supp. 2d 3, 7 (D.D.C. 2006)
11

(citation omitted). Accordingly, courts often preclude experts from testifying
that, in their expert opinion, a certain witness is or is not believable. See, e.g.,
Hill, 749 F.3d at 1263 (reversing for plain error when expert testified at trial
about whether defendant was lying); Nimely v. City of New York, 414 F.3d
381, 398 (2d Cir. 2005) (finding abuse of discretion when district court
allowed a medical expert to testify about how often he believed police officers
lied); United States v. Wertis, 505 F.2d 683, 685 (5th Cir. 1974) (affirming
district court’s exclusion of a psychiatrist offered to testify about a witness’s
ability to “distinguish[] truth from non-truth”).
Here, the Court has reviewed both Dr. Hooper’s expert report and his
deposition testimony. None of Dr. Hooper’s proffered opinions, as articulated
in his expert report, amounts to a credibility determination. According to his
expert report, as well as his deposition testimony, Dr. Higgins reviewed
voluminous evidence to prepare his opinions, including medical records;
forms and policies and procedures from OPP; and the deposition transcripts
of numerous witnesses, among other documents. Dr. Hooper also testified
that he carefully reviewed all of the available evidence and that he equally
considered each witness’s testimony.
The deposition responses that plaintiffs challenge reflect that Dr. Hooper
may have resolved a disputed fact in favor of one party before reaching his
12

opinions. This does not render his testimony inadmissible. While Daubert’s
reliability analysis applies to “the facts underlying the expert’s opinion,” expert
testimony need only be based on “sufficient facts or data.” Fed. R. Evid. 702;
Moore v. Int’l Paint, LLC, 547 F. App’x 513, 515 (5th Cir. 2013). “When facts
are in dispute, experts sometimes reach different conclusions based on
competing versions of the facts.” Fed. R. Evid. 702, Advisory Committee Note;
Moore, 547 F. App’x at 515. Indeed, as plaintiffs argue in support of their own
expert,17 “experts may rely on one version of a disputed fact.” Arnold v. Canal
Barge Co., Inc., No. 13-4966, 2014 WL 2465313, at *2 (E.D. La. 2014); accord
Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1392 (Fed. Cir. 2003)
(noting both sides presenting experts who based their opinions on the hiring
party’s version of the disputed facts); Walker v. Gordon, 46 F. App’x 691, 69596 (3d Cir. 2002) (“An expert is, nonetheless, permitted to base his opinion on
a particular version of disputed facts . . . .”); Little v. Nat’l R.R. Passenger
Corp., 865 F.2d 1329, 1988 WL 145095, at *2 (D.C. Cir. 1988) (holding that an
expert may assume a disputed fact as true so long as “a factual predicate for
the testimony . . . exist[s]”). Questions related to the bases and sources of an
expert’s opinion affect the weight accorded to that opinion, rather than its

17

R. Doc. 260 at 10 (Plaintiffs’ Memorandum in Opposition to Defendants’
Motions to Exclude the Opinions of Dr. Jeffrey Metzner).

13

admissibility. United States v. 14.38 Acres of Land, More or Less Situated in
Leflore Cty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1996). “[T]he fact-finder is
entitled to hear [an expert’s] testimony and decide whether it should accept or
reject that testimony after considering all factors that weigh on credibility,
including whether the predicate facts on which [the expert] relied are
accurate.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002).18
B.

Dr. Hooper’s Opinion that Dr. Higgins Was Not
“Deliberately Indifferent” Is an Inadmissible Legal
Conclusion

Although an expert’s opinion may “embrace an ultimate issue” to be
decided by the trier of fact, expert witnesses are not permitted to offer legal
conclusions. See Fed. R. Evid. 704; Goodman v. Harris Cty., 571 F.3d 388,
399 (5th Cir. 2009); C.P. Interests, Inc. v. California Pools, Inc., 238 F.3d 690,
697 (5th Cir. 2001). An expert who usurps either the role of the judge by
instructing the jury on the applicable law or the role of the jury by applying the
law to the facts at issue “by definition does not aid the jury in making a
decision[.]” Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005)
(citations omitted); see also Burkhardt v. Wash. Metro. Area Transit Auth.,

18

Nonetheless, the Court will not allow questions regarding whether an
expert believes certain witnesses to be “credible” or “truthful.” See Hill, 749 F.3d at
1256-63 (finding plain error when counsel questioned an expert regarding defendant’s
truthfulness).

14

112 F.3d 1207, 1212 (D.C. Cir. 1997) (“Expert testimony that consists of legal
conclusions cannot properly assist the trier of fact . . . .”). Rather, such an
expert “undertakes to tell the jury what result to reach and thus attempts to
substitute the expert’s judgment for the jury’s . . . .” Nimely, 414 F.3d at 397
(citation omitted). Accordingly, although “an expert may offer his opinion as
to facts that, if found, would support a conclusion that the legal standard at
issue was satisfied . . . he may not testify as to whether the legal standard has
been satisfied.” Burkhardt, 112 F.3d at 1212-13.
Here, Dr. Hooper offers as one of his expert opinions that “Dr. Higgins
was not ‘deliberately indifferent’ to the plight of inmates.” At his deposition,
Dr. Hooper explained this opinion by defining “deliberate indifference,”
analyzing Supreme Court precedent, and comparing and contrasting Dr.
Higgins’ conduct to hypothetical examples. “Deliberate indifference” is a legal
term. See Stewart v. Murphy, 174 F.3d 530, 541 n.9 (5th Cir. 1999). And “[i]t
is the responsibility of the court, not testifying witnesses, to define legal
terms.” Bradley v. City of Ferndale, 148 F. App’x 499, 508 (6th Cir. 2005).
Dr. Hooper’s opinion and testimony regarding “deliberate indifference” plainly
constitutes a legal conclusion. It is therefore inadmissible. See, e.g., Cutlip
v. City of Toledo, 488 F. App’x 107, 120-21 (6th Cir. 2012) (excluding an
expert’s opinion regarding “conscious indifference”); Omar v. Babcock, 177 F.
15

App’x 59, 63 n.5 (11th Cir. 2006) (excluding portions of an affidavit in which
an expert opinion as to whether appellants acted with “deliberate
indifference”); Woods v. Lecureux, 110 F.3d 1215, 1219-21 (6th Cir. 1997)
(excluding expert’s testimony on “deliberate indifference”).
To be clear, the Court excludes only Dr. Hooper’s opinion on whether Dr.
Higgins was deliberately indifferent.

As an expert in psychiatry with

experience in correctional facilities, Dr. Hooper may testify at trial about the
professional standard of care expected of a prison psychiatrist such as Dr.
Higgins, and whether Dr. Higgins’s conduct conformed to the applicable
standard of care. Dr. Hooper may also testify about purported staffing
inadequacies at OPP and whether Dr. Higgins responded reasonably to those
deficiencies. But Dr. Hooper may not offer a conclusion as to whether Dr.
Higgins’s conduct amounted to “deliberate indifference.”

16

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES

IN PART plaintiffs’ motion to exclude Dr. James F. Hooper.

10th
New Orleans, Louisiana, this ___ day of February, 2016.

____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

17