Nagle et al v. Gusman et al

Filing 287

ORDER AND REASONS granting in part and denying in part 234 Motion in Limine to exclude the testimony and expert report of Dr. Elizabeth Ford.. Signed by Judge Sarah S. Vance on 2/12/16. (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
Defendant Dr. Charles “Mike” Higgins moves the Court to exclude the
testimony and expert report of Dr. Elizabeth Ford under Federal Rule of
Evidence 702.1 Dr. Ford is the proposed psychiatric expert of plaintiffs
Margaret Goetzee Nagle and John Eric Goetzee. 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, his
siblings, Margaret Goetzee Nagle and John Eric Goetzee, filed this section

1

R. Doc. 234.

1983 civil rights and state-law suit against numerous employees of the
Orleans Parish Sheriff’s Office.2
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
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. Charles “Mike”
Higgins to Goetzee’s behavior, and Dr. Higgins ordered that Goetzee be

R. Doc. 1. 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 newly-supplied information.
2

transported to University Hospital to “rule out delirium.”3 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 and placed on
direct observation. 4 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.
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

R. Doc. 266, Exhibit I (attached in opposition to Defendants’ Motions
for Summary Judgment).
3

4

Id.

swallowed wads of toilet paper and asphyxiated himself while Thompson was
not monitoring him.
As a result of these events, Thompson pleaded guilty to the crime 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 continuously monitor Goetzee; 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.
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’ statelaw vicarious liability claims and partial summary judgment on plaintiffs’
section 1983 claims.
B.

Dr. Elizabeth Ford’s Proffered Expert Opinion

Plaintiffs enlisted Elizabeth Ford, M.D., as an expert witness to testify
about Goetzee’s psychiatric condition.

Dr. Ford is a board-certified

psychiatrist, neurologist, and forensic psychiatrist. Dr. Ford currently serves
as the Chief of Psychiatry for Correctional Health Services for New York City
Health and Hospitals. Her areas of expertise include “the diagnosis and
treatment of mental illness in jails, research in correctional settings, violence
and suicide risk assessments, and psychiatric education.” 5 In addition, Dr.
Ford has written and/or contributed to a number of publications regarding
psychiatry and the criminal justice system. 6
Dr. Ford prepared a fifteen-page expert report regarding the “mental
health issues and/or psychiatric diagnoses” that Goetzee may have suffered
from before or at the time of his death at OPP. In preparing her opinions,
Dr. Ford interviewed Goetzee’s family, friends, and co-workers and reviewed
Goetzee’s medical records and jail records.7 Dr. Ford divided her expert
report into four sections: Goetzee’s family, development, and employment
history; Goetzee’s clinical history; the circumstances surrounding Goetzee’s
August 2, 2011 suicide attempt; and Dr. Ford’s expert conclusions. 8

5

R. Doc. 234-2 at 17-18.

6

Id. at 19-20.

7

R. Doc. 234-2, Exhibit A (Dr. Ford’s Expert Report).

8

See generally id.

Defendant Dr. Higgins now moves to exclude Dr. Ford’s testimony and
expert report.9

According to Dr. Higgins, Dr. Ford reaches factual

conclusions that are unhelpful to the jury, presents evidence cumulative of
the facts presented in Geotzee’s medical records, and offers speculative
opinions not supported by reliable evidence.10 To support his arguments, Dr.
Higgins points to excerpts of the “Conclusion” section of Dr. Ford’s report
that he considers “problematic.” For example, Dr. Higgins challenges the
following sentences, among others, as factual conclusions that the jury can
determine on its own without any specialized expertise:
• Based on the available records . . . [Mr. Goetzee] did not suffer from a
mental illness until symptoms began to emerge in the spring of 2011 in
the context of significant and chronic sleep deprivation possibly
exacerbated by the motor vehicle accident . . . and brief treatment with
steroid medications. 11
• The most obvious and realistic trigger to [Mr. Goetzee’s] psychosis was
his consistent lack of sleep, initially the result of a chaotic work

9

R. Doc. 234.

10

See generally R. Doc. 234-1.

11

R. Doc. 234-2 at 12.

schedule . . . but then later also a function of anxiety and insomnia that
was most likely worsened by continuing sleep deprivation. 12
• Based on the available information, I am not able to make a definitive
DSM-V psychiatric diagnosis for Mr. Goetzee at the time of his death. 13
• The associated psychosis can be as severe as with schizophrenia,
however unlike many patients with schizophrenia, treatment of the
underlying medical condition (e.g., resolution of the sleep debt)
typically results in full resolution of the psychosis. 14
Dr. Higgins also challenges the following statements as cumulative of
Goetzee’s medical records, therefore rendering Dr. Ford’s expert opinion
unnecessary and inadmissible:
• While Mr. Goetzee likely minimized his symptoms to others, it does
appear that he was less agitated and psychotic for at least several weeks
following his discharge from the psychiatric hospitalization in June. 15

12

Id.

13

Id. at 13.

14

Id.

15

Id.

• The history most fits the diagnosis of Psychotic Disorder Due to
Another Medical Condition, with delusions. In Mr. Goetzee’s case,
sleep deprivation would be the medical conditions involved. . . .
Additional factors may exacerbate the symptoms such as treatment
with steroids. 16
Finally, Dr. Higgins challenges Dr. Ford’s expert opinion as speculative
and unreliable because, in her expert report, Dr. Ford uses terms such as “if,”
“likely,” “unlikely,” and “might.” Some of the “problematic” statements
include:
• If Mr. Goetzee’s psychosis was a result of a chronic mental illness, it is
highly unlikely that such a short hospitalization and such a short time
on medication would have significantly improved his symptoms. 17
• Also included on the diagnostic differential is Brief Psychotic Disorder
with marked stressors, however [sic] the diagnostic requirement that
the episode duration be no longer than one month cannot be firmly
established in this case.18

16

Id.

Id. (emphasis added). Here, the Court emphasizes the terms that Dr.
Higgins challenges as speculative and therefore unreliable.
17

18

Id. at 13-14.

• While Mr. Goetzee was significantly impaired at the time of his arrest
on 08/02/11 – agitated, suicidal, violent, delusional to the point where
he believed that his death was the only way to relieve his and others’
suffering – there were several missed opportunities for psychiatric
interventions following his arrest that would have had a meaningful
effect on his symptoms and would have most likely prevented his
suicide.19
• [Mr. Goetzee] could have continued his relationship with his fiancée
and family, and if retained in custody, worked closely with an attorney
to mount a defense. Given his psychosis and suicidal thinking related
to the circumstances of his arrest, there is reason to think that his
charges might have been reduced.20
According to Dr. Higgins, because Dr. Ford’s expert opinion is
peppered with the foregoing issues, her expert testimony should be entirely
excluded.

The Court now analyzes whether Dr. Ford’s opinions are

admissible.

19

Id. at 14.

20

Id.

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
testimony under Rule 702. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 13839 (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 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 crossexamination, 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
The Court begins by noting that Dr. Higgins does not challenge Dr.
Ford’s expert opinion in the classic sense that would require the Court to
distinguish between speculative or unreliable scientific methodology and
legitimate expertise. Dr. Higgins does not argue that Dr. Ford is unqualified
or that her opinions rest on unsound methodology. Indeed, Dr. Ford’s
education and experience in psychiatry and forensic psychiatry, especially
her experience in corrections facilities, qualify her to offer expert testimony
in this case. But Dr. Higgins argues that portions of Dr. Ford’s opinions are
instead factual conclusions that do not require specialized expertise; Dr.
Ford’s opinions are cumulative of Goetzee’s medical records; and Dr. Ford’s
opinions are speculative because she uses terms such as “if,” “likely,” and
“might.”

A.

Dr. Ford’s Testimony Is Properly Grounded in Her
Specialized Expertise And Is Not Cumulative of
Goetzee’s Medical Records

The Court has reviewed Dr. Ford’s expert report and deposition
testimony and finds Dr. Higgins’s arguments for exclusion meritless. First,
Dr. Ford’s opinion does not merely reflect factual conclusions unrelated to
any medical or specialized expertise. Drawing on her psychiatric expertise
and experience in correctional facilities, Dr. Ford has opined on, among
other things, the likely cause or causes of Goetzee’s psychiatric state, the
severity of Goetzee’s symptoms, and whether Goetzee could have been
rehabilitated to normal functioning. None of these opinions falls within the
general understanding of the average juror. See, e.g., United States v. Ebron,
683 F.3d 105, 136-37 (5th Cir. 2012) (“[T]he distinction between lay and
expert witness testimony is that lay testimony results from a process of
reasoning familiar in everyday life, while expert testimony results from a
process of reasoning which can be mastered only by specialists in the field.”).
Many of the statements that Dr. Higgins challenges as “factual” depend
on Dr. Ford’s expertise. 21 See, e.g., United States v. Dixon, 185 F.3d 393, 399

“[Mr. Goetzee] did not suffer from a mental illness until symptoms
began to emerge in the spring of 2011 in the context of significant and
chronic sleep deprivation . . . .” Id. at 12. “The most obvious and realistic
triffer to [Mr. Goetzee’s] psychosis was his consistent lack of sleep . . . but
also a function of anxiety and insomnia that was most likely worsened by
21

(5th Cir. 1999) (“An expert psychiatrist can assist a jury by giving an opinion
in his area of expertise: whether a patient is suffering from a particular
mental disease.”). Because a jury could not evaluate this evidence using only
their common knowledge and experience, Dr. Ford’s testimony is sufficiently
likely to assist the jury in understanding the scientific evidence relevant to
Goetzee’s suicide to be admissible. For the same reasons, the Court finds
that Dr. Ford’s testimony is not cumulative of Goetzee’s medical records. The
average juror does not have the specialized knowledge or experience
necessary to understand or interpret a patient’s medical records. See, e.g.,
Greeno v. Daily, 414 F.3d 645, 658 (7th Cir. 2005) (noting that
understanding medical records and patient treatment likely requires expert
testimony); Fowler v. Carrollton Pub. Library, 799 F.2d 976, 982 (5th Cir.
1986) (holding that a district court erred in admitting medical records “with
no accompanying expert explanation of their significance”). Her opinion is
therefore admissible. See Fed. R. Evid. 702.

continuing sleep deprivation.” Id. “The associated psychosis can be as
severe as with schizophrenia, however, unlike many patients with
schizophrenia, treatment of the underlying medical condition (e.g.,
resolution of the sleep debt) typically results in full resolution of the
psychosis.” Id. at 13.

To the extent that Dr. Ford makes any factual statements in her report
as she explains her expert opinion, this is not impermissible.

Expert

testimony must be based on sufficient facts or data to be reliable under the
Federal Rules of Evidence and Daubert. See Fed. R. Evid. 702, 703; Moore
v. Int’l Paint, LLC, 547 F. App’x 513, 515 (5th Cir. 2013). So long as those
facts are the type that other experts in the field would reasonably rely on, the
expert’s opinion based on those facts is admissible. See Factory Mut. Ins.
Co. v. Alon USA LP, 705 F.3d 518, 523 (5th Cir. 2013) (citing Fed. R. Evid.
703). And an expert may offer her opinion as to facts that, if found, would
help the jury resolve a particular issue. See Burkhardt v. Wash. Metro. Area
Transit Auth., 112 F.3d 1207, 1212-13 (D.C. Cir. 1997). Dr. Ford has not
included facts in the opinion section of her expert report to urge that those
facts are necessarily true or correct. Rather, Dr. Ford references the relevant
facts which underlie her psychiatric assessment of Goetzee’s mental
condition at the time of his suicide. Indeed, just as Dr. Higgins’s own expert
delineates in his report the facts upon which his opinions depend,22 Dr. Ford
does so here as well. This argument is without merit.

See generally R. Doc. 246-3 (Expert Report of James F. Hooper,
M.D., DLFAPA).
22

B.

Dr. Ford’s Testimony Is Not Speculative or Unreliable

Dr. Higgins also argues that Dr. Ford’s expert opinions are speculative
and therefore unreliable. To support this argument, Dr. Higgins points to
certain statements in which Dr. Ford does not opine that a particular fact or
circumstance is absolutely true. Instead, Dr. Ford opines, among other
things, that it is “highly unlikely” that Goetzee suffered from a chronic mental
illness; that Goetzee “most likely” suffered from Brief Psychotic Disorder, but
that a necessary symptom “cannot be firmly established in this case”; and
that some post-arrest psychiatric intervention “would have” meaningfully
improved Goetzee’s systems and “most likely” prevented his suicide.
As a general rule, expert testimony “must be grounded in the methods
and procedures of science and must be more than unsupported speculation
or subjective belief.” Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 668 (5th
Cir. 1999). However, “absolute certainty is not the goal of expert testimony.”
See Tang v. Thomas Trucking, LLC, No. 6:13-cv-407, 2014 WL 6847652, at
*2 (E.D. Tex. Dec. 2, 2014) (citing Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 589 (1993)). “It would be unreasonable to conclude that the
subject of scientific testimony must be ‘known’ to a certainty; arguably, there
are no certainties in science.” Daubert, 509 U.S. at 590. This is especially
true “when experts attempt to deduce explanations for earlier events based

on their later observations,” as Dr. Ford does here. See Kirkland v. Marriott
Int’l Inc., 416 F. Supp. 2d 480, 485 (E.D. La. 2006) (citing Jones v. Otis
Elevator, 861 F.2d 655, 662 (11th Cir. 1988); Kahn v. United States, 795 F.
Supp. 473, 475 (D.D.C. 1992)).
Dr. Ford has drawn on her psychiatric expertise and experience to
arrive at her conclusions about Goetzee’s mental diagnosis before his suicide.
Based on the evidence she reviewed, Dr. Ford ruled out certain ailments to
determine that “psychotic disorder due to another medical condition, with
delusions” and “brief psychotic disorder with marked stressors” were the
most likely causes of Goetzee’s mental distress. Having reached an opinion
on the most likely causes of Goetzee’s psychosis, Dr. Ford was then opined
on whether his condition was treatable or permanently debilitating. Dr.
Ford’s opinion that it is “highly unlikely” that Goetzee suffered from a
chronic mental illness, that Goetzee’s symptoms “would almost certainly
have” improved, and that psychiatric intervention “would have most likely”
prevented his suicide reflect the requisite degree of medical certainty and
reliability to make her testimony admissible. Dr. Ford’s failure to use certain
“magic words,” such as “within a reasonable degree of medical certainty,” is
not fatal to her opinions. Estate of Sanders v. United States, 736 F.3d 430,

437 (5th Cir. 2013).

Because “the import of the expert’s testimony is

apparent . . . that is enough.” Id.
C.

Dr. Ford May Not Opine On the Merits of Goetzee’s
Criminal Prosecution

Dr. Ford includes in her expert report a brief discussion of Goetzee’s
criminal charges stemming from his conflict with the federal officer during
his suicide attempt on August 2, 2011. Dr. Ford writes, “if retained in
custody, [Goetzee could have] worked closely with an attorney to mount a
defense.

Given his psychosis and suicidal thinking related to the

circumstances of his arrest, there is reason to think that his charges might
have been reduced.” 23 At her deposition, Dr. Ford conceded that she cannot
testify about the potential outcome of Goetzee’s criminal prosecution. 24 Dr.
Ford has no basis for predicting how the criminal charges against Goetzee
would have been resolved. This testimony is beyond the scope of Dr. Ford’s
psychiatric expertise and therefore inadmissible.

23

R. Doc. 234-2 at 14.

24

R. Doc. 281-9 at 116.

IV.

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

IN PART defendant’s motion to exclude Dr. Elizabeth Ford.

12th
New Orleans, Louisiana, this ___ day of February, 2016.

____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE