Rodgers, et al v. Gusman, et al

Filing 249

ORDER AND REASONS: IT IS HEREBY ORDERED that CCS' 180 Motion to Exclude or Limit the Testimony of William Anderson is DENIED, as set forth in document. IT IS FURTHER ORDERED that the parties are granted until 8/2/2019 to complete the supplemental deposition of Dr. Anderson. Signed by Chief Judge Nannette Jolivette Brown on 7/17/2019. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATASHA RODGERS

CIVIL ACTION

VERSUS

CASE NO. 16-16303

MARLIN GUSMAN, et al.

SECTION: “G” (3)

ORDER AND REASONS
In this litigation, Plaintiff Latasha Rodgers, Tutrix (“Plaintiff”), on behalf of her minor
child CJTJ, alleges that Defendants Orleans Parish Prison, Orleans Parish Sheriff Marlin Gusman
(“Gusman”), the City of New Orleans (the “City”), Mayor Mitch Landrieu, the New Orleans City
Council, Correct Care Solutions, LLC (“CCS”) and certain unidentified parties acting under the
authority of the Orleans Parish Prison, subjected CJTJ’s father (“Decedent”), a pretrial detainee at
the Orleans Parish Prison, to excessive force, assaulted and battered Decedent, and acted with
deliberate indifference to his medical needs, resulting in Decedent’s death, in violation of his and
Plaintiff’s constitutional rights under the Fourth, Eighth, and Fourteenth Amendments, and
Louisiana law.1 Pending before the Court is CCS’s Motion to Exclude or Limit the Testimony of
William Anderson.2 Having considered the motion, the memoranda in support and opposition, the
record, and the applicable law, the Court will deny the motion and allow the parties until August
2, 2019 to complete any outstanding depositions of Dr. William Anderson.

1

Rec. Doc. 143 at 1–4.

2

Rec. Doc. 180.

1

I. Background
A.

Factual Background
In the second amended complaint, Plaintiff avers that on September 24, 2015, Decedent

was a pretrial detainee at the Orleans Parish Prison (“OPP”).3 Plaintiff additionally avers that
Decedent had been diagnosed with Sickle Cell Disease and Hepatitis C, which was “verified by
OPP medical intake form.”4 Plaintiff alleges that since October 2015, Decedent had experienced
leg pain and medical complications in the chest and abdomen.5 According to Plaintiff, however,
OPP failed to provide Decedent with his medication or take him to the hospital.6 In addition,
Plaintiff alleges that on October 3, 2015, Decedent was attacked and stabbed in the arm by an
inmate, and on another unidentified occasion, Decedent was choked by a security guard.7 Plaintiff
avers that Decedent was not taken to the hospital on either occasion.8
According to Plaintiff, Decedent experienced a severe sickle cell pain crisis in his abdomen
and lower extremity, chest, back, and left leg on November 11, 2015, but was not taken to the
hospital until the next day on November 12, 2015.9 While Decedent was at University Medical
Center, Plaintiff avers, his condition worsened—he became diaphoretic and unresponsive, had

3

Rec. Doc. 143 at 4.

4

Id.

5

Id.

6

Id.

7

Id.

8

Id.

9

Id.

2

problems breathing, and on November 15, 2015, he died.10 Plaintiff alleges that Defendants’
conduct demonstrates a “wanton disregard” for Decedent’s “serious medical needs.”11
B.

Procedural Background
Plaintiff filed a complaint on November 10, 2016.12 On December 12, 2016, Defendant

Marlin Gusman filed an answer to the complaint.13 On February 6, 2017, the Court granted
Defendant Orleans Parish Sheriff Office’s motion to dismiss.14 On March 27, 2017, Defendants
Mayor Mitch Landrieu and the New Orleans City Council filed a motion to dismiss.15 On October
16, 2017, the Court denied the motion to dismiss without prejudice and granted Plaintiff leave to
amend the complaint to address the deficiencies noted therein.16
On November 17, 2017, Plaintiff filed an amended complaint.17 On July 18, 2018, the
Court denied CCS’s motion to dismiss without prejudice and granted Plaintiff leave to amend the
complaint to address the deficiencies noted therein.18 On July 18, 2018, the Court also denied
Gusman’s motion for judgment on the pleadings without prejudice and granted Plaintiff leave to
amend the complaint to address the deficiencies noted therein.19 Also on July 18, 2018, the Court

10

Id.

11

Id.

12

Rec. Doc. 1.

13

Rec. Doc. 4.

14

Rec. Doc. 5.

15

Rec. Doc. 12.

16

Rec. Doc. 31.

17

Rec. Doc. 45.

18

Rec. Doc. 110.

19

Rec. Doc. 111.

3

dismissed both CCS and Gusman’s motions for summary judgment without prejudice, with leave
to refile if necessary.20
On December 26, 2018, Plaintiff filed a second amended complaint.21 In the second
amended complaint, Plaintiff brings the following claims: (1) a wrongful death claim under 42
U.S.C. § 1983; (2) a survival claim under 42 U.S.C. § 1983; (3) a claim for deliberate indifference
under 42 U.S.C. § 1983; (4) a negligence claim under Louisiana law; and (5) an assault and battery
claim under Louisiana law.22
On January 9, 2019, CCS filed a motion to dismiss the second amended complaint.23 On
April 29, 2019, the Court granted the motion in part and dismissed the Section 1983 claims pending
against CCS.24 The Court denied the motion to the extent it sought dismissal of Plaintiff’s
negligence claims pending against CCS.25
On May 7, 2019, Gusman filed a second motion for judgment on the pleadings.26 On June
17, 2019, the Court denied the motion and granted Plaintiff leave to file an amended complaint to
include allegations regarding alleged aggravated assault and battery, which were raised in

20

Rec. Doc. 112.

21

Rec. Doc. 143.

22

Id. at 11–16.

23

Rec. Doc. 146.

24

Rec. Doc. 163 at 23.

25

Id.

26

Rec. Doc. 165.

4

opposition to the motion for judgment on the pleadings but not in the pleadings, and would not be
barred by the statute of limitations.27 On June 24, 2019, Plaintiff filed a third amended complaint.28
On June 3, 2019, CCS filed the instant Motion to Exclude or Limit the Testimony of
William Anderson.29 On June 7, 2019, Plaintiff filed a motion for extension of time to file an
opposition to the motion to exclude.30 On June 11, 2019, Plaintiff filed an opposition to the motion
to exclude.31 Also on June 11, 2019, the Court granted Plaintiff’s motion for extension of time in
part, giving Plaintiff until June 19, 2019 to file an opposition to the motion to exclude.32 In
accordance with the Court’s June 11, 2019 Order, Plaintiff filed a supplemental brief in opposition
to the motion to exclude on June 19, 2019.33 On June 26, 2019, with leave of Court, CCS filed a
reply brief in further support of the motion.34
II. Parties’ Arguments
A.

CCS’s Arguments in Support of Motion to Exclude
In the instant motion, CCS seeks to exclude or limit the testimony of Plaintiff’s expert, Dr.

William Anderson, because: (1) Dr. Anderson is a pathologist and lacks the necessary
qualifications to offer the opinions on the standard of care referenced in his expert report; (2) Dr.
Anderson failed to use or rely on sound scientific principles; (3) Plaintiff’s Rule 26 Disclosure

27

Rec. Doc. 201.

28

Rec. Doc. 210.

29

Rec. Doc. 180.

30

Rec. Doc. 194.

31

Rec. Doc. 196.

32

Rec. Doc. 199.

33

Rec. Doc. 203.

34

Rec. Doc. 214.

5

fails to meet the requirements for an adequate expert disclosure; and (4) Plaintiff failed to produce
Dr. Anderson for a follow-up deposition as requested.35
First, CCS argues that Dr. Anderson lacks the requisite qualifications to offer an opinion
regarding the medical care provided to Decedent or any alleged delay in care. 36 In support, CCS
cites a Louisiana First Circuit Court of Appeal case affirming the exclusion of medical expert
testimony because there was no evidence that the doctor was familiar with the degree of care
exercised by general physicians in communities similar to where the inmate was housed. 37 CCS
also cites a United States Fifth Circuit Court of Appeals case affirming the exclusion of medical
expert testimony by a family practitioner who had no experience in spinal cord injuries, which
were at issue in that case.38 CCS asserts that Dr. Anderson lacks the experience as a treating
physician or experience in correctional institutions that would allow him to offer any opinion on
the standard of care applicable to CCS.39 CCS argues that any comments regarding treatment
interventions, timing of such interventions, patient management, or handling are outside the scope
of Dr. Anderson’s expertise as a pathologist.40 CCS asserts that Dr. Anderson’s “opinion of an
unspecified ‘delay’ is little more than speculative lay opinion in light of his wholesale lack of
expertise in patient care.”41 Because CCS asserts that Dr. Anderson’s “testimony, background, and

35

Rec. Doc. 180 at 1; Rec. Doc. 180-1 at 1, 5.

36

Rec. Doc. 180-1 at 5.

37

Id. at 6 (citing Berthelot v. Stadler, 2012-1758 (La. App. 1 Cir. 7/29/13); 2013 WL 3947106).

38

Id. (citing Honey-Love v. United States, 664 F. App’x 358 (5th Cir. 2016)).

39

Id. at 6–7.

40

Id. at 7.

41

Id. at 8.

6

experience readily demonstrate that he lacks the qualifications to offer any opinion on the standard
of care,” CCS asserts that any attempt to offer this opinion at trial should be excluded.42
Second, CCS contends that Dr. Anderson’s failure to use scientifically valid principles
renders his opinion unreliable under Rule 702.43 CCS asserts that Dr. Anderson offers the
conclusory opinion that a delay in treatment exacerbated Decedent’s sickle cell condition. 44 CCS
argues that Dr. Anderson does not differentiate between a severe sickle cell crisis resulting from
delay in treatment as opposed to the normal development of sickle cell in the later stages.45 CCS
asserts that Dr. Anderson’s opinion “is not based on the clinical presentation of the patient, the
history of treatment for this patient, or a provider’s evaluation of the patient’s condition of his then
presenting symptoms.”46 Moreover, CCS contends that Dr. Anderson does not identify any
scientific basis, experience, background, or evidence to support his conclusory opinion that a delay
occurred.47 Therefore, because Dr. Anderson does not reference any medical literature, scientific
studies, or professionally-recognized standards in support of his opinion, CCS argues that the
expert’s reports and his proposed testimony are unreliable and must be stricken in their entirety.48
Third, CCS asserts that the Rule 26 disclosure fails to properly disclose Dr. Anderson’s
opinion49 CCS argues that Dr. Anderson’s three-page report “makes the blanket, conclusory

42

Id. at 9.

43

Id.

44

Id. at 10.

45

Id.

46

Id.

47

Id. at 11.

48

Id. at 12.

49

Id.

7

statement that the defendants failed to meet the prevailing standard of care.”50 CCS contends that
Rule 26 reports may not merely set forth an “ultimate opinion without providing a line of reasoning
arising from a logical foundation.”51 Moreover, CCS argues that Plaintiff submitted the March 20,
2018 report without disclosing that Dr. Anderson lacked critical information and data impacting
his opinion or that Dr. Anderson could not offer a conclusive opinion.52 CCS asserts that the
December 16, 2018 report offers no additional opinion, instead noting that the original opinion
was not changed following review of the supplemental information received from the autopsy. 53
Therefore, CCS argues that the reports should be stricken.54
Finally, CCS asserts that Dr. Anderson’s prior deposition was continued because he failed
to disclose that his opinions were incomplete.55 CCS contends that it has attempted to reschedule
the deposition on numerous occasions, but Plaintiff’s counsel has not responded to the request.56
Therefore, CCS argues that Dr. Anderson’s testimony should be excluded on this basis alone.57
B.

Plaintiff’s Arguments in Opposition to CCS’s Motion to Exclude
In response to CCS’s motion, Plaintiff contends that CCS’s argument that Dr. Anderson is

unqualified because he is a pathologist is unfounded, because Dr. Anderson is familiar with sickle

50

Id. at 13.

51

Id. at 13–14 (quoting Brainard v. Am. Skandia Life Assur., Cor. 432 F.3d 55, 664 (6th Cir. 2005)).

52

Id. at 14.

53

Id.

54

Id.

55

Id. at 15.

56

Id.

57

Id.

8

cell disease and how it should be treated.58 Plaintiff asserts that Dr. Anderson is not rendering an
opinion on what a medical provider did or the manner it was performed, but is providing an opinion
that a delay in transferring Decedent to the hospital would not be consistent with prevailing
standards of practice in the medical community.59 Additionally, Plaintiff contends there is no
support for CCS’s argument that Dr. Anderson is unqualified because he has not worked in a jail.60
Plaintiff argues that differences in expertise bear chiefly on the weight to be assigned to the
testimony by the trier of fact, not its admissibility.61 To the extent that CCS argues that Dr.
Anderson’s testimony is conclusory and without evidentiary foundation, Plaintiff asserts that CCS
has cited no cases reflecting similar testimony that was excluded under Daubert.62 Plaintiff
contends that CCS’s criticisms of Dr. Anderson’s testimony go to the weight of the testimony, not
its admissibility, and CCS can raise these issues on cross-examination.63
Next, Plaintiff asserts that the Rule 26 disclosure is not defective because “[t]he purpose
of expert reports is not to replicate every word that the expert might say on the stand [but] instead
to convey the substance of the expert’s opinion so that the opponent will be ready to rebut, crossexamine and offer a competing expert if necessary.”64 Finally, Plaintiff notes that CCS concedes
that it has already deposed Dr. Anderson once, and “it is difficult to imagine how CCS has been

58

Rec. Doc. 196-1 at 4.

59

Id. at 5.

60

Id.

61

Id. (citing Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009)).

62

Id. at 6.

63

Id.

64

Id. (citing Metavante Corp v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010)).

9

harmed as it has had one opportunity, and will possibly have another, to question the witness about
his opinions.”65 Accordingly, Plaintiff asserts that the motion to exclude should be denied.66
C.

Plaintiff’s Supplemental Arguments in Opposition to the Motion to Exclude
In the supplemental brief, Plaintiff provides a supplemental declaration of Dr. Anderson

explaining the nature of pathology and his qualifications to render an opinion in this case.67
Plaintiff asserts that the declaration explains that Dr. Anderson “is not criticizing a particular
medical provider, and none is referenced in his report, because he is not opining that a single
individual doctor violated medical standards; he is saying that the delay by all medical personnel
at CCS in taking the decedent to a hospital setting caused the problem, sickle cell, to become worse
to the point it could not be reversed.”68 Plaintiff contends that this type of opinion can only be
rendered by a pathologist, and CCS has not shown that Dr. Anderson is not qualified as a
pathologist.69 Additionally, Plaintiff argues that the supplemental declaration should resolve any
complaint as to the adequacy of the Rule 26 disclosure because it sets forth in detail Dr. Anderson’s
opinion and its basis.70 Accordingly, Plaintiff asserts that the motion to exclude should be denied.71

65

Id. at 7–8.

66

Id. at 8.

67

Rec. Doc. 203-1 at 5.

68

Id. at 7.

69

Id.

70

Id. at 9.

71

Id.

10

D.

CCS’s Arguments in Further Support of the Motion to Exclude
In reply, CCS asserts that Plaintiff has failed to offer any legitimate basis to support her

contention that Dr. Anderson meets the basic requirements of Rule 702 such that he should be
allowed to testify at trial.72 CCS argues that Dr. Anderson is not qualified to provide expert
testimony on the standard of care, and he formed his opinions without any factual basis or scientific
methodology.73 Furthermore, CCS contends that Dr. Anderson’s declaration is untimely and
“serves to emphasize his shortcomings as an expert in this case, not cure them.”74
CCS first argues that Dr. Anderson admitted that he is not qualified to testify to the standard
of care applicable to CCS in this case.75 CCS asserts that Dr. Anderson’s opinion that there was a
delay in treatment would necessarily have to be based on the appropriate care, treatment, and
management of sickle cell disease, issues on which he lacks any qualification.76 Therefore, CCS
asserts that this opinion must be excluded.77
Next, CCS argues that Plaintiff offered nothing to dispute the conclusion that Dr. Anderson
lacks the relevant qualifications or experience in providing care and treatment to sickle cell
patients.78 CCS contends that Dr. Anderson’s description of the role of pathologists in evaluating
autopsies and tissue samples is inconsequential to the standard of care applicable to a medical

72

Rec. Doc. 214 at 1.

73

Id.

74

Id.

75

Id. at 2.

76

Id.

77

Id.

78

Id. at 3.

11

provider in the evaluation, treatment, and clinical decision making for a patient.79 Additionally,
CCS asserts that Dr. Anderson ignores the fact that Decedent had continuing medical intervention,
was on medication for his condition, and was transferred upon making complaints consistent with
a sickle cell crisis.80 CCS contends that Dr. Anderson opines that there was a delay without offering
more information on when Decedent should have been transferred, what clinical indicators would
support a transfer, and the timing of the transfer.81 CCS argues that this is the very type of vague,
conclusory opinions that the Fifth Circuit discourages.82
Finally, CCS contends that Plaintiff has failed to show how Dr. Anderson’s reports
incorporates any reliable scientific methods under Federal Rule of Evidence 702 or discloses
proper expert opinions under Federal Rule of Civil Procedure 26.83 CCS argues that Dr. Anderson
cites Decedent’s complaints of pain to support the proposition that the delay caused Decedent’s
medical crises to become “irreversible,” but Dr. Anderson does not rely on forensic pathology
principles or other medical expertise to establish how a complaint of pain alone evidences an
ultimately-fatal sickle cell crisis.84 Furthermore, CCS asserts that Dr. Anderson’s June 19, 2019
declaration should not be considered because it sets forth new opinions, and was disclosed after
the deadline for disclosure of expert reports set forth in the Court’s Scheduling Order.85
Additionally, even if the declaration is considered, CCS contends that it fails to cure the defects in

79

Id.

80

Id.

81

Id.

82

Id. at 4.

83

Id.

84

Id. at 6.

85

Id. at 7.

12

the expert disclosure because Dr. Anderson offers no reliable methodology or support for his
opinions.86 For these reasons, CCS asserts that the Court should exclude Dr. Anderson’s proposed
testimony.87
III. Legal Standard
The district court has considerable discretion to admit or exclude expert testimony under
Federal Rule of Evidence 702.88 Rule 702, which governs the admissibility of expert witness
testimony, provides that an expert witness “qualified . . . by knowledge, skill, experience, training
or education,” may testify when “scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue.”89 For the testimony to
be admissible, Rule 702 establishes the following requirements:
(1) the testimony [must be] based upon sufficient facts or data,
(2) the testimony [must be] the product of reliable principles and methods, and
(3) the witness [must apply] the principles and methods reliably to the facts of the case. 90
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.”91 The district court’s gatekeeping function
thus involves a two-part inquiry into reliability and relevance. First, the district court must

86

Id. at 7–8.

87

Id. at 8.

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).
88

89

Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

90

Fed. R. Evid. 702.

91

Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (clarifying that
the court’s gatekeeping function applies to all forms of expert testimony).

13

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.92 The reliability
inquiry requires a court to assess whether the reasoning or methodology underlying the expert’s
testimony is valid.93 The aim is to exclude expert testimony based merely on subjective belief or
unsupported speculation.94
In Daubert, the Court identified a number of factors that are useful in analyzing reliability
of an expert’s testimony: (1) whether the theory has been tested; (2) whether the theory has been
subject to peer review and publication; (3) any evaluation of known rates of error; (4) whether
standards and controls exist and have been maintained with respect to the technique; and (5)
general acceptance within the scientific community.95 In Kumho Tire Co. v. Carmichael, the
Supreme Court emphasized that the test of reliability is “flexible” and that Daubert’s list of specific
factors does not necessarily nor exclusively apply to every expert in every case.96 The overarching
goal “is to make certain that an expert, whether basing testimony on professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.”97 The court must also determine
whether the expert’s reasoning or methodology “fits” the facts of the case and whether it will

92

See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (citing In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717 (3d Cir. 1994)).
93

See Daubert, 509 U.S. at 591.

94

See id. at 590.

95

See id. at 592–94.

96

Kumho Tire, 526 U.S. at 142; see also Seatrax, 200 F.3d at 372 (explaining that reliability is a fact-specific
inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's particular expertise
and the subject of the testimony”).
97

Kumho Tire, 526 U.S. at 152.

14

thereby assist the trier of fact to understand the evidence—in other words, whether it is relevant.98
Here, the parties do not dispute the relevance of the testimony.
A court’s role as a gatekeeper does not replace the traditional adversary system,99 and “[a]
review of the caselaw after Daubert shows that the rejection of expert testimony is the exception
rather than the rule.”100 As the Supreme Court noted in Daubert, “[v]igorous 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.”101 “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.”102
IV. Analysis
As an initial matter, CCS asserts that Dr. Anderson’s June 19, 2019 declaration should not
be considered by the Court in deciding the instant motion because it sets forth new opinions and
was disclosed after the deadline for disclosure of expert reports set forth in the Court’s Scheduling
Order.103 Plaintiff disclosed Dr. Anderson’s original expert report on March 20, 2018, and a
supplemental report, following review of three microscopic slides from Decedent’s autopsy on
December 16, 2018. In the original report, Dr. Anderson opined that “delayed therapy was the
principal factor in the death of [Decedent]” and “[t]his type of delay in addressing the acute

98

See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.

99

See Daubert, 509 U.S. at 596.

100

Fed. R. Evid. 702 advisory committee’s note, “2000 Amendments.”

101

Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

102
United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty., State of Miss., 80 F.3d 1074,
1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)).
103

Id. at 7.

15

medical issues would not be consistent with prevailing standards of practice in the medical
community.”104 CCS asserts that Dr. Anderson offers “new” opinions in the declaration. However,
the declaration only clarifies the opinions set forth in the expert report stating that the report
“indicates that the condition of the patient, based upon the forensic pathological evidence, had
progressed, in the absence of medical intervention, to the point that [Decedent] was likely not
salvageable at the point he was eventually admitted to the hospital and proper care was
provided.”105 Therefore, the Court will consider the June 19, 2019 declaration in deciding the
instant motion because it merely clarifies and expands on the opinions set forth in the expert report.
CCS seeks to exclude or limit the testimony of Plaintiff’s expert, Dr. William Anderson,
because: (1) Dr. Anderson is a pathologist and lacks the necessary qualifications to offer the
opinions on the standard of care referenced in his expert report; (2) Dr. Anderson failed to use or
rely on sound scientific principles; (3) Plaintiff’s Rule 26 Disclosure fails to meet the requirements
for an adequate expert disclosure; and (4) Plaintiff failed to produce Dr. Anderson for a follow-up
deposition as requested.106 The Court will address each argument in turn.
A.

Qualifications
CCS attacks Dr. Anderson’s qualifications to testify regarding the standard of care

applicable to CCS or any alleged delay in care because Dr. Anderson has, in his own deposition
testimony, clearly admitted that he lacks the requisite expertise.107 CCS argues that any comments
regarding treatment interventions, timing of such interventions, patient management, or handling

104

Rec. Doc. 203-3 at 3.

105

Rec. Doc. 203-2 at 2.

106

Rec. Doc. 180 at 1; Rec. Doc. 180-1 at 1, 5.

107

Rec. Doc. 180-1 at 5.

16

should be excluded because they are outside the scope of Dr. Anderson’s expertise as a
pathologist.108 In opposition, Plaintiff cites the June 19, 2019 declaration of Dr. Anderson
explaining the nature of pathology and his qualifications to render an opinion in this case. 109
Plaintiff asserts that the declaration explains that Dr. Anderson “is not opining that a single
individual doctor violated medical standards; he is saying that the delay by all medical personnel
at CCS in taking the decedent to a hospital setting caused the problem, sickle cell, to become worse
to the point it could not be reversed.”110 Plaintiff contends that this type of opinion can only be
rendered by a pathologist, and CCS has not shown that Dr. Anderson is not qualified as a
pathologist.111 In reply, CCS asserts that Dr. Anderson’s description of the role of pathologists in
evaluating autopsies and tissue samples is inconsequential to the standard of care applicable to a
medical provider in the evaluation, treatment, and clinical decision making for a patient.112
It is undisputed that Dr. Anderson has extensive experience as a pathologist. Indeed, Dr.
Anderson’s curriculum vitae indicates that he has over 40 years of experience as a board-certified
pathologist, has performed over 7,000 autopsy and clinical patient examinations in medicolegal
cases, and has been involved in testimony in over 300 cases in both the criminal and civil justice
system.113 Dr. Anderson’s expert report states that he reviewed the medical records of Decedent,
and reached the opinion that initial laboratory findings and the clinical history indicate that the

108

Id. at 7.

109

Rec. Doc. 203-1 at 5.

110

Id. at 7.

111

Id.

112

Rec. Doc. 214 at 3.

113

Rec. Doc. 203-3 at 19, 21.

17

exacerbation of Decedent’s underlying sickle cell hemoglobinopathy “had been progressing for a
period of time prior to his admission.”114 He opines that “delayed therapy was the principal factor
in the death of [Decedent].”115 Moreover, Dr. Anderson states that “[t]his type of delay in
addressing the acute medical issues would not be consistent with prevailing standards of practice
in the medical community.”116
CCS does not dispute that Dr. Anderson is qualified to testify to causation, but argues that
Dr. Anderson is not qualified to testify to the standard of care. During his deposition, Dr. Anderson
admitted that he does not provide any type of medical care to patients in a clinical setting. 117 Dr.
Anderson stated that he would not offer an opinion on the standard of care applicable to individual
medical care providers, but he will provide an opinion on “the cause of death and the sequence in
which these probably occurred.”118 Dr. Anderson further stated that his opinion is based “purely
on the time frame, and that’s basically from the data that we have and irrespective of who did what
at what time,” and he will not provide an opinion on what treatment should have been provided.119
Dr. Anderson explained that “there’s a standard of care which all physicians basically adhere to.
So I would feel that if something is particularly inadequate from any doctor in any situation, that
I would probably have an opinion.”120
Furthermore, in his declaration, Dr. Anderson states that tissue diagnosis is solely the

114

Rec. Doc. 203-3 at 1–2.

115

Id. at 3.

116

Id.

117

Rec. Doc. 203-5 at 4.

118

Id. at 4–5.

119

Id. at 5.

120

Id. at 6.

18

province of the pathologist, and consequently, when issues arise regarding the cause and manner
of death, a pathologist must make the ultimate determination, utilizing the information garnered
from both the tissues and the laboratory results.121 Dr. Anderson points out that his report
“references the mechanisms” by which the disease progressed, but does not reference any
individual medical provider.122 Instead, Dr. Anderson states that it is his opinion, based upon the
forensic pathological evidence, that in the absence of medical intervention Decedent’s condition
progressed to the point that Decedent was “likely not salvageable at the point he was eventually
admitted to the hospital and proper care was provided.”123 According to Dr. Anderson, a review of
the materials, including microscopic slides, tissue samples, and medical records, reflects that
Decedent “had been in a medical crisis long before he was taken to the hospital,” and the delay
“lasted so long that it caused the problem to worsen to the point that it could not be reversed.”124
In support of its assertion that Dr. Anderson is not qualified to testify to the standard of
care, CCS cites a Louisiana First Circuit Court of Appeal case affirming the exclusion of medical
expert testimony because there was no evidence that the doctor was familiar with the degree of
care exercised by general physicians in communities similar to where the inmate was housed. 125
Although state law governs the substance of Plaintiff’s negligence claim against CCS, “the Federal
Rules of Evidence control the admission of expert testimony.”126

121

Rec. Doc. 203-2 at 2–3.

122

Id. at 3.

123

Id. at 3–4.

124

Id. at 4.

125

Rec. Doc. 180-1 at 6 (citing Berthelot v. Stadler, 2012-1758 (La. App. 1 Cir. 7/29/13); 2013 WL 3947106).

126

Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (quoting Mathis v. Exxon Corp., 302 F.3d 448, 459
(5th Cir. 2002)).

19

CCS also cites Honey-Love v. United States, a United States Fifth Circuit Court of Appeals
case affirming the exclusion of medical expert testimony by a family practitioner who had no
experience in spinal cord injuries, which were at issue in that case. 127 However, Honey-Love is
readily distinguishable from this case. There, the expert alleged a breach of care by the VA Medical
Center and nurses, who were not parties in the case, and proffered no opinion on the standard of
care or any breaches pertaining to the doctors who were named as defendants in the case. 128 Here,
Dr. Anderson is providing a more general opinion that a delay in treatment contributed to
Decedent’s death.
As the Fifth Circuit noted in United States v. Wen Chyu Liu, “an expert witness is not
strictly confined to his area of practice, but may testify concerning related applications; a lack of
specialization does not affect the admissibility of the opinion, but only its weight.”129 In that case,
the Fifth Circuit held that the district court abused its discretion when it excluded the testimony of
an expert with extensive experience working in chemical plants and 50 years of engineering
experience in a variety of high-level positions, finding that he had worked with polymers that had
“many similarities” and “a lot of commonality” with the manufacturing process at issue in the case,
even though he lacked experience with the specific substance at issue.130
Similarly, in Huss v. Gayden, the Fifth Circuit held that a district court erred in excluding
the testimony of a board-certified internist that the drug administered by the defendants did not

127

Rec. Doc. 180-1 at 6 (citing Honey-Love v. United States, 664 F. App’x 358 (5th Cir. 2016)).

128

Id. at 360.

129
United States v. Wen Chyu Liu, 716 F.3d 159, 168–69 (5th Cir. 2013) (quoting Wheeler v. John Deere
Co., 935 F.2d 1090, 1100 (10th Cir. 1991)).
130

Id. at 169.

20

cause or contribute to the plaintiff’s cardiomyopathy.131 The Fifth Circuit noted that the internist
practiced for fifteen years, treated patients with enlarged hearts and cardiomyopathy, prescribed
drugs similar to the one prescribed by the defendants, and his anticipated testimony was a natural
extension of his medical and public health training.132 The Fifth Circuit reasoned that “Rule 702
does not mandate that an expert be highly qualified in order to testify about a given issue.
Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of
fact, not its admissibility.”133
Here, Dr. Anderson’s curriculum vitae indicates that he has over 40 years of experience as
a board-certified pathologist, has performed over 7,000 autopsy and clinical patient examinations
in medicolegal cases, and has been involved in testimony in over 300 cases in both the criminal
and civil justice system.134 Furthermore, Dr. Anderson’s curriculum vitae indicates that he has
published several papers on how forensic sciences can aid the clinician. 135 He also developed “a
comprehensive program in clinical forensic medicine . . . [u]tilizing the data gathered from nonsurviving trauma patients, in a prospective manner, through [] extensive educational and
consultative interactions with providers.”136 This “information is used by the clinician to better
appreciate the distribution of damages that might be expected in specific types of patient trauma
situations, and improve the effectiveness of various diagnostic and therapeutic approaches.”137

131

Huss v. Gayden, 571 F.3d 442, 455 (5th Cir. 2009).

132

Id. at 454.

133

Id. at 452.

134

Rec. Doc. 203-3 at 19, 21.

135

Id. at 25–27.

136

Id. at 22.

137

Id.

21

Thus, Dr. Anderson does have experience assisting medical providers in applying forensic data to
make improvements to care provided to patients in the clinical setting. Additionally, during his
deposition, Dr. Anderson testified that he reviews clinical records in conjunction with the
performance of most autopsies to determine what transpired.138
Dr. Anderson is qualified to opine regarding the cause of Decedent’s death and the standard
of care to which all physicians adhere. Moreover, Dr. Anderson has stated that he will not provide
specific opinions related to the clinical care of Decedent or what treatment should have been
provided. Instead, Dr. Anderson will provide an opinion as to the mechanisms by which the disease
progressed, including his opinion that there was a delay in treatment contributing to Decedent’s
death, which deviated from prevailing standards of practice in the medical community.139
Although CCS unfavorably compares Dr. Anderson’s qualifications with regard to clinical
care of a patient in a jail setting to that of Dr. Richard Inglese,140 an expert retained by the
defendants, such a comparison is irrelevant to the consideration of whether Dr. Anderson is
qualified to testify in this matter. “[T]he Daubert standards are flexible, and the most important
question is not whether one party's expert is more qualified than the other’s, but rather, whether an
expert's testimony is reliable.”141 If CCS believes Dr. Inglese is the more qualified expert, they are
free to argue so to the jury. Dr. Anderson may be less qualified regarding clinical care of a patient
in a jail setting, but he is not insufficiently qualified to opine as to the cause of Decedent’s death
or general standard of care principles applicable to all medical professionals. The Court therefore

138

Rec. Doc. 203-5 at 6.

139

Rec. Doc. 203-2 at 3.

140

Rec. Doc. 186-1.

141

Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009).

22

declines to exclude Dr. Anderson’s testimony on the ground that he is not qualified as an expert.
B.

Reliability
Next, CCS asserts that Dr. Anderson’s opinion that a delay in treatment exacerbated

Decedent’s sickle cell condition “is not based on the clinical presentation of the patient, the history
of treatment for this patient, or a provider’s evaluation of the patient’s condition of his then
presenting symptoms.”142 Moreover, because Dr. Anderson does not reference any medical
literature, scientific studies, or professionally-recognized standards in support of his opinion, CCS
argues that the expert reports and his proposed testimony are unreliable and must be stricken in
their entirety.143 In response, Plaintiff asserts that CCS has cited no cases reflecting similar
testimony that was excluded under Daubert, and that these arguments go to the weight to be
afforded to the testimony, not admissibility.144
As noted above, when expert testimony is challenged under Daubert, the burden of proof
rests with the party seeking to present the testimony.145 “To meet this burden, a party cannot simply
rely on its expert’s assurances that he has utilized generally accepted scientific methodology.”146
Rather, some objective, independent validation of the expert’s methodology is required.147
However, 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

142

Rec. Doc. 180-1 at 10.

143

Id. at 12.

144

Rec. Doc. 196-1 at 6.

145

Moore v. Ashland Chem., Inc., 151 F.3d 269 (5th Cir. 1998).

146
Dearman v. Transocean Offshore Deepwater Drilling, Inc., No. 11-750, 2012 WL 441167, at *5 (E.D.
La. Feb. 10, 2012) (Fallon, J.).
147

Moore, 151 F.3d at 269.

23

jury’s consideration.”148 It is “the role of the adversarial system, not the court, to highlight weak
evidence.”149
The test of reliability is “flexible” and Daubert’s list of specific factors does not necessarily
nor exclusively apply to every expert in every case.150 In Kovaly v. Wal-Mart Stores Texas, L.L.C.,
the Fifth Circuit acknowledged that, in considering the reliability of some professionals, such as
pharmacists, certain Daubert factors will not readily apply, and courts “must consider other factors
when determining admissibility, such as whether the expert has enough education and relevant
experience to reach a reliable opinion.”151 Therefore, the Fifth Circuit “has upheld the admission
of expert testimony where it was based on the expert’s specialized knowledge, training,
experience, and first-hand observation while supported by solid evidence in the scientific
community.”152
Here, the Court finds that Dr. Anderson has reliably drawn upon his specialized knowledge
and experience to arrive at his conclusions. Dr. Anderson considered numerous documents and
other sources of evidence in preparing his opinion. These items include records from the jail,
records from University Medical Center, the autopsy report, and microscopic slides representing
tissue samples from Decedent’s heart, lung, liver, spleen, and kidney.153 Furthermore, as noted

148

United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996).

149

Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 563 (5th Cir. 2004).

150

Kumho Tire, 526 U.S. at 142; see also Seatrax, 200 F.3d at 372 (explaining that reliability is a fact-specific
inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's particular expertise
and the subject of the testimony”).
151

627 F. App’x 288, 291 (5th Cir. 2015) (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir.

152

Pipitone, 288 F.3d at 247.

153

Rec. Doc. 203-3; Rec. Doc. 203-4.

2002)).

24

above, Dr. Anderson has over 40 years of experience as a board-certified pathologist, has
performed over 7,000 autopsy and clinical patient examinations in medicolegal cases, and has been
involved in testimony in over 300 cases in both the criminal and civil justice system. 154 Dr.
Anderson has published several papers on how forensic sciences can aid the clinician,155 and
developed a program that utilizes data gathered during autopsies to make improvements to care
provided in the clinical setting.156
Additionally, Dr. Anderson’s declaration explains that it is the role of the pathologist to
examine tissue and laboratory diagnostic procedures “to determine the changes that occur during
the progression of those processes.”157 Dr. Anderson states that he relied on his training as a
pathologist to make a determination regarding the cause and manner of death, “utilizing the
information garnered from both the tissues and the laboratory results.”158 Dr. Anderson relied on
this experience and methodology in forming his opinion. Therefore, this Court concludes that Dr.
Anderson’s opinions are reliable under Federal Rule of Evidence 702 and the Supreme Court’s
holding in Daubert.
C.

Compliance with Rule 26(a)(2)(B)
Next, CCS asserts that the Rule 26 disclosure fails to properly disclose Dr. Anderson’s

opinion.159 CCS argues that Dr. Anderson’s three-page report “makes the blanket, conclusory

154

Rec. Doc. 203-3 at 19, 21.

155

Id. at 25–27.

156

Id. at 22.

157

Rec. Doc. 203-2 at 2.

158

Id. at 2–3.

159

Rec. Doc. 180-1 at 12.

25

statement that the defendants failed to meet the prevailing standard of care,” without laying out
the reasons for the opinion.160 Moreover, CCS argues that Plaintiff submitted the March 20, 2018
report without disclosing that Dr. Anderson lacked critical information and data impacting his
opinion or that Dr. Anderson could not offer a conclusive opinion.161 CCS asserts that the
December 16, 2018 report offers no additional opinion, instead noting that the original opinion
was not changed following review of the supplemental information received from the autopsy.162
In response, Plaintiff asserts that the Rule 26 disclosure is not defective because “[t]he purpose of
expert reports is not to replicate every word that the expert might say on the stand [but] instead to
convey the substance of the expert’s opinion so that the opponent will be ready to rebut, crossexamine and offer a competing expert if necessary.”163
Federal Rule of Civil Procedure 26(a)(2)(B) states:
Unless otherwise stipulated or ordered by the court, [an expert] disclosure must be
accompanied by a written report--prepared and signed by the witness--if the witness
is one retained or specially employed to provide expert testimony in the case or one
whose duties as the party’s employee regularly involve giving expert testimony.
The report must contain:
(i) a complete statement of all opinions the witness will express and
the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications
authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and
testimony in the case.

160

Id. at 13–14.

161

Id. at 14.

162

Id.

163

Rec. Doc. 196-1 at 6 (citing Metavante Corp v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010)).

26

“The expert report should be ‘detailed and complete,’ stating the testimony that will be presented
during direct examination and the reasons therefor.”164
CCS argues that Dr. Anderson’s report fails to meet the requirements under subparts (i)
and (ii). The Court finds this argument unavailing. The report states that is based on the autopsy
report, the medical records from CCS, and the medical records from University Medical Center.165
Additionally, Dr. Anderson summarizes the portions of the medical records upon which he
specifically relied.166 As discussed above, Dr. Anderson will opine that there was a delay in
medical treatment, which contributed to Decedent’s death, and that this delay is not consistent with
prevailing standards of practice in the medical community. Accordingly, the Court finds that Dr.
Anderson’s report meets the requirements of Rule 26(a)(2)(B).
Equally unpersuasive is CCS’s argument that the report should be excluded because
Plaintiff did not disclose that Dr. Anderson lacked critical information and data impacting his
opinion or that Dr. Anderson could not offer a conclusive opinion when she disclosed the March
20, 2018 report. The March 20, 2018 report states that Dr. Anderson “reserve[s] the right to modify
these opinions in the event further data become[s] available.”167 The morning of Dr. Anderson’s
deposition he learned that microscopic slides from Decedent’s autopsy, which the parties were
previously told were destroyed, were in fact available.168 Dr. Anderson stated that he needed to

Honey-Love, 664 F. App’x at 361 (citing Fed. R. Civ. P. 26 Advisory Committee’s Notes (1993
Amendments).
164

165

Rec. Doc. 203-3 at 1.

166

Id. at 1–2.

167

Id. at 3.

168

Rec. Doc. 203-5 at 9–10.

27

look at the slides to confirm the opinions provided in his prior report.169 Dr. Anderson submitted
a supplemental report on December 16, 2018, after reviewing the slides, stating the slides further
supported the conclusions reached in his original report.170 Accordingly, the Court finds that this
is not a basis for exclusion of Dr. Anderson’s testimony.
D.

Production of Dr. Anderson for Another Deposition
Finally, CCS asserts that Dr. Anderson’s prior deposition was continued because he failed

to disclose that his opinions were incomplete.171 CCS contends that it has attempted to reschedule
the deposition on numerous occasions, but Plaintiff’s counsel has not responded to the request.172
In response, Plaintiff notes that CCS concedes that it has already deposed Dr. Anderson once, and
“it is difficult to imagine how CCS has been harmed as it has had one opportunity, and will possibly
have another, to question the witness about his opinions.”173 Plaintiff does not explain why a
supplemental deposition has not been scheduled. The Scheduling Order provides that depositions
must be completed no later than June 12, 2019.174 Nevertheless, the Court will grant the parties
until August 2, 2019 to complete the supplemental deposition of Dr. Anderson.

169

Id. at 10.

170

Rec. Doc. 203-4.

171

Rec. Doc. 180-1 at 15.

172

Id.

173

Rec. Doc. 196-1 at 7–8.

174

Rec. Doc. 144 at 4.

28

V. Conclusion
Based on the foregoing, the Court finds that CCS has not set forth a basis for exclusion or
limitation of the testimony of Dr. William Anderson. However, the Court will grant the parties
until August 2, 2019 to complete the supplemental deposition of Dr. Anderson. Accordingly,
IT IS HEREBY ORDERED that CCS’ Motion to Exclude or Limit the Testimony of
William Anderson175 is DENIED.
IT IS FURTHER ORDERED that the parties are granted until August 2, 2019 to
complete the supplemental deposition of Dr. Anderson.

17th
NEW ORLEANS, LOUISIANA, this _____ day of July, 2019.

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

175

Rec. Doc. 180.

29