Lewis et al v. Cain et al
RULING granting 192 MOTION to Exclude Testimony of David Thomas. Signed by Judge Shelly D. Dick on 9/29/2017. (SGO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JOSEPH LEWIS, JR., ET AL.
BURL CAIN, ET AL.
Before the Court is the Plaintiffs’ Motion to Exclude Testimony of David Thomas.1
The motion is opposed.2 For the reasons herein, the motion shall be GRANTED.
Plaintiffs are inmates at Louisiana State Penitentiary (“Angola”) who bring this
action on their own behalf and, putatively “on behalf of a class of prisoners who the named
Plaintiffs claim are now, or will in the future be, subjected to the medical care policies and
practices of [Angola].”3 Plaintiffs allege that the inmate medical care at Angola violates
the Eighth Amendment of the U.S. Constitution and the ADA.4 Plaintiffs seek declaratory
and injunctive relief.
Central to the Eighth Amendment claim is the medical standard of care owed to
prisoners by the confining authority. On this issue, Defendants seek to offer the expert
opinion and testimony of Dr. David L. Thomas5, who was engaged by the Defendants to
Rec. Doc. 192.
Rec. Doc. 205.
Rec. Doc. 1, ¶ 149.
Rec. Doc. 1.
M.D., J.D., Ed.D. Rec. Doc. 192-2.
“provide opinions regarding the care provided by the Louisiana State Penitentiary at
In his report, Dr. Thomas provides the following opinions7:
1. “that [i]ncarceration [f]acilities are unique environments in which to
practice medicine” that exist “primarily for the custody and control of
detainees and inmates, and only secondarily, [to provide] medical
2. “it is not unusual for medical routines and procedures [in an
incarcerated setting] to have to be delayed or truncated because of
3. “that the operations of the medical and security services [at Angola]
comport with those of other prisons and are within the standard of
4. that “with regard to each of the Plaintiffs’ complaints, care and treatment
should be evaluated individually to determine validity of the complaint
from the perspective of an expert and to determine if there is a nexus
through the complaints and the treatment to warrant certification as a
Class,” and that “Plaintiffs have no central nexus of commonality that
would warrant a class action.”11
Rec. Doc. 192-2, pp. 4-5.
Rec. Doc. 192-2. Dr. Thomas enumerates opinions in 7 numbered paragraphs, but the opinions expressed
in paragraphs 1, 5 and 11 are duplicative.
Rec. Doc. 192-2, p. 17, ¶ 6. This opinion is repeated in paragraphs 5 and 11 of his report.
Rec. Doc. 192-2, p. 17, ¶ 7.
Rec. Doc. 192-2, p. 17, ¶ 8.
Rec. Doc. 192-2, pp. 22-23, ¶9, and pp. 72-73.
5. Having identified “items that could probably be improved”, he opined that
“intervention from the state medical director rather than a judicial
process is the appropriate way to bring about those changes.”12
(Henceforth, for ease and clarity, Dr. Thomas’s opinions will sometimes be referenced by
the numerical designations set forth above.)
LAW AND ANALYSIS
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
witness testimony. Rule 702 states,
[i]f scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
“The proponent of expert testimony ... has the burden of showing that the
testimony is reliable”13 and must establish the admissibility requirements “by a
preponderance of the evidence.”14 Both scientific and nonscientific expert testimony is
subject to the framework set out by the Supreme Court in Daubert v. Merrell Dow
Pharms.15 which requires trial courts to make a preliminary assessment to “determine
whether the expert testimony is both reliable and relevant.”16
Dovetailing the admissibility requirements of FRE 702, Rule 26 of the Federal
Rules of Civil Procedure requires that an expert report contain “(i) a complete statement
Rec. Doc. 192-2, p. 72.
U.S. v. Hicks, 389 F.3d 514, 525 (5th Cir.2004).
U.S. v. Fullwood, 342 F.3d 409, 412 (5th Cir.2003).
509 U.S. 579, 588, 113 S.Ct. 2786, 2794, 125 L.Ed. 2d 469 (1993).
Burleson v. Tex. Dep't of Criminal Justice, 393 F.3d 577, 584 (5th Cir.2004); see Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174, 143 L.Ed. 2d 238 (1999).
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; [and] (iii) any exhibits that will be used
to summarize or support them.” Fed.R.Civ.P. 26(a)(2)(B).
“An expert may base an opinion on facts or data that the expert has been made
aware of or personally observed.”17 “Expert reports must include “how” and “why” the
expert reached a particular result, not merely the expert's conclusory opinions.”18 When
an expert “fail[s] to provide sufficiently detailed information regarding the bases of [the
expert's] opinion” the opinion testimony should be excluded.19
A. Standard of Care Opinions (Opinion Numbers 1 & 2)
Plaintiffs move to exclude Dr. Thomas’ opinions and testimony regarding the
standard of care principally on the argument that “there is an adequate ‘fit’ between the
data and the opinion proffered.”20 Plaintiffs argue that, because Dr. Thomas cannot
identify and has no contemporaneous record of the “over 100 inmates” whom he
interviewed and whom he contends “related positive experiences and satisfaction with
the health care services they are receiving,”21 the Defendants cannot carry their
evidentiary burden of showing that “the testimony is based on sufficient facts or data”22
or that “the expert has reliably applied the principles and methods to the facts of the
case.”23 Plaintiffs likewise argue that, because Dr. Thomas is unable to articulate or
Fed. R. Evid. 703.
See Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n. 6 (7th Cir.1998); Reed v. Binder,
165 F.R.D. 424, 429 (D.N.J.1996); Kuzmech v. Werner Ladder Co., No. 3:10-cv-266-VLB, 2012 WL
6093898, at *9 (D.Conn., Dec. 7, 2012).
Koppell v. New York State Bd. of Elections, 97 F.Supp.2d 477, 481 (S.D.N.Y.2000); Kuzmech v. Werner
Ladder Co., No. 3:10-cv-266-VLB, 2012 WL 6093898, at *9 (D.Conn., Dec. 7, 2012).
Citing, Moore v. Ashland Chem., 151 F.3d 269, 275 (5th Cir.1998).
Rec. Doc. 192-2, p. 16.
Fed. R. Evid. 702(b).
recollect the “policies, procedures, directives, and guidelines,” that in part informed his
opinions, the Defendants cannot meet their evidentiary burden to satisfy the threshold for
admissibility of expert testimony.
Plaintiffs argue that, absent the ability to identify the factual information which
informed the expert’s opinions, the Court’s Daubert gatekeeping function is thwarted and
the Court is rendered unable to “evaluate whether there is an adequate ‘fit’ between the
data and the opinion proffered.”24
Defendants counter that, because this matter is “scheduled for a bench trial, [and]
[a]lthough Daubert also applies in bench trials, the concern that the fact-finder will be
misled there carries little weight.”25 Defendants further argue that “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.”26 Defendants
distinguish the case of Moore v Ashland Chem.27 cited by the Plaintiffs and, instead, cite
to Carroll v. Morgan28 as instructive. Finally, the Defendants implore the Court to consider
Dr. Thomas’ “opinion regarding the quality of health care . . . in the context of his vast
Dr. Thomas’ report and deposition identifies the following bases as informing his
opinions in this case:
Note 13, supra.
Rec. Doc. 205, p. 2, citing cases from the Northern District of California.
Rec. Doc. 205, p. 3 citing, Primrose Operating Co. v. National American Ins. Co., 382 F.3d 546, 562 (5th
Cir.2004) (emphasis original).
151 F.3d 269 (5th Cir. 1998).
17 F.3d 787, 790 (5th Cir. 1994).
Rec. Doc. 205, p. 5.
A one day site visit wherein he made observations, interviewed staff and
“personally spoke to over 100 inmates”30;
Review of “medical records of named Plaintiffs and other inmates
identified and relied upon by Plaintiffs’ experts”31;
Review of the “Complaint and other pleadings; depositions of Plaintiffs,
Defendants, and others taken in the litigation”32; and
Review of “the policies, procedures, guidelines directives and/or
guidelines concerning the delivery of medical care at LSP.”33
While conceding that Dr. Thomas relied on interviews “with staff and inmates” and
on “policies, procedures, guidelines directives and/or guidelines,”34 the Defendants do not
address the gravamen of the Plaintiffs’ argument, namely; who did he interview and what
policies etc. did he rely on?
Dr. Thomas states that “[he] personally spoke to over 100 inmates [and that] [a]ll
inmates interviewed related positive experiences and satisfaction with the health care
services they are receiving, except one [and that] [t]heir responses corresponded with the
impression given of the excellent quality of health care that is being provided at this
facility.”35 In fact, Dr. Thomas’ expert report consists extensively of his observations. His
observations along with his interviews of over 100 unidentified inmates led him to the
conclusion and opinion that Angola is delivering an “excellent quality health care”.
Rec. Doc. 192-2, pp. 5, 16; 192-3.
Id. p. 17.
Id. See also, Rec. Doc. 205, p. 3.
Rec. Doc. 205, p. 3.
Rec. Doc. 192-2, p. 16.
Dr. Thomas also relies, in part, upon unspecified “policies, procedures, guidelines
directives and/or guidelines” to conclude that “the operations of the medical and security
services [at Angola] comport with those of other prisons and are within the standard of
The Defendants, as the proponent of Dr. Thomas’ expert opinion, bear the burden
of demonstrating admissibility. Plaintiffs argue that Defendants simply have no way to
show “the testimony is based on sufficient facts or data” and “the expert has reliably
applied [reliable] principles and methods to the facts of the case.” Fed. R. Evid. 702(b) &
(d). Plaintiffs argue that without, at least, the identity of the inmates interviewed and the
identity of the specific “[p]olicies, procedures, directives, and/or guidelines concerning the
delivery of medical care at LSP”36 that he used to formulate his conclusion that Angola
delivers an “excellent quality of health care,”37 his opinion is untestable by the opponent
and the Court is powerless to perform its gatekeeping function.
Plaintiffs argue that Dr. Thomas’ opinions are mere ipse dixit. By way of example,
Plaintiffs’ point to Dr. Thomas’ observation that:
Chronic care patients are seen Monday-Friday with patients being seen
from every 2-3 months or 6-12 months depending on the control and
severity of their chronic condition. A large portion of the offenders are
currently being followed in chronic care clinic for various or multiple
diagnoses. Periodic physical exams are completed annually on offenders
over the age of 50. “[c]hronic care patients are seen . . . every 2-3 months
or 6-12 months depending on the control and severity of their chronic
Dr. Thomas’ report discloses utterly no verifiable or testable basis for this
conclusion of fact, which is foundational to his ultimate opinions on the quality of care.
Rec. Doc. 192-2, p. 17.
Rec. Doc. 192-2, p. 16.
Rec. Doc. 192-2, p. 13.
Underscoring the critical importance of identifying and recording the source information
relied upon to formulate his expert opinions, Dr. Thomas testified that he was unable to
“recall any of the details of the chronic care” from the unidentified charts he reviewed.39
The Court agrees with the Plaintiffs, “if it is impossible for the Court to learn what
data the expert relied on, it is impossible for the Court to evaluate whether there is an
adequate ‘fit’ between the data and the opinion proffered.”40
While the case of Moore v. Ashland Chem.,41 is distinguishable on its facts, the
analysis is instructive. An expert’s opinion must be “based upon sufficient facts or data.”42
In other words, there must be a “fit between the data and the opinion proffered”.43 The
case of Carroll v. Morgan44, cited by Defendants, does not alter or change the analysis.
Defendants’ argument that questions relating to the bases and sources of Dr.
Thomas’ opinion go to the weight to be assigned his opinion rather than its admissibility
is unpersuasive. The adversarial system requires that the opponents have the opportunity
to challenge the reliability of the opinion. Without, at least, minimal identifying information
as to the sources of the empirical and investigative information relied upon, the
adversarial process is frustrated and the Court’s gatekeeping function thwarted.
Finally, the Court is unpersuaded by the Defendants’ argument that because this
matter is set for a bench trial the risk of misleading or confusing the finder of fact is of
lesser concern. The integrity of the judicial process, and considerations of judicial
economy, dictate that this virtually untestable opinion testimony be excluded.
Rec. Doc. 192-3, p 134
Rec. Doc. 192, citing, Moore v. Ashland Chem., 151 F.3d 269, 276 (5th Cir. 1998)
Fed. R. Evid. 702(b).
Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
17 F.3d 787, 790 (5th Cir.1994).
B. Security Opinions (Opinion Number 3)
Dr. Thomas opines “security services [at Angola] comport with those of other
prisons and are within the standard of care.”45 He is not qualified by education, skill,
training, or experience to opine on security services. His opinion regarding security
services is excluded.
C. Legal Opinions (Opinion Numbers 4 & 5)
Dr. Thomas’ proposed legal opinions shall also be excluded. Dr. Thomas opines
that “[t]he Plaintiffs have no central nexus of commonality that would warrant a class
action”46 and that “with regard to each of the Plaintiffs’ complaints, care and treatment
should be evaluated individually to determine validity of the complaint from the
perspective of an expert and to determine if there is a nexus through the complaints and
the treatment to warrant certification as a Class.”47
The questions of class certification, and the component Rule 23 inquiries, such as
commonality, are within the exclusive province of the Court. “[I]t is well-established in the
Fifth Circuit that Rule 704 does not permit an expert to render conclusions of law.”48
For the same reasons, Dr. Thomas’ opinions that any “improvement[s] that LSP
should bring about is best brought about by incremental administrative action, not a
judicial action or mandate”49 are excluded. Opinions regarding the propriety of the use of
judicial process are wholly inappropriate. This case presents questions arising under the
United States Constitution and Federal law. This Court, and not Dr. Thomas, nor any
Rec. Doc. 192-2, p. 17, ¶8.
Rec. Doc. 192-2, p. 70.
U.S. v. Clark, No. 09-cr-114, 2010 WL 2710569, at *2 (E.D. Tex. July 7, 2010).
Rec. Doc. 192-2, p. 73. Dr. Thomas opines that “[a]n intervention from the state medical director rather
than a judicial process is the appropriate way to bring about those changes.” Id. p. 73.
administrative agency or tribunal, is endowed with the constitutional mandate to interpret
and apply the United States Constitution and Federal law. Dr. Thomas’ opinions regarding
the propriety and or advisability of this Court’s exercise of jurisdiction over questions of
Constitutional and Federal law are excluded.
For the reasons outlined above, the Plaintiffs’ Motion to Exclude Testimony of
David Thomas50 is GRANTED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on September 29, 2017.
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
Rec. Doc. 192.
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