Lewis et al v. Cain et al

Filing 353

RULING granting in part and denying in part Defendant's 248 Motion in Limine. Signed by Judge Shelly D. Dick on 10/25/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JOSEPH LEWIS, JR., ET AL.

CIVIL ACTION

VERSUS

15-318-SDD- RLB

BURL CAIN, ET AL.
RULING
Before the Court is the Defendants’ Motion in Limine. 1 The Motion is
opposed.2 Defendants move to exclude the following:
I.

Evidence Regarding Dental and/or Mental Health Care
Defendants move for an in limine order excluding evidence which relates to

dental or mental health care. Plaintiffs’ argue that “information regarding dental
and mental health care will be at most incidental, and information . . . may be
relevant to a variety of issues”.3 Relevance of the evidence is best determined at
the time of trial.4 The objections are deferred to the time of trial. The Motion in
Limine to exclude pretrial evidence relating to dental or mental health care is
DENIED.
II.

Evidence Regarding the Delivery of Healthcare at any Correctional
Facility Other Than LSP
Defendants argue that Plaintiffs have identified 130 exhibits that relate to

the delivery of healthcare at facilities other than Louisiana State Penitentiary

1

Rec. Doc. 248.
Rec. Doc. 284.
3
Id., p. 2.
4
Rec. Doc. 284, p. 4, n. 1.
2

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(“LSP”).5 Defendants argue that this evidence is irrelevant.6 Plaintiffs counter that
the exhibits have relevance to issues in the case. For example, Plaintiffs contend
that Department of Corrections’ policies and practices are the same across
correctional facilities and that the individual Defendants’ “knowledge that a given
practice can expose inmates to risks is relevant no matter what facility it concerns.
Similarly, their opinions and actions in relation to one facility may shed light on their
opinions and actions in relation to LSP.” 7

The Court finds that relevance

determinations are best made at the time of trial. Accordingly, objections to
evidence regarding healthcare delivery at other DOC facilities are deferred to the
time of trial. The Motion in Limine is DENIED.
III.

Evidence Not Timely Disclosed in Discovery
A. Evidence pertaining to 56 non-party inmates
Defendants move to exclude evidence related to 56 non-party inmates

referred to as “absent class members” which Defendants claim were not timely
disclosed in discovery. 8 Plaintiffs counter that “[a]ll prisoners currently in the
custody of LSP or who have been in the custody of LSP [since 2012]” were
identified as witnesses in the Plaintiffs’ Rule 26 Initial Disclosures.9 Plaintiffs filed
a second amended disclosure on December 2, 2016, which specifically identified
52 ‘absent class members’. The other 4 ‘absent class members’ were identified in
the Pretrial Order. The discovery deadline fixed by the Court was September 30,

5

Rec. Doc. 248-1, p. 4.
Doc. 248-1, pp. 2-5.
7
Id. at p. 6
8
Rec. Doc. 248-1, p. 6.
9
Rec. Doc. 284, p. 9.
6 Rec.

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2016.
While the specific identity of the 56 ‘absent class members’ was not
provided until after the discovery deadline, the Defendants were on notice that any
LSP inmates from 2012 to present were possible witnesses. The Court finds that
Defendants have failed to demonstrate prejudice. The trial of this matter has not
been scheduled and class certification remains undetermined. Upon timely Motion
filed, the Court will grant limited leave to the Defendants to conduct discovery of
the 56 inmates in advance of trial to cure any potential prejudice. The Motion to
Exclude testimony from and evidence pertaining to the 56 inmates referred to as
‘absent class members’ is DENIED.
B. Testimony of Elizabeth Compa
Defendants move to exclude attorney Elizabeth Compa, a third party
witness identified by Plaintiffs who is to testify to “[p]ersonal [o]bservations
regarding medical care delivery, the facility, and accommodation of disabilities”.10
Defendants argue that Compa was not disclosed as a potential witness in
discovery.
Plaintiffs propose to offer testimony of Compa, “former counsel for Plaintiffs
who left the Promise of Justice Initiative in the fall of 2016, to testify to her firsthand observations of the conditions in the infirmaries and medical dorms.” 11
Compa was first disclosed by Plaintiffs as a proposed fact witness on April 14,
2017,12 well beyond the September 30, 2016 discovery deadline. The Plaintiffs

10

Rec. Doc. 242-7, p. 4.
Rec. Doc. 284, p. 14.
12
Rec. Doc. 248-1, p. 7.
11

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explanation for the failure to identify Compa as a potential witness is that she had
not left the firm before the discovery deadline. 13 The Court finds the Motion in
Limine is well grounded. While a continuance of the discovery deadline to allow
the Defendants time to depose Compa may ameliorate any prejudice of late
disclosure, the Court finds that observations by a third party witness are cumulative
to direct testimony of inmates who receive medical care and treatment. The Motion
to exclude testimony of Elizabeth Compa is GRANTED.
C. Supplemental Chart Review by Plaintiffs’ Rebuttal Experts
Defendants move to exclude supplemental rebuttal expert reports which
included supplemental chart reviews of nine inmates.14 Defendants argue that late
disclosure of additional chart reviews by the experts, after the Plaintiffs’ rebuttal
experts had been deposed, left them without an opportunity to examine the experts
about these chart reviews.
The Parties sought and received numerous extensions of the expert
discovery deadlines.15 The latest Court ordered deadline provides “Defendants’
Expert Report of Dr. Jacqueline Moore due by 10/27/2016. Plaintiffs’ Rebuttal due
by 11/17/2016. Discovery from Experts shall be completed by 12/23/2016.” 16
Defendants submit that “Plaintiffs provided Defendants with rebuttal reports of Dr.
David Thomas and Dr. Jacqueline Moore on November 14, 2016.”17 On December
23, 2016 (the deadline to complete expert discovery), and after Plaintiffs’ experts’

13

Rec. Docs. 284, p. 14.
Rec. Doc. 248-1, p. 11.
15
Rec. Docs. 24, 38, 63, 120, 145.
16
Rec. Doc. 145, pp. 1-2.
17
Rec. Doc. 248-1, p. 11.
14

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had been deposed, “[p]laintiffs provided a supplemental chart review for their
rebuttal report…”.18
Defendants argue that “[supplementary disclosures] are not intended to
provide an extension of the expert designation and report production deadline.” 19
Defendants argue that supplementations to the reports, by adding nine additional
chart reviews, is not mere supplementation, but entirely new opinions on additional
inmates.
Plaintiffs recount the circumstances differently. Plaintiffs submit that
“Plaintiffs’ experts’ report examined the medical care that Defendants provided to
a sample of more than 40 inmates, supported by chart reviews that they attached
in an appendix to the report.”20 According to Plaintiffs, the Defendants thereafter
“took three depositions of Plaintiffs’ expert witnesses without asking a single
question about any of the experts’ chart reviews.”21 Without citation to the record,
Plaintiffs state that “Plaintiffs’ counsel informed Defendants’ counsel during one of
these depositions that the remaining chart reviews would be supplemented, to
which Defendants did not object. Plaintiffs repeated their intention [to supplement]
on a conference call on December 22, 2016 and Defendants again did not
object.”22 Thereafter, and within the deadline set by the Court, “Plaintiffs provided
supplemental chart reviews for nine additional inmates whose records were

18

Id. at p. 12.
Id. citing Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 41 Fed. R. Serv. 3d 741,
172 A.L.R. Fed 675 (5th Cir. 1998) (citing Sierra Club v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir.
1996)).
20
Rec. Doc. 284, p. 15 (citing Rec. Doc. 133-2 at 10 & App’x A).
21
Id.
22
Id.
19

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produced toward the end of discovery.” 23 Plaintiffs submit that, once again,
Defendants did not object nor did they request an opportunity to depose the
experts on the supplement.24 Plaintiffs argue that Defendants have waived their
objection.25
The Court finds that the supplementation occurred within the discovery
deadline. Furthermore, unless the supplementation changed the experts’ opinions,
or addressed opinions not stated in the original reports, there is no foul. According
to Plaintiffs, the experts supplemented “underlying facts in response to
Defendants’ expert report, without changing their opinions and conclusions in any
way.”

26

The Court has not conducted an independent review of the

supplementation, nor is it needed. The supplementation occurred within the
discovery deadline fixed by the Court.
On timely Motion filed, the Defendants will be granted leave to depose the
experts on the supplementation. If the depositions reveal that the experts’ opinions
were materially affected or substantively changed, the Court will entertain leave to
file a Motion in Limine. The Motion to exclude expert testimony regarding
supplemental chart review is DENIED.

23

Id.
Id. at p. 16.
25
Id. p. 16 citing In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) (“As a general rule, when
a party fails to object timely to interrogatories, production requests, or other discovery efforts,
objections thereto are waived.”)
26
Rec. Doc. 284, p. 17.
24

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IV.

Motion to Exclude Evidence of Moot Claims and Claims Not
Administratively Exhausted
Defendants move to exclude testimony and exhibits concerning claims they

contend have not been exhausted through LSP’s Administrative Remedy
Procedure (“ARP”).
A. Mootness
Defendants move to exclude testimony and evidence related to six (6)
former inmates; four of whom are deceased27, one who has been released from
Department of Corrections (“DOC”) custod,

28

and one who is no longer

incarcerated at LSP, but a different DOC facility.29 Defendants argue that these
former LSP inmates “’no longer [have] a legally cognizable interest in the
outcome[,]’ [then] evidence concerning them should be excluded as it is not ‘of
consequence in determining the action.’”30 Defendants argue that the claims of
these former inmates is moot because the “the relief sought would, if granted,
make [a] difference to the legal interests of the parties.”31
Plaintiffs counter that the evidence is relevant to one of the elements of the
Eighth Amendment claims asserted herein, namely whether “’inmates face a
substantial risk of serious harm.’”32 Defendants concede that the four inmates who

27
Id. at p. 15. Joseph Lewis, Jr., Lionel Parks, Edward Giovanni, and Shannon Hurd whom
Defendants represent have “passed away since the filing of the present lawsuit.” Rec. Doc. 248-1,
p. 14-15.
28
Defendants represent that Cedric Evans is no longer incarcerated at LSP as he was released
from DOC custody on January 22, 2016.
29
Id. Defendants represent that Alton Adams is no longer housed at LSP. Mr. Adams was
transferred to Elayn Hunt Correctional Center on May 5, 2016, where he remains to this day.
30
Rec. Doc. 248-1, p. 15.
31
Id. citing Bowman v. Corr. Corp. of America, 350 F.3d 537, 550 (6th Cir. 2003) (citing McPherson
v. Mich. High Sch. Athletic Ass’n, 119 F.3d 453, 458 (6th Cir. 1997) (en banc)).
32
Rec. Doc. 284, p. 18, Citing Farmer v. Brennan, 114 S.Ct. 1970, 1983, 511 U.S. 825, 846 (U.S.
1994) (“defendant-officials were at the time suit was filed, and [at the time of trial] knowingly and
unreasonably disregarding an objectively intolerable risk of harm”.).

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are now deceased “passed away since the filing of the present lawsuit.”33 They
were inmates at LSP at the time suit was filed. As noted by the Northern District of
Texas Court, evidence regarding the quality of medical care near the time of
incarceration is relevant to the question whether the alleged unconstitutional
conditions existed.34
Defendants’ Motion to exclude evidence pertaining to the care of former
LSP inmates is DENIED.
B. Failure to Exhaust Administrative Remedies
The failure to exhaust administrative remedies is an affirmative defense.
Defendants plead same in their Answer.35 The issue was also raised by Motion for
Summary Judgment.36 The issue of exhaustion will be addressed by the Court
when the Motion for Summary Judgment is taken up. The Defendants’ Motion in
Limine in relation to exhausted claims is DENIED.
V.

CONCLUSION
For the foregoing reasons, the Defendants’ Motion in Limine37 is DENIED

in part and GRANTED in part as follows:
The Motion in Limine to exclude pretrial evidence relating to dental or
mental health care is DENIED.
The Motion in Limine to exclude evidence regarding healthcare delivery at
other DOC facilities is DENIED.

33

Rec. Doc. 248-1, p. 15.
Palo v. Dallas Cty., No. 05-cv-527, 2007 W 2140590, at *6 (N.D. Tex. July 26, 2007).
35
Rec. Doc. 13.
36
Rec. Doc. 193.
37
Rec. Doc. 248.
34

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The Motion in Limine to exclude testimony from and evidence pertaining to
the 56 inmates referred to as ‘absent class members’ is DENIED.
The Motion in Limine to exclude testimony of Elizabeth Compa is
GRANTED.
The Motion in Limine to exclude expert testimony regarding supplemental
chart review is DENIED.
The Motion in Limine to exclude evidence pertaining to the care of former
LSP inmates is DENIED.
The Motion in Limine in relation to exhausted claims is DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on October 25, 2017.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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