Labouliere v. Our Lady of the Lake Foundation et al

Filing 125

RULING granting in part and denying in part 94 Motion in Limine to Exclude Testimony of Jody N. Prysock. Signed by Chief Judge Shelly D. Dick on 3/20/2020. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KATRINA RIVERS LABOULIERE,
individually and on behalf of the Estate of
KATHERINE SMITH

CIVIL ACTION NO: 16-785

versus

JUDGE SHELLY D. DICK

OUR LADY OF THE LAKE HOSPITAL,
INC.

MAGISTRATE WILDER-DOOMES

RULING
Before the Court is a Motion in Limine1 by the Defendant, Our Lady of the
Lake Hospital, Inc. (“OLOL”), to exclude Plaintiff’s expert witness Jody N. Prysock,
M.S., C.I. The Motion is opposed by the Plaintiff, Katrina Rivers Labouliere, who is
proceeding on behalf of her deceased mother, Katherine Smith.2 For the reasons
which follow, the Motion3 shall be GRANTED in part and DENIED in part.
I.

PROCEDURAL AND FACTUAL BACKGROUND
Katherine Smith, who was legally deaf, received in-patient care at OLOL.

Plaintiff alleges that the hospital “failed to provide Ms. Smith with the necessary
interpretation services, and thereby failed to provide her with communication that
was equal to that provided to hearing persons in a medical setting.”4
Plaintiff brings claims of disability discrimination under the under Section
504 of the Rehabilitation Act of 1973 (“RA”)5 and Section 1557 of the Patient
1

Rec. Doc. 94.
Rec. Doc. 107.
3
Rec. Doc. 94.
4
Rec. Doc. 74, ¶ 1.
5
29 U.S.C. § 794; Rec. Doc. 74, ¶ 4.
2

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Protection and Affordable Care Act (“ACA”)6 and a companion state law claim
under La. R.S. § 51:2231.7
Plaintiffs retained and identified Jody N. Prysock, M.S., C.I. (“Prysock”) as
an expert witness. Defendants move to exclude Prysock under Daubert.8
Defendant maintains that Prysock is not qualified to render the opinions sought to
be offered and that her opinions are neither reliable nor relevant.
Plaintiff seeks to tender Prysock to give opinion testimony in the following
fields:
“Deaf communication; Deaf culture; American Sign
Language; Interpretation between English and American Sign
Language; VRI; Policies, practices, and procedures for
accommodating deaf individuals and communicating with
deaf individuals in medical settings.”9
In her Report,10 Prysock explains that the “Objective” of her engagement
and proposed opinion is to:
1. “Provide a general framework of models for Deafness. . .”
2. “Evaluate and determine any deficiencies in policies
related to the Deaf and hard of hearing at Our Lady of the
Lake Hospital”
3. “ascertain OLOL’s policy is aligned with national standards
as they pertain to the provision of effective
communication”
4. “assess if these practices are systematically implemented
and sustained”
5. “address if current policies and procedures to reflect in the
best practices and meet standards as set forth by The
Joint Commission and the centers from Medicaid and
Medicare”11
6

42 USC § 18116; Rec. Doc. 74, ¶ 4.
LA. REV. STAT. art. 51:2231.
8
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
9
Plaintiff’s Preliminary Expert Witness Disclosures. Rec Doc. 94-2.
10
Rec. Doc. 94-3.
11
See Id.
7

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Prysock formulated her opinions after conducting a site inspection of the
hospital and interviewing OLOL administrators. By her Report12 she observes and
opines that:





“responses to my questions vague and did not reflect
specific steps to be taken when caring for deaf or hard of
hearing patients or families”
the following communication methods “would not provide
effective communication for many or most deaf or hard of
hearing patients as English is not their first language”:
o Communication cards
o Video Remote Interpretation (“VRI”)
o White board and pen and paper
The response by OLOL administrators interviewed that
Communication in E/R “whatever works best” is
inadequate and suggests administrators are unfamiliar
with the auxiliary aids and devices that should be made
available to a deaf and hard of hearing patients.

Plaintiff seeks to have Prysock offer opinions regarding OLOL’s policies and
procedures for communicating with Deaf and hard of hearing patients. As part of
her analysis, Prysock redlined and critiqued OLOL’s policies and procedures for
communicating with deaf patients. She ultimately opines that “[h]iring qualified
interpreters is the only way hospitals can implement safe measures to prevent
medical errors and adverse events”13 Regarding the use of qualified interpreters,
Prysock opines that:


12
13

Americans with Disabilities Act and Title VI (sic) “requires
that hospitals provide interpreting services to Limited
English Proficient (LEP) patients (which may include Deaf
patients) and those with disabilities that affect their ability
to communicate.”

Rec. Doc. 94-3.
Id.

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



II.

“The Centers for Medicare and Medicaid (CMS) has (sic)
initiated a requirement that all its beneficiaries have
access to interpreters. Hiring qualified interpreters is the
only way hospitals can implement safe measures to
prevent medical errors and adverse events.
The use of qualified Sign language interpreters, which may
include Certified Deaf Interpreters, are imperative in
medical and healthcare settings”.14

LAW AND ANALYSIS
Federal Rule of Evidence 702 and Daubert15 and its progeny are well known

to the Court, and as demonstrated by the briefing, to the counsel for the parties as
well. Federal Rule of Evidence 702 provides that:
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.16
A. Qualification by knowledge, skill, experience, training, or education
Plaintiff argues that “Ms. Prysock is qualified to serve as an expert regarding
communicating with Deaf individuals in a medical setting” because
Ms. Prysock has been certified by the National Registry of
Interpreters for the Deaf for nearly twenty years. She has
worked as part of the Deaf and Hard of Hearing program at
two hospitals in New York. Ms. Prysock has served as an
adjunct professor at the CUNY School of Professional studies
teaching a course regarding cultural aspects of disability.6
She is a founding member of the Healthcare Communication
Access Committee. Ms. Prysock was on the Board of
Directors for the National Council on Interpreting in
14

Rec. Doc. 94-3.
Daubert, 509 U.S. 579.
16
FED. R. EVID. 702.
15

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Healthcare. She served as a Chair on the Healthcare Access
Expert Committee for the National Association of the Deaf.9
Ms. Prysock co-authored a guide for effective communication
in healthcare. Finally, Ms. Prysock has worked as a
trainer/consultant on interpreting in medical settings and
caring for Deaf and hard of hearing patients.17
By the plain language of FRE 702 an expert may be qualified by “scientific,
technical, or other specialized knowledge” if the proposed opinion testimony will
“help the trier of fact to understand the evidence or to determine a fact in issue”
and “the testimony is based on sufficient facts or data” and “the testimony is the
product of reliable principles and methods” and “the expert has reliably applied the
principles and methods to the facts of the case”.18
Many Courts analyze the “knowledge, skill, experience, training, or
education” requirement of Rule 702 as a threshold inquiry.19 This Court will
evaluate the “knowledge, skill, experience, training, or education” requirement as
a component of the other four requirements for admissibility; namely, will the
opinion testimony assist the trier of fact, is it derived from or supported by sufficient
facts or data, were the principles and methods used reliable and were they reliably
applied. In short, the relevance and reliability of the proposed opinions must be
evaluated in conjunction with the professed qualifications of the proffered expert.

17

Rec. Doc. 107 p. 5 (footnotes, citations, and emphasis omitted).
FED. R. EVID. 702.
19
“The threshold inquiry is whether the expert possesses the requisite qualifications to render
opinion on a particular subject matter.” Hunt v. McNeil Consumer Healthcare, 297 F.R.D. 268, 272
(E.D. La. 2014), citing Wagoner v. Exxon Mobil Corp., 813 F.Supp.2d 771, 799 (E.D. La. 2011);
see also Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999) (“A district court should refuse to allow
an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or
on a given subject.”). Having defined the permissible scope of the expert's testimony, a court next
inquires whether the opinions are reliable and relevant. See United States v. Valencia, 600 F.3d
389, 424 (5th Cir. 2010).
18

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B. Relevance Inquiry: Assistance to the Trier of Fact
In this case, the question considering this factor the question is: Is Prysock
qualified to serve as an expert regarding communicating with deaf individuals in a
medical setting and will her opinions assist the jury? Among other things,20 Plaintiff
points principally to Prysock’s experience as the Manager of the Deaf and Hard of
Hearing Program, and the Director of Language, Cultural and Disability Services,
at NYUMC.21
FRE Rule 702’s requirement that evidence or testimony “assist the trier of
fact to understand the evidence or to determine a fact in issue” goes primarily to
relevance.22 Defendant argues that the ACA and the RA require evidence of actual
knowledge and therefore opinion testimony that goes to best practices is
tantamount to a constructive knowledge standard and therefore irrelevant.23 The
Plaintiff argues in opposition that the Fifth Circuit has not adopted a specific
standard of intent and instead focused on the “widely accepted principal that intent
requires that the defendant at least have actual notice of a violation.”24 The

20

Plaintiff submits that “Ms. Prysock has been certified by the National Registry of Interpreters for
the Deaf for nearly twenty years. She has worked as part of the Deaf and Hard of Hearing program
at two hospitals in New York. Ms. Prysock has served as an adjunct professor at the CUNY School
of Professional studies teaching a course regarding cultural aspects of disability. She is a founding
member of the Healthcare Communication Access Committee. Ms. Prysock was on the Board of
Directors for the National Council on Interpreting in Healthcare. She served as a Chair on the
Healthcare Access Expert Committee for the National Association of the Deaf. Ms. Prysock coauthored a guide for effective communication in healthcare. Finally, Ms. Prysock has worked as a
trainer/consultant on interpreting in medical settings and caring for Deaf and hard of hearing
patients.” Rec. Doc. 107 p. 5 (citations omitted).
21
Id. p. 6.
22
“This condition goes primarily to relevance.” Daubert, 509 U.S. at 591; Mathis v. Exxon Corp.,
302 F.3d 448, 459–460 (5th Cir. 2002).
23
Rec. Doc. 94-1 p. 13-14.
24
“Though intent is a necessary element of a damages claim, we have previously declined to adopt
a specific standard of intent.” See, Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App'x 180,
184 (5th Cir. 2015) (per curiam) (stating that “[w]e did not define what we meant by intent in Delano–

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applicable legal standard is a matter for the jury instructions or a Rule 50 Motion.
Whether OLOL’s deaf patient communication practices are effective is a factual
question and therefore the relevance factor is satisfied. Defendant concedes that
“in order to avoid discrimination [the] accommodation of a person’s disability need
not be ideal; instead, it need only be reasonable and effective.”25 Additionally, the
Court finds that deaf communication practices are outside the general
understanding of the average hearing juror; hence, testimony regarding deaf
communication in a medical setting will assist the trier of fact. The Court also finds
that by virtue of her experience,26 Prysock is qualified to provide testimony
regarding effective deaf communication in a medical setting.
Defendant further argues that testimony “regarding deaf culture and
nuances/norms within the deaf community are likewise irrelevant because they will
not assist the trier of fact.”27 The Court finds that deaf culture is likewise outside of
the general knowledge and understanding of the average hearing juror and an
understanding of the cultural norms and particularities within the deaf community
will be of assistance to the jury in its factual inquiries.
The Court finds however, that Prysock is not qualified by knowledge, skill,
experience, training, or education to opine as to legal or regulatory requirements
of the Americans with Disabilities Act or the Centers for Medicare and Medicaid

Pyle”). More recently, the Circuit again did not reach the issue of what proof of “intent” requires.
“We need not delineate the precise contours [of intent] in this case.” Miraglia v. Board of
Supervisors of Louisiana State Museum, 901 F.3d 565, 574-5 (5th Cir. 2018).
25
Rec. Doc. 94-1, citing, Arce v. Louisiana, 226 F. Supp. 3d 643, 651 (E.D. La. 2016) (citation
omitted)., citing Wells v. Thaler, 460 F. App’x 303, 313 (5th Cir. 2012).
26
See Rec. Doc. 107 p. 5 (footnotes, citations, and emphasis omitted).
27
Rec. Doc. 94-1 p. 14.

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(CMS). Any opinion testimony by Prysock regarding the legal and or regulatory
requirements of the RA, ACA, ADA and CMS28 regulations shall be excluded at
trial.
C. Reliability
1. Sufficiency of Facts or Data Relied Upon
Prysock formulated her opinions after conducting a site inspection of the
hospital, interviewing OLOL administrators and evaluating OLOL’s written policies
and procedure pertaining to communicating with deaf patents.29 Defendant points
out that “she has not read any depositions in this case, never interviewed or even
met the Ms. Smith, and has not reviewed any medical records.”30 The Court finds
the sufficiency of the facts and data relied upon by Prysock to be less than
circumspect. However, the Court is persuaded that this is “soft science” and as
argued by Plaintiff Prysock has “real world experience . . . developing and
implementing policies and procedures to ensure that hospital staff is providing
Deaf patients with equal access to communication.”31 The Fifth Circuit has
recognized the “inherent methodological limitations in all social-science
research.”32 The Court finds that the facts and data relied upon together with
Prysock’s experience are sufficiently reliable.

28

Specific reference is made to Prysock’s report which opines that: the Americans with Disabilities
Act and Title VI [sic] “requires that hospitals provide interpreting services to Limited English
Proficient (LEP) patients (which may include Deaf patients) and those with disabilities that affect
their ability to communicate”, and “The Centers for Medicare and Medicaid (CMS) has [sic] initiated
a requirement that all its beneficiaries have access to interpreters.” Rec. Doc. 94-3 p. 11.
29
Rec. Doc. 94-3, 107 and 107-2.
30
Rec. Doc. 94-1, citing Exhibit C, pp. 84:20-85:9; p. 113:2-114:13.
31
Rec. Doc. 107.
32
U.S. v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006), citing Jenson v. Eveleth Taconite Co., 130
F.3d 1287, 1297 (8th Cir. 1997).

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2. The Reliability of the Methodology Used
Defendant argues that Prysock “employed no methodology other than her
own beliefs.”33 Plaintiff counters that her “methodology is reliable because she
bases her testimony on her professional and real-world experiences.”34 What was
done in this case is: Prysock interviewed OLOL staff and administrators, made
observations at a site visit, and evaluated OLOL written policies and procedures
regarding communication with deaf patients; she then compared and contrasted
that data with what she considers to be best practices based on her professional
experience and knowledge. The Court finds that Prysock is qualified by skill,
training and experience to opine on best practices for communicating with deaf
persons in medical settings, and that the methodology used, while not scientific or
technical, is nonetheless reliable under facts of this case.

33
34

Rec. Doc. 94-1 p. 19.
Rec. Doc. 107 p. 10.

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III.

CONCLUSION
For the foregoing reasons, the Motion in Limine35 to exclude testimony of

Jody N. Prysock is GRANTED in part and DENIED in part. The testimony of Jody
N. Prysock shall be limited and she shall not be permitted to provide opinion
testimony on matters of law, specifically, the legal requirements under Section 504
of the Rehabilitation Act of 1973 (“RA”), Section 1557 of the Patient Protection and
Affordable Care Act (“ACA”), and analogous provisions of the Americans with
Disabilities Act.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana the 20th day of March, 2020.

S

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

35

Rec. Doc. 94.

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