Moore et al v. LaSalle Corrections Inc et al
Filing
368
MEMORANDUM RULING re 333 Second MOTION to Strike filed by Duan Rosenthal, Reginald Curley, Aultman, Danielle Walker, Gerald Hardwell, City of Monroe, Kenneth Hart, Reginald Williams, Roy Brown, Ray Hanson, Jeremy Runner, William Mitchell, Richwood Correctional Center L L C, Jody Foster, Alton Hale, LaSalle Management Co L L C. Signed by Judge Terry A Doughty on 10/30/2020. (crt,Crawford, A)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
ERIE MOORE, JR., ET AL.
CIVIL ACTION NO. 3:16-CV-01007
VERSUS
JUDGE TERRY A. DOUGHTY
LASALLE CORRECTIONS, INC.,
ET AL.
MAG. JUDGE KAREN L. HAYES
RULING
Pending here is the Second Motion to Strike filed by Defendants Archie Altman; Sgt. Roy
Brown; Reginald Curley; Jody Foster; Alton Hale; Warden Ray Hanson; Sgt. Gerald Hardwell;
Sgt. Kenneth Hart; William Mitchell; Sgt. Duan Rosenthal; Jeremy Runner; Danielle Walker; Sgt.
Reginald Williams; LaSalle Management Co., LLC; Richwood Correctional Center, LLC;
Tommy Crowson; and City of Monroe (collectively “Defendants”) [Doc. No. 333]. Plaintiffs Erie
Moore, Jr., Tiffany Robinson, and Tamara Robinson (collectively “Plaintiffs”) have filed an
opposition. [Doc. No. 345]. Defendants have filed a reply to the opposition [Doc. No. 347].
For the following reasons, the Second Motion to Strike [Doc. No. 333] is GRANTED IN
PART and DENIED IN PART.
I.
FACTS AND PROCEDURAL HISTORY
This lawsuit follows the death of two detainees at the Richwood Correctional Center
(“RCC”), a private detention center located in Ouachita Parish, Louisiana. RCC is owned and
operated by LaSalle Management Company, LLC (“LaSalle”) and/or Richwood Correctional
Center, LLC (“Richwood”), related private entities.
At the time of the incident, Moore was being detained at RCC after having been arrested
by Monroe Police Department (“MPD”) Lieutenant (then-Corporal) Tommy Crowson (“Officer
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Crowson”) for disturbing the peace on October 12, 2015. The next day, October 13, 2015,
Moore was involved in an altercation with another detainee, Vernon White (“White”). White
died shortly after the altercation. Moore was forcibly removed from the holding cell after the
altercation occurred. Soon thereafter, Moore became unconscious. He died on November 14,
2015, without ever having regained consciousness.
Plaintiffs are the children and heirs of Moore. In their original Complaint, filed July 8,
2016, Plaintiffs alleged that the death of their father was caused by multiple Defendants. [Doc.
No. 1]. On December 5, 2017, an Amended Complaint was filed which added new Defendants
and continued the previous allegations. [Doc. No. 63]. On April 11, 2019, the Third Amended
Complaint was filed, which added more Defendants to the suit, repeated many of the original
claims, and made new claims. [Doc. No. 140].
After Plaintiffs filed a Motion for Partial Summary Judgment [Doc. No. 230], Defendants
filed a Motion to Strike [Doc. No. 282], directed toward several exhibits filed by Plaintiffs in
support of their motion. That Motion to Strike has been addressed in a separate Ruling.
Defendants, either together or in various combinations, have also filed several pending
Motions for Summary Judgment, to which Plaintiffs filed Oppositions. Defendants then filed the
pending Second Motion to Strike [Doc. No. 333], which is directed toward several of the same
exhibits that their first motion to strike addressed, as well as several additional exhibits. In the
pending motion, Defendants seek to strike the following exhibits attached to Plaintiffs’
Oppositions to Defendants’ Motions for Summary Judgment [Doc. Nos. 299, 300, 301, 302 and
303]:
1.
Reports of Deputy Wells and Deputy Murphy,
Exhibits 61 and 62;
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2.
Exhibit 75 - Louisiana Administration Code, Title
22, Part III, Subpart 2. Minimum Jail Standards
3.
Exhibit 158 - Dr. John T. Owings’ Report;
4.
Exhibit 163 - Kenny Sanders’ Report;
5.
Exhibit 169 - DOC records on Erie Moore;
6.
Exhibit 180 - Hanser’s Return;
7.
Exhibits 188 and 194 - Declarations of Willie
Woodard and Yolanda Jackson dated April 27, 2020;
8.
Exhibit 189 - Declaration of Col. Rogers dated April
27, 2020;
9.
Exhibit KS – Deposition of Kenny Sanders; and
10.
Exhibit 190 - Declaration of Kenny Sanders with
attachments dated April 27, 2020.
Defendants contend that the above listed exhibits, in whole or in part, are inadmissible
under the dictates of Rules 26 and 56 of the Federal Rules of Civil Procedure, the Order of the
Court, and/or numerous rules of the Federal Rules of Evidence. Defendants further contend that,
in the event the report, declaration, and deposition testimony of Kenny Sanders and the declaration
of Col. Rogers are not stricken in their entirety, then all of the opinions expressed therein should
be stricken. Plaintiffs respond that the exhibits are admissible under the above cited rules.
The issues are fully briefed, and the Court is prepared to rule.
II.
LAW AND ANALYSIS
A.
Legal Standards
Under FED. R. CIV. P. 56(c)(2), “[a] party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence.” 1 Hearsay
1 To the extent that the parties cite the Court to Federal Rule of Civil Procedure 12(f), governing motion to
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evidence and unsworn documents that cannot be presented in a form that would
be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John
W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).
However, “it is not dispositive whether the [disputed materials] in their current
form are admissible in evidence. At the summary judgment stage, materials cited to support or
dispute a fact need only be capable of being ‘presented in a form that would
be admissible in evidence.’” LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534
(5th Cir. 2016) (quoting FED. R. CIV. P. 56(c)(2) (emphasis added)).
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in determining the action.” FED.
R. EVID. 401. Generally, hearsay is not admissible unless stated otherwise by a federal statute, the
Federal Rules of Evidence, or other rules of the Supreme Court. See FED. R. EVID. 802. “Hearsay”
is a statement that: “(1) the declarant does not make while testifying at the current trial or hearing;
and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” FED.
R. EVID. 801(c).
strike pleadings, that rule is inapplicable. Rule 12(f) authorizes the Court to strike “from any pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Evidence submitted
in support of a motion for summary judgment does not constitute a pleading, and, th erefore, Rule 12(f) is
inapplicable. See Worldwide Subsidy Grp., LLC v. Worldwide Pants Inc., 729 F. App'x 625, 625-26 (9th Cir.
2018) (“WSG filed a Rule 12(f) motion to strike which is inapplicable to a motion for summary
judgment.”); Pilgrim v. Trs. of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997), abrogated on other grounds
by Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002); Claridy v. The City of Lake City, No. 3:13-CV-558-J39PDB, 2014 WL 12656605, at *1 (M.D. Fla. Oct. 24, 2014) (“As a threshold matter, a motion to strike is not the
appropriate vehicle for challenging the admissibility of evidence submitted in connection with a motion for
summary judgment.”); Shah v. Chertoff, 2007 WL 2948362 at *5 (N.D. Tex. Oct. 10, 2007) (“Rule 12(f) ... does not
apply to the instant situation because evidence submitted in support of a Rule 56 motion for summary judgment is
not considered a motion or pleading for purposes of Rule 12.”); Jackim v. City of Brooklyn, No. 1:05 CV 1678, 2006
WL 8446885, at *1 (N.D. Ohio July 18, 2006). (“While some courts have employed Federal Rule of Civil Procedure
12(f) to strike non-pleading materials – e.g., affidavits, or portions thereof – there is no basis in the Federal Rules for
doing so.”) (citing McLaughlin v. Copeland, 435 F. Supp. 513 (D. Md. 1977)).
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B.
Analysis
1.
Reports of Deputy Wells and Deputy Murphy, Exhibits 61 and 62
Defendants object to the reports prepared by Deputy Wells and Deputy Murphy on the
basis they are hearsay, contain hearsay within hearsay, and are unsworn.
This objection has been addressed by the Court in the Ruling on the first Motion to Strike
[Doc. No. 282]. Accordingly, for the same reasons set forth in that Ruling, to the extent that
Defendants’ Second Motion to Strike seeks the exclusion of those portions of the report that
provide the time the deputies arrived at RCC, left RCC, arrived at OCC, and arrived at the hospital,
the Motion is DENIED. To all other extents, the Motion is GRANTED.
2.
Louisiana Administrative Code, Minimum Jail Standards, Exhibit 75
Defendants argue that the Louisiana Administration Code, Title 22, Part III, Subpart 2,
Minimum Jail Standards, is not relevant or admissible and should be stricken from evidence.
Defendants assert that the Minimum Jail Standards are nothing more than guidelines. Furthermore,
they are guidelines for the planning, administration, and construction of parish jails; whereas RCC
is not a parish jail. Thus, whatever may be found in the Minimum Jail Standards is irrelevant to
any issue before the Court. Defendants contend, accordingly, that Exhibit 75, as well as any
reference to the Minimum Jail Standards by any witness or in any pleading should be stricken and
not considered.
Plaintiffs argue that, while the Minimum Jail Standards apply to parish jails, RCC was
acting as a city jail with the same responsibilities. Plaintiffs further argue that the Minimum Jail
Standards are relevant to establishing the prevailing practice at the time, if nothing else, for state
negligence claims.
The introduction to 22 LA ADC Pt III, § 2503, states:
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The purpose of these standards is to provide a reasonable guideline
for use by persons responsible for the planning, administration and
construction of parish jails in Louisiana. They are intended to reflect
the minimum requirements which comply with court orders and
protect the guaranteed rights of inmates in custody. The criteria were
derived from court decisions, Louisiana state statutes, codes and
regulations, and standards developed by organizations in the
criminal justice field. The items generally avoid specific numerical
absolutes so as to be useful to jails of all sizes and populations.
(emphasis added)
Although the Minimum Jail Standards are nothing more than guidelines, the Court finds
they are not inadmissible solely on that basis. While it is clear that internal policies and advisory
national or state standards are not determinative of fault and/or the applicable standard of care, the
Court believes that such policies and standards may be probative as to the controlling standard of
care in this case. See Schurman v. Panola-Harrison Electrical Coop., Inc., No. 03-1467, 2006 WL
8456468, (W.D. La. June 6, 2006).
Accordingly, Defendants’ Second Motion to Strike is DENIED as to the Minimum Jail
Standards.
3.
Dr. John T. Owings’ Report, Exhibit 158
Defendants object to Dr. Owings’ Report as being hearsay, hearsay within hearsay, and as
being unsworn. Also, the report makes reference to a telephone conversation about a video with
Plaintiffs’ counsel which is not evidence, is hearsay, and is hearsay within hearsay.
This objection has been addressed by the Court in the Ruling on the first Motion to Strike
[Doc. No. 282]. Accordingly, for the same reasons set forth in that Ruling, to the extent
Defendants’ motion seeks to strike that portion of the report mentioning a conversation with
Plaintiffs’ counsel about a video, the motion is GRANTED. To any other extent, the motion is
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DENIED. Defendants have not established a valid reason to exclude Dr. Owings’ Report as
summary judgment evidence.
4.
Kenny Sanders’ Report, Exhibit 163
Defendants object to the Kenny Sanders’ Report on the basis it is hearsay, hearsay within
hearsay, and unsworn. Plaintiffs respond that expert reports typically contain hearsay information
and that Sanders has accepted and adopted his report in his sworn Declaration, Exhibit 190.
This objection has been addressed by the Court in the Ruling on the first Motion to Strike
[Doc. No. 282]. Accordingly, for the same reasons set forth in that Ruling, the Court DENIES
Defendants’ Motion to strike with regard to the Sanders Report, Exhibit 163, on these grounds.
The Court will address Defendants’ other objections to Sanders’s opinions below.
5.
DOC Records on Erie Moore, Exhibit 169
The entirety of Defendants’ argument is:
Plaintiffs make argument based upon records that were apparently
received from the Ouachita Parish District Attorney’s Office and
which include notations allegedly made by a DOC employee.
According to the Plaintiffs, their interpretation of Hodges’ report is
that it conflicts with other, admissible, evidence. The report itself is
hearsay and statements and information found in the report are
nothing more than hearsay within hearsay. Furthermore, testimony
or an affidavit from Hodges would not make the “facts” sought to
be introduced through Hodges’ report admissible. Accordingly,
Exhibit 169, and in particular, page 106, must be stricken.
[Doc. No. 333-1, p. 17].
The entirety of Plaintiffs’ response is:
The Ouachita Parish D.A.’s records can be admitted at trial as a
business record. The statements attributable to Linda Hodges can be
admitted because Linda Hodges is expected to testify at trial.
Hodges verifies the existence of false information being provided
through administrative employees like Hodges that Moore was
found unconscious at RCC around 7pm in his cell. He was found
unconscious. But other officers like Runner, Hardwell, Williams and
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Curley contend Moore was conscious and talking around 7pm. That
Moore was found in his cell unconscious contradicts other officers.
The information provided to [the sentence ends here].
[Doc. No. 345, p. 30].
The entirety of Defendants’ reply is:
Plaintiffs argue that because Hodges, the purported recorder of
someone else’s statements in records secured from the D.A.’s office,
can testify at trial about those statements, the documents filed are
admissible. However, Hodge’s recitation of heresay [sic] and/or
double heresay statements found in a report would still be
inadmissible at trial.
[Doc. No. 347, p. 8]
The parties have not made it clear who Linda Hodges is, what her position is, who her
employer is, who gave the information to Hodges, who produced the alleged report, how the parties
came into possession of it, how the District Attorney allegedly came into possession of it, where
it was allegedly kept at the District Attorney’s office, why it wouldn’t be a DOC record, what its
significance is, or how the report was produced. Accordingly, Defendants’ Motion to Strike is
DENIED at this time, although the report will have limited evidentiary value in view of the above.
6.
Hanser’s Return, Exhibit 180
Defendants object to certain documents provided by Dr. Robert D. Hanser which he states
are used by him in conducting Crisis Intervention Training (“CIT”) for peace officers and jailers
[Doc. No. 308-4, pp. 48-97]. Defendants contend these documents were apparently secured from
Dr. Hanser and not through any Defendant. Defendants assert the documents have not been
authenticated, no foundation has been laid, and they contain hearsay and hearsay within hearsay.
Accordingly, these documents and any argument made that is based upon these documents should
be stricken and excluded from consideration.
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Plaintiffs respond that Dr. Hanser trained Monroe city police officers, including Defendant
Officer Crowson, about suicide prevention during CIT and that Exhibit 180 is a subpoena return
from Dr. Hanser containing many of his training materials. Plaintiffs state that Dr. Hanser is
expected to testify, and the training materials are relevant to show that all officers, including
dispatchers, are taught information about suicide prevention during CIT. Plaintiffs assert the
training materials are not hearsay but are admissible as Dr. Hanser’s business records under FED.
R. EVID. 803(6)-(7). Plaintiffs conclude that proof of training standards are relevant to determine
if Crowson or one of the police dispatchers had a duty to Moore to take him to a hospital instead
of to jail.
The Court concludes these documents can be authenticated by Dr. Hanser and can fall
under the business record exception to the hearsay rule. Additionally, they are relevant in
connection with Dr. Hanser’s expected testimony. Accordingly, Defendants’ Motion to Strike is
DENIED as to Dr. Hanser’s documents.
7.
Declarations of Willie Woodard and Yolanda Jackson dated April 27,
2020, Exhibits 188 and 194
Defendants contend that Plaintiffs have submitted the Declarations of Willie Woodard
(“Woodard”) and Yolanda Jackson (“Jackson”) without timely disclosure. Defendants assert that,
in more than four years of extensive written discovery, and in multiple witness lists, Plaintiffs
never disclosed Woodard or Jackson as witnesses. Defendants argue that, pursuant to Rule 26 and
the Court’s Scheduling Order [Doc. 75], the declarations of Woodard and Jackson must be
excluded from consideration in support or in opposition to any Motion for Summary Judgment.
Plaintiffs respond that these witnesses’ potential testimony did not become known to them
until after February 11, 2020. Thus, their existence was unknown until after disclosure deadlines
had expired. Plaintiffs further contend that these witnesses were known to Defendants because
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Jackson is a former employee of RCC and Woodard was a trusty at RCC the night of the incidents
in question who was depicted in the cell and hall videos as cleaning LD-7. Plaintiffs state that they
requested the name of the trusty who cleaned LD-7 and who was depicted in the video on August
17, 2018, and that, on October 18, 2018, Defendants indicated that they would provide the
information once the trusty could be identified. However, Defendants never provided the trusty’s
name, without explanation.
Plaintiffs further respond that Jackson came to their attention on February 11, 2020, when
she called Plaintiffs’ attorney’s office after seeing a media story on this case that aired on February
7, 2020, on a Dallas, Texas station. Jackson identified Woodard as the trusty but Plaintiff’s counsel
was unable to arrange a meeting to interview Woodard until around March 2020.
Plaintiffs state that the attestations of Woodard and Jackson have been presented to rebut
and thereby impeach evidence presented by Defendants, who generally contend that no force at all
was used in the Four-Way. Woodard’s Declaration tends to dispute that, given that fresh pepper
spray was on the walls of the Four-Way. Jackson provides testimony that RCC correctional officers
routinely used pepper spray and used the Four-Way for the purpose of “teaching a lesson.”
Plaintiffs argue that their late awareness of Woodard and Jackson, and the rebuttal of Armbruster
and RCC fact witnesses provides substantial justification. Thus, under these unique circumstances,
the Declarations of Woodard and Jackson should not be stricken. Plaintiffs further submit there is
no trial date pending and thus no undue prejudice.
Defendants reply that Plaintiffs have admitted that Jackson was known to be a witness on
February 11, 2020, and Woodard was known to be a witness in March of 2020. Therefore, it was
at those moments in time that Plaintiffs were obligated to supplement their discovery responses
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and/or Rule 26 Disclosure and/or their Witness List. Instead, Plaintiffs waited until May 22, 2020
to ambush Defendants with new witnesses and new factual allegations.
Since its adoption, Rule 26(a)(1) has provided:
[A] party must, without awaiting a discovery request, provide to the
other parties ... the name and, if known, the address and telephone
number of each individual likely to have discoverable information—
along with the subjects of that information—that the disclosing party
may use to support its claims or defenses, unless the use would be
solely for impeachment.
FED.
R.
CIV.
P. 26(a)(1)(i); Standley
v.
Edmonds–Leach,
783
F.3d
1276,
1281
(D.C.Cir.2015) (citing id.); cf. John H. Beisner, Discovering a Better Way: The Need for Effective
Civil Litigation Reform, 60 DUKE. L.J. 547, 577 (2010) (discussing the history behind this
mandatory disclosure provision). Rule 26(a)(1)’s purpose is “to accelerate the exchange of basic
information about the case and to eliminate the paperwork involved in requesting such information,
and the rule should be applied in a manner to achieve those objectives.” FED. R. CIV.
P. 26 advisory committee's note (1993 amend.); see also Chiasson v. Zapata Gulf Marine Corp.,
988 F.2d 513, 517 (5th Cir.1993) (“The federal rules promote broad discovery so that all relevant
evidence is disclosed as early as possible, making a trial less a game of blind man's bluff and more
a fair contest.” (emphasis in original) (internal quotation marks omitted)).
Another rule authorizes punishment for a party’s failure to comply with Rule
26(a)(1). FED. R. CIV. P.37(c)(1). Rule 37(c)(1) reads:
If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified or is
harmless. In addition to or instead of this sanction, the court, on
motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
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(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi).
Id.; Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir.2004) (quoting rule). In the
making of this determination, courts consider numerous factors, including (1) “the surprise or
prejudice to the blameless party,” (2) “the ability of the offender to cure any resulting prejudice,”
(3) “the amount of disruption to the trial that would result from permitting the use of the evidence,”
and (4) “the bad faith involved in not producing the evidence at an earlier date.” Spearman Indus.
v. St. Paul Fire & Marine Ins. Co., 138 F.Supp.2d 1088, 1094 (N.D.Ill.2001); accord, e.g., Lanard
Toys, Ltd. v. Novelty, Inc., 375 Fed.App’x. 705, 713 (9th Cir. 2010) (citing to David v. Caterpillar,
Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
Many courts have deemed Rule 37(c)(1)’s exclusionary sanction as “mandatory.” Falconer
v. Penn Mar., Inc., 421 F.Supp.2d 190, 207 (D. Me. 2006). In so doing, these courts have
overlooked the safety valve written into Rule 37(c)(1). Its second sentence explicitly allows a court
to substitute its exclusory sanction with any “other appropriate” punishments. FED. R. CIV.
P. 37(c)(1) (referencing the sanctions listed in Rule 37(2)(A) as nonexclusive possibilities); Ortiz–
Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 35
(1st Cir. 2001) (describing Rule 37(c) as affording “wide latitude”). Generally, courts should
“carefully consider Rule 37(c), including the alternate sanctions available, when imposing
exclusionary sanctions that are outcome determinative.” Musser, 356 F.3d at 760 (affirming
judgment but urging cautious application of Rule 37(c)(1)).
Even an unquestioned violation of Rule 26(a)(1), therefore, “does not compel the district
judge to exclude testimony in its entirety” pursuant to Rule 37(c)(1). Roberts ex rel. Johnson v.
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Galen of Va., Inc., 325 F.3d 776, 783–84 (6th Cir.2003); see also, e.g., M.V.B. Collision, Inc. v.
Allstate Ins. Co., 728 F.Supp.2d 205, 225 (E.D.N.Y.2010) (observing that preclusion under Rule
37(c) should follow only once a court has determined that a party has failed to make a
timely disclosure, this failure was without substantial justification or excuse, sanctions are
warranted, and preclusion is appropriate); Allstate Ins. Co. v. Nassiri, No. 2:08–cv–00369–JCM–
GWF, 2010 U.S. Dist. LEXIS 138220, at *14, 2010 WL 5248111, at *5 (D. Nev. Dec. 16,
2010)(“Rule 37(c)(1) does not, however, require the district court in all instances to exclude
evidence as a sanction for late disclosure that is neither justified or harmless.”).
Here, the Court finds that the late disclosure was justified in that Plaintiffs learned of the
existence and/or identities of these witnesses after the deadlines. With specific reference to
Woodard, Defendants failed to furnish the identity of the trusty who was seen on the video despite
a request from Plaintiffs to identify him. Defendants have not established that Plaintiffs were in
bad faith.
Accordingly, Defendants’ Motion to Strike on these grounds is DENIED as to Jackson and
Woodard.
8.
Declaration of Col. Bradney Rogers dated April 27, 2020, Exhibit 189
Defendants object to the Declaration of Col. Bradney Rogers (“Rogers”) on the grounds
that he was not listed as either a lay witness or an expert witness, and that Rogers has not produced
an expert report. Defendants further object that Rogers is not qualified as an expert. Finally,
Defendants object that Rogers’ opinions are inadmissible because they contain a mixture of legal
conclusions and factual findings.
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a.
Failure to Disclose Rogers as a Witness
Defendants contend that Plaintiffs never disclosed Rogers as a witness. Defendants
contend, furthermore, that to the extent Rogers is sought to be used as an expert witness, no
designation of Rogers as an expert has ever been made and no report has ever been provided.
Defendants assert that it was not until after all of the Defendants had filed their Motions for
Summary Judgment, which detailed Plaintiffs’ failures of proof, that Plaintiffs provided the
carefully tailored opinions and conclusions of Rogers in his April 27, 2020 Declaration.
Defendants conclude that, pursuant to Rule 26 and the Court’s Scheduling Order [Doc. 75], the
declaration of Rogers must be excluded from consideration in support or in opposition to any
Motion for Summary Judgment.
Plaintiffs respond that they only became aware of Rogers’ potential as a witness once John
Badger (“Badger”) told Plaintiffs that Rogers allegedly left RCC due in part to the kind of prisoner
treatment Badger had allegedly observed. In July 2019 Plaintiffs propounded an Interrogatory to
Defendants to obtain location information on Rogers [Doc. No. 345-3]. Defendants provided
Rogers’ phone number and address to Plaintiffs on December 3, 2019. [Id.]. Plaintiffs state they
were first able to contact Rogers during late March 2020 although earlier attempts were made.
Rogers met with Plaintiff’s counsel on April 22, 2020. [Doc. No. 345-4]. After several extensions
agreed to by the parties, oppositions were filed May 22, 2020. Plaintiffs conclude the above
establishes substantial justification for the untimely disclosure.
Plaintiffs further argue that
Defendants have not been prejudiced because there is no trial date and they will not object to
Defendants taking Rogers’ deposition.
The Court finds that, unlike the situation with Woodard and Jackson, Plaintiffs have failed
to show there was justification for the delay in disclosing Rogers as a witness. Plaintiffs admit
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that they received Rogers’ telephone number and address on December 3, 2019, from Defendants.
Plaintiffs also admit that they were given Rogers’ name by Badger, but Plaintiffs fail to provide a
date for that disclosure. Plaintiffs claim that Rodgers was not contacted until late March 2020 and
that Rodgers met with Plaintiff’s counsel on April 22, 2020. However, there is no explanation
given as to why Plaintiffs waited until May 20, 2020, through the filing of his Declaration, to
disclose Rogers.
The Court further finds that Defendants have been prejudiced by the delay. Plaintiffs had
the luxury of learning all of the problems with Sanders’ testimony that had been asserted by
Defendants and were thus able to unfairly craft Rodgers’ Declaration to buttress their claims.
Allowing Plaintiffs this avenue to unfairly and untimely attack the motions for summary judgment,
after four years of discovery, defeats the purpose of discovery, disclosure deadlines, deposition
deadlines, expert deadlines, and dispositive motion deadlines.
Plaintiffs also contend that Rogers should not be treated as an expert retained for purposes
of providing expert opinions under Rule 26 because he was not retained, nor was he specially
employed, by Plaintiffs.
Federal Rule of Civil Procedure 26 requires a party to disclose “the identity of any witness
it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” FED. R.
CIV. P. 26(a)(2)(A). In addition to disclosing the identity, if the witness is retained or specially
employed to provide expert testimony in the case, the disclosure must include a written report
complying with certain requirements. FED R. CIV. P. 26(a)(2)(B). If the witness does not fall into
that category and is not required to provide a written report, the disclosure need only state ‘the
subject matter on which the witness is expected to present evidence under Federal Rule of Evidence
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702, 703, or 705” and “a summary of the facts and opinions to which the witness is expected to
testify.” FED. R. CIV. P. 26(a)(2)(C).
The Court finds that Plaintiffs’ argument is of no avail. Plaintiffs failed to satisfy even the
less stringent requirement for witnesses in general, including experts who are not retained. They
did not file a disclosure showing the subject matter and a summary of facts and opinions prior to
filing Rogers’ Declaration. Further, Defendants were prejudiced by this delay. Defendants have
never had the opportunity to cross-examine Rogers on his claimed expertise or his opinions.
The Court finds that there is no justification for Plaintiffs’ delay in disclosing Rogers as a
witness or in failing to provide either an expert report or a summary of the facts and opinions to
which he is expected to testify prior to the filing of Rogers’ Declaration. Furthermore, Defendants
have been prejudiced by the delay. Accordingly, for this reason alone, Rodgers’ Declaration
should be stricken.
However, assuming arguendo that Rodgers’ Declaration should not be stricken on this
basis, the Court will nevertheless consider the other grounds asserted by Defendants for the
exclusion of Rodgers’ Declaration.
b.
Rogers is not Qualified as an Expert
Plaintiffs assert that Rogers has a great deal of experience in training corrections officers,
has more than thirty years of experience in the Louisiana Department of Corrections (“DOC”), has
a work history at RCC, and currently does contract work with DOC.
Defendants respond that Rogers does not provide any information on whether he has ever
been qualified as an expert in anything. Defendants further assert that a search for “Bradney
Rogers” in Westlaw reveals no case where that name has ever appeared. Finally, as indicated
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above, the Defendants were never notified that Rogers was a witness and therefore have never had
the opportunity to cross-examine Rogers on his claimed expertise or his opinions.
In their first Motion to Strike, Defendants argued that Kenny Sanders’ opinions on liability
had to be excluded under Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) and
Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999) and Fifth Circuit jurisprudence. [Doc.
282-1, pg. 10-14]. Here, they incorporate those arguments by reference to exclude Rogers’
opinions, testimony, or evidence.
Under Rule 702, the Court must determine whether the proposed expert witness has
training or experience, and will offer opinions, sufficiently related to the issues and evidence before
the court for the expert’s testimony to assist the trier of fact. Primrose Operating Co. v. Nat’l Am.
Ins. Co., 382 F.3d 546, 562–63 (5th Cir. 2004). The district court must also make a “preliminary
assessment of whether that reasoning or methodology underlying the testimony is scientifically
valid and of whether the reasoning or methodology can be applied to the facts at issue.” Skidmore
v. Precision Printing & Packaging, Inc., 188 F.3d 606, 617 (5th Cir. 1999) (quoting Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993) ). The court “must ensure the expert uses
reliable methods to reach his opinions.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.
2004).
Plaintiffs have failed to offer evidence to show Rodgers is qualified to offer expert
testimony. They offer nothing to show he has ever been qualified as an expert in any field. They
offer nothing to assist the Court in ensuring Rogers uses reliable methods to reach his opinions.
Accordingly, the Court finds that Rogers’s Declaration is also inadmissible on the basis
that he has not been qualified as an expert. However, assuming arguendo that Rogers is qualified
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as an expert, the Court will consider Defendants’ final argument for excluding Rogers’
Declaration.
c.
Rogers’ Declaration is a Mixture of Legal Conclusions and
Factual Findings and, therefore Inadmissible.
Defendants assert that Rogers’ Declaration is inadmissible because it contains a mixture of
legal conclusions and factual findings. They reference the arguments made in their first Motion to
Strike with regard to Sanders’ and Turner’s opinions.
More specifically, Defendants object to the following opinions, conclusions, and
statements in Rogers’ Declaration:
1. Runner’s strike to Mr. Moore hit the right rear of his head.
(Paragraph 5);
2. The suddenness and quickness of Moore’s movement to the
floorshows that Runner did not use a simple push. (Paragraph 5);
3. Moore did not attempt to brace himself against the fall or strike.
(Paragraph 5);
4. Moore was not actively resisting but was at most passively
resisting. (Paragraph 5);
5. Officers are trained not to use a closed fist strike in that situation,
particularly to the head. (Paragraph 5);
6. The strike sent Moore head first into the cell floor, which is
extremely dangerous considering the risk of significant injury to the
head. (Paragraph 5);
7. The fist strike was of significant force as shown by the length of
time Moore was on the floor and that he staggered and seemed dizzy.
(Paragraph 5);
8. Runner’s description in his report of pushing Moore to the floor
does not match what the video shows. (Paragraph 5);
9. Several things done by Hardwell were not consistent with
correctional training. (Paragraph 6);
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10. Moore was not resisting. (Paragraph 6);
11. Moore may have been passively resisting by not following direct
orders. (Paragraph 6);
12. Hardwell and other C.O.s should have handcuffed Moore inside
LD 7. (Paragraph 6);
13. The C.O.s should have secured Moore by holding him by the
arm and legs giving Hardwell the opportunity to safely handcuff
Moore. (Paragraph 6);
14. There is no training offered to C.O.s to grab an inmate from
behind in a “bearhug” style and carry the inmate out of the cell.
(Paragraph 6);
15. C.O.s are not trained to approach inmates from behind.
(Paragraph 6);
16. The “slam” onto the floor in the hallway is extremely dangerous
and should be considered deadly force because eof the high degree
of risk of significant injury to the head. (Paragraph 6);
17. The “slam” by Hardwell is not a recognized tactic. (Paragraph
6);
18. Moore was not actively resisting inside LD 7. (Paragraph 6);
19. Moore did not actively resist while being carried out of LD 7 or
while being slammed down. (Paragraph 6);
20. While on the floor after being slammed, it was evident that
Moore was injured and was not actively moving. (Paragraph 6);
21. Moore was not kicking. (Paragraph 6);
22. Hardwell’s report does not match what is shown in the video.
(Paragraph 6);
23. Moore was not simply placed on the floor but rather Hardwell
used dangerous and significant force on Moore. (Paragraph 6);
24. When Moore was slammed into the floor or onto the floor, he
should not have been hand carried. (Paragraph 7);
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25. The training provided to these officers is that if a stretcher or
some other equipment is not available to carry an inmate, you are to
use a blanket. (Paragraph 7);
26. The drop by Runner was not the fault of Moore. (Paragraph 7);
27. It is evident from the video that Moore was not struggling against
being carried as he was not moving his legs or feet in a manner to
resist being carried. (Paragraph 7);
28.While being carried, Moore appears to be incapacitated.
(Paragraph 7);
29. The drop by Runner amounts to corporal punishment.
(Paragraph7);
30. Several acts of the C.O.s were below standards. (Paragraph 8);
31. C.O.s who were standing in the hallway when Moore was
slammed had first aid training. (Paragraph 8);
32. The C.O.s should have examined Moore and/or called a nurse
for an examination. (Paragraph 8);
33. Each C.O. should have informed the nurse of the head strike.
(Paragraph 8);
34. Each C.O. should have immediately called for medical
assistance. (Paragraph 8);
35. Moore should have been transported to a hospital. (Paragraph 8);
36. While Moore was in the four way he should have been taken to
a hospital. (Paragraph 8);
37. No reasonable C.O. would have believed after what had
happened in the hallway that Moore would simply be asleep.
(Paragraph 8);
38. The C.O.s should have assumed Moore was unconscious or in
capacitated. (Paragraph 8);
39. Moore never should have been on his back. (Paragraph 8);
40. Layingon ones back while handcuffed is extremely painful, too
painful to sleep and presents a risk of choking by aspiration.
(Paragraph 8);
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41. The nurse should have done a complete examination.
(Paragraph8);
42. C.O.s who do not receive regular refresher training in defensive
tactics can be expected to use excessive force. (Paragraph 9);
43. Use of defensive tactics is a diminishing skill which C.O.s, if not
retrained in regular, will revert to street fighting methods and place
inmates and themselves in dangerous serious bodily injury.
(Paragraph 9);
44. The failure to regularly conduct in-service training is
deliberately indifferent to an inmate’s right to be free of excessive
force. (Paragraph 9);
45. Creed and Hanson were required to know the material aspects of
the contract between RCC and the City of Monroe. (Paragraph 10);
46. The lack of knowledge of the contract reflects deliberate
indifference to how a jail was operated at RCC. (Paragraph 10);
47. LaSalle did not provide any in-service training to the RCC C.O.s
while Rogers was employed at RCC from July2017to April 2018.
(Paragraph 11);
48. LaSalle would not authorize payment to the C.O.s to attend inservice training. (Paragraph 11);
49. Typically, C.O.s from 2000 to the present are taught the PPCT
curriculum in defensive tactics. (Paragraph 11);
50. PPCT requires twenty-four hours of academy instruction and
sixteen hours in-service training, annually. (Paragraph 11);
51. All DOC officers are taught PPCT. (Paragraph 11); and
52. As a BJG auditor, Rogers is familiar with training standards used
in North Louisiana training academies, and based upon his
experience, PPCT is taught. (Paragraph 9).
Plaintiffs respond that all of the above facts or opinions are admissible. They assert that
Items 1-13 are fact-based opinions of Rogers based upon his training, experience, and examination
of the cell and hall video; Items 14 and 17 are a combination of his training coupled with his
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examination of the video; Items 15 and 16 are facts based upon Roger’s training and experience;
Items 18-14 and 27-32 and 35-38 are opinions as well; Item 25 is a fact of training concerning the
use of a stretcher; Items 33 and 34 are a comment on training as to when to inform the nurse about
certain force strikes; Items 39-52 are generally facts based on training; Item No. 41 is an opinion,
as are Items 44 and 46, concerning acts constituting deliberate indifference; AND Items Nos. 44
and 46 are likely opinions which provide a conclusion as to the ultimate issue of deliberate
indifference which are not themselves excluded under FED R. EVID 704, as he provides no opinion
that any constitutional provision is violated or that defendants are at fault.
Plaintiffs further argue that they are offering Rogers’ Declaration to rebut George
Armbruster’s (Defendants’ expert’s) opinions and conclusions. Defendants respond that this last
argument establishes that Plaintiffs’ real goal is to add another expert for the jury to consider
because the Plaintiffs recognize that Sanders’ opinions are not adequate to support their case-inchief. Defendants state, further, that Rogers’ Declaration is offered to directly support Plaintiffs’
case-in-chief, that the training afforded the C.O.s at RCC was inadequate and that the RCC
Defendants used excessive force on Moore, and is, therefore not rebuttal.
Defendants further respond that Rodgers claims to have been employed at RCC from July
20, 2017, until around April 2018, and purports to have knowledge of training and practices at
RCC during that period of time. However, the incident at issue here occurred in October of 2015
and any training would have taken place prior to that date. This shows that, contrary to Plaintiffs’
arguments, Rodgers has no personal knowledge of any facts relevant to this suit and can only be
an “expert” witness.
Citing Wellman v. Evans, 2003-1720 (La. App. 3 Cir. 6/16/04), 876 So. 2d 954, and James
v. Iberia Parish Sheriff’s Office, 2019-286 (La. App. 3 Cir. 12/18/19), 286 So. 3d 629, Defendants
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additionally argue that Rogers’ opinion on what is a good correctional practice, including a
reference to guidelines or policies, is not relevant or admissible evidence to establish a
Constitutional violation, or liability under state law. Defendants argue that any other writing, such
as a contract, policy, guideline or standard can have no role in determining whether there is liability
under federal or state law.
While it is clear that internal policies and advisory national standards are not determinative
of fault and/or the applicable standard of care, the Court believes that such policies and standards
are probative as to the controlling standard of care in this case. See Schurman v. Panola-Harrison
Electrical Coop., Inc., No. 03-1467, 2006 WL 8456468, (W.D. La. June 6, 2006). Therefore,
Rogers’ opinion is not inadmissible on that basis.
Nevertheless, as the Court stated in its Ruling on the first Motion to Strike,
although expert testimony is not objectionable simply “because it embraces an ultimate issue,” an
expert’s opinion on ultimate issues can be excluded if it is otherwise inadmissible under the Federal
Rules of Evidence. FED. R. EVID. 704. When opinion testimony combines law and fact, the
question is “whether the opinion will ‘help the trier of fact to understand the evidence or to
determine a fact in issue.’” 29 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE & PROCEDURE § 6284 (2d ed.) (quoting FED. R. EVID. 702). Expert opinions as to
whether a defendant violated the law are inadmissible. FED. R. EVID. 702; See Goodman v. Harris
Cty., 571 F.3d 388, 399 (5th Cir. 2009).
In Toomer v. Florida Parishes Juvenile Justice Commission, No. 03-0734, 2005
WL5974570 (E.D. La. Mar. 3, 2005), the district judge stated:
The Court finds that [the expert’s] opinion is a mixture of legal
conclusions and cumulative factual assertions that would unduly
infringe upon the fact-finding functions of the jury and, worse, likely
lead to jury confusion. Further, this witness’ opinions, to the extent
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they might have factual support, are nothing more than logical
common-sense conclusions, unnecessary to aid the jury.
Id. at * 1.
Similar issues were decided in N.S. v. City of Alexandria, 919 F. Supp. 2d 773 (W.D. La.
2013), where a motion to strike was filed by the defendants seeking to exclude the opinions of the
plaintiff’s police liability expert. After reviewing the law and the opinions at issue the district court
held:
Dr. Kelly’s opinions, as expressed in his deposition, are
inadmissible based on authority from the United States Fifth Circuit
excluding expert testimony in a § 1983 case consisting of nothing
more than “credentials and a subjective opinion.” (citing
Benavides). Dr. Kelly provides simply his credentials and his
subjective opinion that he would have acted differently than
Fairbanks based on the facts presented. Und er the Fourth
Amendment, an opinion that one would have acted differently does
not negate the officer’s reasonableness at the time of the act.
(citations omitted). Therefore, Dr. Kelly’s opinions about alternative
methods he believes Fairbanks should have used are irrelevant and
inadmissible.
Dr. Kelly’s opinions are also inadmissible to the extent they contain
legal conclusions or factual findings. Expert opinions cannot unduly
infringe on the factfinding functions of the jury and are inadmissible
to the extent that such opinions assert factual findings. (Citations
omitted). Dr. Kelly’s deposition contains nothing more than his legal
conclusions based on factual findings presented to him before and
during the deposition. Any conclusions made by Dr. Kelly cannot
be the subject of expert testimony because these fall within the
province of the fact finder, who is charged with hearing the facts,
weighing the reliability and credibility of witnesses and evidence,
and deciding the outcome of the case at issue.
Id. at 786.
Here, Plaintiffs argue that Rogers’ conclusions would aid a jury and/or the Court to decide
that all of the force used by anyone was wrong. However, Defendants argue that Rogers cannot
see from the video what Runner saw. Defendants contend that Rogers does not consider the threats
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being made by Moore to White or the C.O.s. The threats described by the C.O.s could be construed
as a “pre-assault” indicator. In addition, Defendants assert that Runner interposed himself between
Moore, the other C.O.s, and Moore’s victim, White, who subsequently died from his injuries, to
protect them from Moore. Finally, Defendants assert that Rogers also does not consider the equally
valid interpretation of the video, that the shove from Runner caused Moore to lose his balance,
which served to stop Moore’s impending attack on the C.O.s and/or White.
In considering the pending dispositive motions, the Court will view the video and
determine what is indisputably shown therein. If there are genuine issues of material fact for trial,
a jury will view the video and reach its own conclusions on what is shown. Therefore, the Court
finds that the expert opinions at issue here unduly infringe on the factfinding functions of the jury
and are inadmissible.
Although Rogers’ opinions on whether the officers’ conduct conformed to professional
standards of care is relevant to determining whether the force used was excessive, these opinions
do not show whether a reasonable officer in the same circumstances would have believed that his
or her conduct was reasonable. See, e.g., City & Cty. of San Francisco v. Sheehan, 135 S.Ct. 1765,
1777 (2015) (“[S]o long as a reasonable officer could have believed that his conduct was justified,
a plaintiff cannot avoi[d] summary judgment by simply producing an expert’s report than an
officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even
reckless” (alteration and internal quotation marks omitted).
As indicated above, where the expert opinions at issue combine law and fact, the question
is whether the opinion will help the trier of fact to understand the evidence or to determine a fact
in issue. These expert opinions do not meet that test. Whether Runner’s or Hardwell’s use
of force was excessive or deadly is a legal question that is not proper subject matter
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for expert testimony. To the extent that Rogers offers legal conclusions, the Court will not consider
their expert opinions or reports.
Accordingly, for the above reasons, Defendants’ Motion to Strike Rogers’ Declaration is
GRANTED.
9.
Deposition of Kenny Sanders, Exhibit KS
The Defendants object to the admissibility of the Deposition of Kenny Sanders. This
objection has been addressed by the Court in the Ruling on the first Motion to Strike [Doc. No.
282]. Accordingly, for the same reasons set forth in that Ruling, the Court GRANTS Defendants’
Motion to Strike.
10.
Declaration of Kenny Sanders with attachments dated
April 27, 2020, Exhibit 190
Defendants object to Sanders’ new opinions found in his April 27, 2020 Declaration as
being untimely and in violation of the Court’s Order.
Defendants contend that Sanders’
Declaration contains new opinions and new conclusions not previously disclosed. They also assert
that the new Declaration makes statements that are contradicted by his deposition testimony. They
state the new Declaration is an apparent attempt to supplement his original report and to close the
gaps and failings found in Sanders’ opinions, as exposed in Sanders’ deposition.
Defendants contend that it is apparent that Sanders’ new Declaration is nothing more than
an attempt to skirt the requirement that experts prepare reports by the deadlines set by order of the
Court, which reports must contain their full opinions and the basis for their opinion.
Defendants further argue that Sanders’ new Declaration and all new opinions therein
should be stricken for the reasons set out in their initial Memorandum on Motion to Strike.
Defendants assert that all of Sanders’ opinions, whether found in his deposition, declaration, or
report, should be found to be inadmissible.
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Plaintiffs respond that Sanders’ Declaration contains no new opinions; rather, it clarifies
his prior opinions, and that his Declaration is subject to being stricken only to the extent that it
inserts new opinions that are not mere elaboration or supplementation. See In re Complaint of C.F.
Bean L.L.C., 841 F.3d 365, 371 (5th Cir. 2016). They argue that Sanders’ Declaration merely
explains his opinions in more detail.
More specifically, Plaintiffs assert that Sanders should be allowed to explain that the typical
training used by correctional officers in defensive tactics is PPCT, which requires, as a part of its
curriculum, refresher training annually. Plaintiffs argue that PPCT is a “manufacturer” of training
curriculum and that the PPCT’s requirements apply and lead to the conclusion that the C.O.s at
RCC were improperly trained.
Defendants reply that, whether a “manufacturer” has a line in a manual about training is
not relevant or admissible evidence as to whether the Constitution was violated.
Rule 26(e)(1)(A) allows a party to supplement when it “learns that in some material respect
the disclosure or response is incomplete or incorrect.” “The purpose of rebuttal and supplementary
disclosures is just that—to rebut and to supplement. These disclosures are not intended to provide
an extension of the deadline by which a party must deliver the lion's share of its expert
information.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 571 (5th
Cir. 1996). Further, the rule is not a basis to make “material additions” to an initial report. Harmon
v. Ga. Gulf Lake Charles LLC, 476 Fed. App’x. 31, 38 (5th Cir. 2012) cited with approval in Cole
v. Hunter, 68 F. Supp. 3d 628, 639 (N.D. Tex. 2014) (holding that “[s]upplemental opinions must
not include material changes or corrections to the expert opinions.”)
The Court finds that Plaintiffs have not established that Sanders’ Declaration merely rebuts
and supplements his original opinions and does not make material additions. His Declaration does
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contradict some of his earlier statements. Further, the Court’s Ruling on Defendant’s original
Motion to Strike [Doc. No. 282] was that, to the extent that Sanders unduly infringes on the
factfinding functions of the Court or offers legal conclusions, the Court will not consider his expert
opinions or report. For the same reasons, the Court GRANTS Defendants’ Motion to Strike
Sanders’ Declaration. To the extent that Sanders unduly infringes on the factfinding functions of
the Court or offers legal conclusions, the Court will not consider his Declaration.
III.
CONCLUSION
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART the
pending Motion to Strike [Doc. No. 333].
MONROE, LOUISIANA, this 30th day of October, 2020.
___________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE
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