Shaidnagle et al v. Adams County, Mississippi et al

Filing 243

ORDER denying 142 Motion to Strike ; denying 144 Motion in Limine; denying 183 Motion to Strike ; denying 184 Motion to Strike ; denying 197 Motion to Review of Magistrate Judge Order; denying 201 Motion to Review of Magistrate Judge Order; denying 202 Motion to Review of Magistrate Judge Order. Signed by Honorable David C. Bramlette, III on January 6, 2015. (AA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JUMEL H. SHAIDNAGLE, et al.
VS.

PLAINTIFFS
CIVIL ACTION NO: 5:13-cv-112-DCB-JCG

ADAMS COUNTY, MISSISSIPPI, et al.

DEFENDANTS

ORDER OVERRULING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER,
DENYING MOTIONS TO STRIKE, AND DENYING MOTION IN LIMINE
This matter is before the Court on Defendant’s, Laura Smith,
Motion to Strike Plaintiff’s Expert [docket entry no. 142], Motion
in limine re: Order to Hold [docket entry no. 144], Motion to
Strike Expert [docket entry no. 183], Motion to Strike Expert
[docket entry no. 184], and Motion for Review of Magistrate Judge’s
Order [docket entry no. 197], and Plaintiff’s, Jumel Shaidnagle,
Motions for Review of Magistrate Judge’s Order [docket entry nos.
201 and 202]. Having reviewed the motions and responses, other
orders in this case, applicable statutory and case law, and being
otherwise fully informed in the premises, the Court finds as
follows:
I. Factual and Procedural Background
This case arises from the in-custody suicide of Nicholas
Pastor on July 28, 2012. Pastor was being held in the Adams County
Jail (“the Jail”) on an Order to Hold signed by the Special Master
for the Adams County Chancery Court. Pastor hanged himself in his
1

cell. Shaidnagle, individually, on behalf of Pastor’s wrongful
death beneficiaries, and as administratrix of Pastor’s estate
(collectively, “Shaidnagle”) filed suit on July 29, 2013,

In its

current posture, this case has a pretrial conference on January 12,
2015, and is set for trial in February. Discovery has closed, and
experts have been designated. There remains only an intense, and at
times frenetic, pretrial motion contest between the parties.
On September 30, 2014, Defendant Laura Smith filed her first
motion to strike one of Shaidnagle’s experts. See Mot. Strike Pl.’s
Experts (“Strike 1"), ECF No. 110. On October 1, 2014, Smith filed
her second motion to strike. See Mot. Strike Pl.’s Expert (“Strike
2"), ECF No. 142. In that same filing, Smith also moved to limit
Shaidnagle’s use of the Order to Hold. See Mot. in limine, ECF No.
144. On that same day, Shaidnagle filed a motion to compel, and
three days later, amended that motion. See Mot. Compel, ECF No.
146; Am. Mot. Compel, ECF No. 154. On November 14, 2014, Smith
filed two more motions to strike, to prevent this Court from
considering certain expert testimony in ruling on her motion for
summary judgment currently pending. See Mot. Strike Resp. (“Strike
3"), ECF No. 183; Mot. Strike Resp. (“Strike 4"), ECF No. 184.
Defendants

Adams

County,

Mississippi,

Sheriff

Charles

Mayfield, James Allred, and Charles Harrigill have joined all of
Smith’s above motions. See Joinder, ECF No. 114 (joining Strike 1);
Joinder, ECF No. 149 (joining Strike 2); Joinder, ECF No. 150

2

(joining motion in limine); Joinder, ECF No. 188 (joining Strike
3); Joinder, ECF No. 189 (joining Strike 4). Defendants Ronald
Dunmore and Gary Conn also joined two of Smith’s motions. See
Joinder, ECF No. 113 (joining Strike 1); Joinder, ECF No. 191
(joining Strike 4).
On December 2, 2014, Magistrate Judge John C. Gargiulo entered
orders granting in part and denying in part Smith’s first motion to
strike and denying Shaidnagle’s motion and amended motion to
compel. See Order, ECF No. 194 (granting in part and denying in
part Strike 1); Order, ECF No. 195 (denying motion and amended
motion to compel).
On

December

16,

2014,

both

Shaidnagle

and

Smith

filed

objections to Judge Gargiulo’s order denying the motion and amended
motion to compel. See Def.’s Mot. Review Mag. Judge Order re 195
(“Review 1"), ECF No. 197; Pl.’s Mot. Review Mag. Judge Order re
195 (“Review 3"), ECF No. 202. Adams County, Mississippi, joined in
Smith’s objection. Joinder, ECF No. 199. Shaidnagle also objected
to Judge Gargiulo’s order striking her rebuttal expert. Pl.’s Mot.
Review Mag. Judge Order re 194 (“Review 2"), ECF No. 201.
II. Analysis
Because the Court relies infra on Judge Gargiulo’s orders, it
will first rule on the objections to them.
A. Objections to Magistrate’s Orders
Both Smith and Shaidnagle have raised their objections through

3

Local Uniform Civil Rule 72(a) that permits a party to object to
any ruling made by a magistrate judge within fourteen days. Both
Smith and Shaidnagle timely filed their objections.
A magistrate judge is empowered “to hear and determine any
pretrial matter pending before the court” with some exceptions not
relevant here. 28 U.S.C. § 636(b)(1)(A) (2009). The district court
“may reconsider any pretrial matter” decided by a magistrate judge
“where it has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.” Id.; see also Fed. R. Civ.
P. 72(a).
The standard of review applied to Smith’s and Shaidnagle’s
objections is “clearly erroneous or contrary to law.”1 A finding is

1

Although Smith requests that the Court apply a de novo
review to her objection, that standard applies only to proposed
findings of fact and recommendations properly objected to. See 28
U.S.C. § 636(b)(1)(*) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”). Other courts state the choice of standard of review in
terms of dispositive or nondispositive rulings because, without
consent under 28 U.S.C. Section 636(c), magistrate judges can
only make recommendations as to dispositive motions. See DiPilato
v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (“The
standard of review for a magistrate judge’s order depends on
whether the order is dispositive. When reviewing a dispositive
order, a judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. When reviewing a
pretrial order regarding non-dispositive issues, a district court
judge may only reconsider the order where it has been shown that
the magistrate judge’s order is clearly erroneous or contrary to
law.” (internal citations and quotations marks omitted)). Because
Judge Gargiulo’s orders do not make any recommendation or
proposed findings as to a dispositive motion but rather rule in
toto on nondispositive discovery issues, the Court is bound to
4

clearly erroneous

when

the

district

court

is

“left

with the

definite and firm conviction that a mistake has been committed”
after reviewing “the entire evidence” of the magistrate judge’s
order.

See

Easley

v.

Cromartie,

532

U.S.

234,

242

(2001)

(quotations omitted). “The ‘clearly erroneous’ standard applies to
the factual components of the magistrate judge’s decision.” Smith
v. Smith, 154 F.R.D. 661, 665 (N.D. Tex. 1994) (citing RTC v.
Sands, 151 F.R.D. 616, 619 (N.D. Tex. 1993)). This standard is
“extremely deferential.” Bailey Metals, LLC v. Superior Boat Works,
No. 4:08cv153, 2011 WL 320805, at *1 (N.D. Miss. Jan. 31, 2011)
(quoting Reko v. Creative Promotions, Inc., 70 F. Supp. 2d 1005,
1007 (D. Minn. 1999)).
A

finding

“is

contrary

to

law

if

the

magistrate

judge

misinterpreted or misapplied applicable law.” Martinez v. Porta,
No. Civ.A. 4:03cv915y, 2006 WL 3289187, at *2 (N.D. Tex. Nov. 1,
2006) (citing Marks v. Struble, 347 F. Supp. 2d 136, 149 (D.N.J.
2004)). The magistrate judge must have “erred in some respect in
his legal conclusions. The magistrate judge’s legal conclusions are
freely reviewable by the district judge, who applies a de novo
standard.” Smith, 154 F.R.D. at 665.
The district court will not reverse the magistrate judge
merely because it “would have decided the [motion] differently.”
Easley, 532 U.S. at 242. For a party seeking review of a magistrate

follow the clearly erroneous or contrary to law standard.
5

judge’s order to prevail, “she must show, not that the magistrate
judge could have exercised his discretion and ruled in her favor,
but rather that she is entitled to a ruling in her favor as a
matter of law.” Barnett v. Tree House Café, Inc., No. 5:05cv195,
2006 WL 3083757, at *3 (S.D. Miss. Oct. 27, 2006).
1. Defendant’s Objection
Smith objects to and appeals “any evidentiary rulings, if any,
regarding the admissibility at trial of any post mortem changes to
Pastor’s booking sheet” in Judge Gargiulo’s order on the motion and
amended motion to compel. Review 1 ¶5. Smith explicitly “does not
appeal . . . the denial of [Shaidnagle]’s Motions to Compel. . . .”
Mem. Supp. p. 3, ECF No. 198. Smith quotes two paragraphs in their
entirety as objectionable.2 They are reproduced here:
In this case, Plaintiff alleges that Pastor was a
known suicide risk and that Defendants should have placed
Pastor on “Suicide Watch” while he was detained in the
Adams County jail. Plaintiff also alleges that Pastor’s
in-custody suicide was caused by Defendants’ improper
failure to place Pastor on “Suicide Watch.” It is now
undisputed that Pastor’s booking information in the
jail’s computer system was changed after Pastor’s suicide
to show that he was placed on “Suicide Watch” and that he
was recognized to have a “Mental Illness” when booked
into the jail. A factfinder could determine that such
circumstantial evidence is relevant to the “knowledge”
and/or “subjective deliberate indifference” of Defendants

2

In the Memorandum of Support, Smith also quoted the
language of footnote one of Judge Gargiulo’s order. However,
because the note does not originate in the paragraphs quoted (but
rather the preceding paragraph), the Court finds that its
inclusion in the objection was accidental. Further, the language
of the note relates to the constitutional rights of pre-trial
detainees and is irrelevant to Smith’s objection.
6

in light of Plaintiff’s allegations. Farmer v. Brennan,
511 U.S. 825, 842-43, 114 S.Ct. 1970, 1981-82 (1994)
(“Whether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from
circumstantial evidence, and a factfinder may conclude
that a prison official knew of a substantial risk from
the very fact that the risk was obvious.”).
Adams County has also conceded that the post-suicide
changes to Pastor’s booking information in the jail’s
computer system cannot be explained. Presumably, the
motive for the post-suicide changes made to Pastor’s
booking information also cannot be explained. The absence
of any explanation for the post-suicide changes could
also be relevant under the circumstances. Id. at n. 8
(“While the obviousness of a risk is not conclusive and
a prison official may show that the obvious escaped him,
see infra, at 1982, he would not escape liability if the
evidence showed that he merely refused to verify
underlying facts that he strongly suspected to be true,
or declined to confirm inferences of risk that he
strongly suspected to exist . . . .”). Accordingly, the
denial of additional electronic discovery is not
prejudicial to Plaintiff in light of the other undisputed
facts in this case.
Order p. 6-7, ECF No. 195; Mem. Supp. p. 3-4, ECF No. 198. In
particular, Smith objects to the language: “A factfinder could
determine that such circumstantial evidence is relevant to the
‘knowledge’

and/or

‘subjective

deliberate

indifference’

of

Defendants in light of Plaintiff’s allegations.” See Review 1 ¶ 5
(quoting this language); Mem. Supp. p. 6, ECF No. 198 (quoting this
language).
The Court finds that the language of Judge Gargiulo’s order,
couched in hypothetical diction such as “could” and “may,” did not
make any evidentiary rulings that would preclude a later motion in
limine, which Smith has hinted she may file. Smith concedes even in

7

her objection that the language is “potentially dicta” and that the
motion is one that a magistrate judge generally may hear and
decide. See Mem. Supp. p. 6, ECF No. 198. The Court finds that
Judge Gargiulo’s order is not clearly erroneous or contrary to law.
Therefore, the Court will overrule Smith’s objection.
2. Plaintiff’s First Objection
Shaidnagle objects to Judge Gargiulo’s order excluding her
expert witness Kathryn Burns. Judge Gargiulo struck Shaidnagle’s
designation of Burns as untimely. Order p. 11, ECF No. 194.
Striking an untimely expert designation is a sanction permitted
under Federal Rule of Civil Procedure 37(c). Judge Gargiulo gave
three reasons for his ruling: (1) Burns was not a rebuttal expert
necessary to refute a new issue raised by a defendant expert, (2)
even if defendants did raise a new issue, Burns is not necessary
because another plaintiff expert is qualified in the same field,
and (3) the Sierra Club factors3 weighed in the defendants’ favor.
Shaidnagle only objects to the first two of Judge Gargiulo’s
reasons. See Review 2 p. 1-2. The Court reads both of these

3

The Fifth Circuit has laid out four factors to determine
whether a district court abused its discretion in striking an
expert designation as a discovery sanction. Those factors are:
“(1) the importance of the witnesses’ testimony; (2) the
prejudice to the opposing party of allowing the witnesses to
testify; (3) the possibility of curing such prejudice by granting
a continuance; and (4) the explanation, if any, for the party’s
failure to comply with the discovery order.” Sierra Club, Lone
Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 572 (5th
Cir. 1996).
8

objections as objections to the findings of fact made in Judge
Gargiulo’s order, so the clear error standard applies.
First, Shaidnagle argues that Smith’s designation of Mark Webb
“first raised the issue of whether - from a medical, psychiatric
perspective - Nicholas Pastor was a suicide risk and should have
been placed on suicide watch.” Review 2 p. 6. Judge Gargiulo found
that Shaidnagle’s “primary liability expert, Hayes, raised this
issue in his written report.” Order p. 8, ECF No. 194. Shaidnagle
concedes that “a jail suicide case would almost automatically
invoke the issue of whether the detainee was a suicide risk” but
argues for a distinction in this case: the Order to Hold. Review 2
p. 6. Shaidnagle argues that the Order to Hold definitively states
that Pastor was a suicide risk and that Webb is “attempting to ‘go
behind’ the Order to Hold by attacking its legal validity with
medical opinion testimony.” Review 2 p. 8. Second, Shaidnagle
argues that Hayes and Burns have different fields of expertise so
that only Burns can be qualified as a rebuttal witness to Webb.
“Dr. Webb is a psychiatrist. So is Dr. Burns. Lindsay Hayes is
not.” Review 2 p. 8. Judge Gargiulo found that both Hayes and Burns
were “designated as experts in the field of ‘suicide prevention
within jails.’” Order p. 9, ECF No. 194.
Although the Court recognizes the importance of the Order to
Hold, whether it irrefutably marks Pastor as a suicide risk at his
intake is an issue for the factfinder. This finding comports with

9

the Court’s ruling infra on Smith’s motion in limine regarding the
Order to Hold. Additionally, the Court finds that Hayes and Burns
were qualified in the same field: suicide prevention in jails. The
expert designations list the same field for both experts. Although
Hayes and Burns have different experiences that qualify them as
experts, Federal Rule of Evidence (“FRE”) 702 anticipates that
witnesses may gain expertise in the same field through different
qualifications. The fact that Burns is a medical doctor and Hayes
is not does not preclude their qualification in the same field.
Furthermore, the designations reveal that they reviewed the same
materials to prepare their reports, including medical records.
Because the Court finds some support in the record that whether
Pastor was a suicide risk was not a new issue requiring rebuttal
and that Hayes and Burns were qualified in the same field, Judge
Gargiulo’s rulings are not clearly erroneous.
3. Plaintiff’s Second Objection
Shaidnagle objects to language in Judge Gargiulo’s order
denying her motion and amended motion to compel. She “does not
request that the disposition of the Order itself be reversed.”
Review 3 p. 4. The specific language at issue is: “It therefore
remains undisputed that Defendants classified and incarcerated
Pastor as a non-suicidal detainee at all times prior to his suicide
on July 28, 2012.” See Order p. 5, ECF No. 195; Review 3 p. 2.
Shaidnagle requests that “this factual finding be narrowed [in]

10

scope” so that it reads: “It therefore remains undisputed that,
according to the Adams County computer system, Mr. Pastor was not
affirmatively classified as a suicidal detainee prior to his
suicide on July 28, 2012.” Review 3 p. 2, 4 (emphasis in original).
Shaidnagle

acknowledges

that

her

objection

seems

to

be

“splitting hairs” and admits that she so moves “out of an abundance
of caution.” Review 3 p. 3, 4. The Court will overrule the
objection, finding that Judge Gargiulo did not rule in a way that
is clearly erroneous or contrary to law. Similar to the Court’s
holding as to Smith’s objection, see supra II. A. 1., the Court
finds that Judge Gargiulo did not rule on this evidence. Further,
the language of his order should not be read to bind the parties to
a particular interpretation of this potential piece of evidence.
B. Motions to Strike Experts
1. First Motion to Strike Expert Lindsay Hayes
In her second motion to strike, Smith argues that Shaidnagle’s
expert Lindsay Hayes should be excluded from testifying at trial
because his testimony is “neither relevant nor reliable” under FRE
702. Strike 2 ¶ 2.
FRE

702

provides

that

an

expert

may

be

qualified

by

“knowledge, skill, experience, training, or education” and can give
opinion testimony 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;
11

(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.
Fed. R. Evid. 702. Expert testimony “serves to inform the jury
about affairs not within the understanding of the average man.”
U.S. v. Moore, 997 F.2d 55, 57 (5th Cir. 1993). “Whether a witness
is

qualified

to

testify

as

an

expert

is

left

to

the

sound

discretion of the trial judge, who is in the best position to
determine

both the

claimed

expertise

of

the

witness

and

the

helpfulness of his testimony.” Sullivan v. Rowan Cos., 952 F.2d
141, 144 (5th Cir. 1992). FRE 702 “assigns to the district judge a
gatekeeping role to ensure that [expert] testimony is both reliable
and relevant.” Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 668
(5th Cir. 1999) (citing Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 597 (1993)).
Hayes is a “nationally recognized . . . expert in the field of
suicide

prevention

within

jails,

prisons[,]

and

juvenile

facilities.” Notice Service Designation Experts Ex. 1 (“Hayes
Designation”) p. 1, ECF No. 40-1. The designation goes on to list
Hayes’s qualifications including: conducting multiple national
studies with the National Institute of Corrections and the Justice
Department, degrees in sociology and administration of justice,
more than a hundred publication credits, and participation in
fifteen other cases in the last four years. There is little doubt
about Hayes’s expertise in the field in general; Smith, however,
12

questions the relevancy and reliability of the testimony Hayes
offers as it relates to the facts of this case. We live in an age
of post-Daubert sensibility where the emphasis of inquiry rests on
the reliability of expert opinion rather than the qualifications of
the expert. See Watkins v. Telsmith, Inc., 121 F.3d 984, 992 (5th
Cir. 1997). The proponent of expert testimony is not required to
prove

that

the

testimony

is

correct

but

rather

prove

by

a

preponderance of the evidence that the testimony is reliable. Moore
v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en
banc).

The

thrust

of

Smith’s

argument

concerns

whatever

unfamiliarity Hayes may have with suicide prevention policy in
Mississippi. First, she argues that Hayes is unfamiliar with the
particular requirements in Mississippi for an Order to Hold.
Second, she argues that Hayes compares the Jail’s policy to an
inapplicable national standard instead of the appropriate local
standard, with which Hayes is unfamiliar. The Court rejects both of
these arguments for the reasons below.
The Supreme Court in Daubert laid out several factors that a
trial court must weigh in determining the reliability of potential
expert testimony. These factors are: (1) “whether a theory or
technique can be (and has been) tested;” (2) “whether it has been
subjected to peer review and publication;” (3) “whether in respect
to a particular technique, there is a high known or potential rate
of

error

and

whether

there

are

13

standards

controlling

the

technique’s operation;” and (4) “whether the theory or technique
enjoys general acceptance within a relevant scientific community.”
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-50 (1999)
(quoting Daubert, 509 U.S. at 592-94) (internal quotation marks
omitted). The district court must weigh these factors alongside
those from FRE 702. See Guy v. Crown Equip. Corp., 394 F.3d 320,
325

(5th

Cir.

2004)

(“Kumho

Tire

clarified

that

the

[FRE]

702/Daubert analysis applies to all proposed expert testimony. . .
.” (emphasis in original)). Although the Daubert factors are not
helpful here, the Court must still determine whether Hayes’s
testimony

meets the

four

requirements

of FRE

702.

These

are

summarized as: (a) helpfulness, (b) sufficient basis, (c) reliable
method, and (d) reliable application.
a. Helpfulness
Hayes proposes to testify as to the meaning of the Order to
Hold and the standard that should be applied to judge the Jail’s
suicide prevention policy. His specialized knowledge as to the
prevention of in-custody suicide will likely be helpful to the
factfinder to understand the facts of the case.
b. Sufficient Basis
Hayes

formed

his

opinions

after

review

of

the

amended

complaint, the defendants’ answers, various discovery responses and
interrogatories, Pastor’s medical records from the Natchez Medical
Center and University of Mississippi Medical Center, the Order to

14

Hold, Pastor’s jail records, the incident reports generated by the
Jail related to Pastor’s suicide, the Mississippi Highway Patrol’s
Bureau of Investigation report of Pastor’s suicide, the autopsy
report, the policies and procedures of the Adam’s County Sheriff’s
Department, the surveillance video of Pastor’s booking into the
jail, post mortem photographs of Pastor, recorded audio from
telephone calls Pastor place while at the Jail, and the deposition
transcripts

from

the

defendants

as

well

as

the

accompanying

exhibits. Hayes Designation p. 12-13. The Court finds that these
facts provide a sufficient basis for his proposed testimony.
c. Reliable Method
In evaluating the method Hayes used to reach his opinions, the
inapplicability of the Daubert factors becomes obvious. Although
Hayes’s

opinions

were

not

reached

through

application

of

a

scientific process, a court may, where appropriate, “consider
factors

other

than

those

listed

in

Daubert

to

evaluate

the

reliability of the expert’s testimony.” Pipitone v. Biomatrix,
Inc., 288 F.3d 239, 247 (5th Cir. 2002). Further, nothing in FRE
702 or Daubert precludes “that an expert might draw a conclusion
from a set of observations based on extensive and specialized
experience.” Id. (quoting Kumho Tire, 526 U.S. at 156).

The Court

“must

“personal

probe

into

the

reliability”

of

Hayes’s

observations, professional experience, education[,] and training”
to determine whether his testimony should be admitted. Id. Apart

15

from the general qualifications listed above, it appears from his
curriculum vitae that Hayes has some familiarity with suicide
prevention

in

jails

in

Mississippi

already.

He

lists

two

publications related to Mississippi4 and states that he provided
services5

related to suicide prevention in Mississippi. Further,

the Court finds that Hayes is familiar with the national standards
he proposes to compare to the Jail’s policies.6 The Supreme Court
has held that national standards are helpful, but not conclusive,
as guidelines to determine the relevant standard of care. See
Rhodes v. Chapman, 452 U.S. 337, 348 n.13 (1981) (quoting Bell v.
Wolfish, 441 U.S. 520, 543-44 n.27 (1979)) (“[S]uch opinions may be
helpful and relevant with respect to some questions, but ‘they
simply do not establish the constitutional minima; rather, they

4

“Jail Suicide in Mississippi” published in 1994 in Crisis:
The Journal of Crisis Intervention and Suicide Prevention and
“U.S. Justice Department’s Investigation of Jail Suicides in
Mississippi: A Status Report” published in 1994 in Jail
Suicide/Mental Health Update. Hayes Designation p. 43, 45. The
Court has not read these publications to determine how much
relevant knowledge Hayes gained from their publication, but it
does show that he is not entirely unfamiliar with in-custody
suicide in this state.
5

The services include “staff training, program
assessment/development and litigation consultation.” Hayes
Designation p. 48. More detail about the services Hayes provided
may be “furnished upon request.” Hayes Designation p. 6. Like his
publications, the Court is unaware of the extent that providing
these services prepared Hayes for the present litigation, but it
shows some familiarity.
6

According to his curriculum vitae, Hayes “has conducted
the only five national studies of jail, prison, and juvenile
suicide.” Hayes Designation p. 30.
16

establish goals recommended by the organization in question.’”).
Combined with the sufficient basis found above, the Court finds
that Hayes applied a reliable method to his interpretation of the
Order to Hold and the comparison of the Jail’s suicide prevention
policies.
d. Reliable Application
The Court finds that Hayes reliably applied his experience and
expertise to offer an interpretation of the meaning of the Order to
Hold and the comparison to national standards. Smith argues that
the application of a national standard makes Hayes’s testimony
irrelevant and cites to another case in this district for support.
See Mem. Supp. P. 5, ECF No. 143 (citing Berhow v. The Peoples
Bank, No. 1:04cv511, 2006 WL 839529 (S.D. Miss. Mar. 28, 2006). In
Berhow, the court excluded expert testimony about the appropriate
standard of care because the standard was provided by Mississippi
statute. Berhow, 2006 WL 839529 at *4-5. In this case, however, the
standard of care has not been provided by statute. Smith argues
that the standard of care is supplied by the policies adopted by
Sheriff Mayfield, but she cites to no authority for this point. The
Seventh Circuit has held that even where no inmates had previously
committed suicide while in custody showed only that the jail had
been lucky, not that the policy met the appropriate standard,
deliberate indifference. Woodward v. Corr. Med. Servs. of Ill.,
Inc., 368 F.3d 917, 929 (7th Cir. 2004). Regardless of whether the

17

Jail adopted policies differing from a national standard, they must
still not be deliberately indifferent.
Smith’s

arguments

to

strike

Hayes’s

testimony

seem

more

directed at “his conclusion than his methodology. That is fine and
is a matter of cross-examination — not exclusion.” Guideone Ins.
Co. v. Bridges, No. 2:06cv229, 2008 WL 5532023, at *4 (S.D. Miss.
Sep. 23, 2008). Therefore, the Court will deny Smith’s motion to
strike Hayes.
2. Motion to Strike Expert Ronald Dunmore
In her third motion to strike, Smith moves to strike the
expert opinion of Ronald Dunmore in Shaidnagle’s response to her
motion for summary judgment. Strike 3 ¶ 8. Smith acknowledges the
substantial similarity between this motion and a prior motion made
before Judge Gargiulo. See Strike 3 ¶ 9. The Court will deny this
motion to strike for the same reasons identified by Judge Gargiulo
in his order of December 12, 2014, and summarized briefly below.
Smith did not move for a review of this order, and the Court
does not interpret this motion as an appeal. First, this motion was
filed before Judge Gargiulo entered his relevant order. Second, the
relief requested is slightly different. The motion before Judge
Gargiulo would have excluded Dunmore’s expert opinions at trial;
here, Smith

only

seeks to

exclude

his opinions

from

summary

judgment consideration. But even if the Court were to measure Judge
Gargiulo’s order against the “clearly erroneous or contrary to law”

18

standard, it would not be found wanting.
Judge Gargiulo denied the motion to strike because he found
that the designation of Dunmore was timely under Federal Rule of
Civil Procedure 26 and it would be inappropriate under Federal Rule
of Civil Procedure 37(c). Under Rule 26, Judge Gargiulo found that
Shaidnagle had timely supplemented her expert designation after
Dunmore’s deposition and that the entirety of Dunmore’s expert
opinion came from that deposition, where, as a party, he was
represented by counsel. Under Rule 37(c), Judge Gargiulo found that
the Sierra Club factors weighed in Shaidnagle’s favor. As to the
first factor, he found that Dunmore’s opinions would help resolve
disputed facts at trial. As to the second factor, he found that the
defendants were not prejudiced because they had full possession of
Dunmore’s opinion from the deposition. As to the third factor, he
found a continuance was unwarranted because defendants had ample
time to explore the opinions Dunmore offered before discovery
closed. As to the fourth factor, he found that the timing of the
supplemental designation was reasonable.
Therefore, the Court will deny this motion.
3. Second Motion to Strike Expert Lindsay Hayes
In her fourth motion to strike, Smith argues that Hayes’s
supplemental expert report “is not competent summary judgment
evidence, as it is not a [sworn] affidavit or written declaration
made under penalty of perjury.” Strike 4 ¶ 3. “It is a settled rule

19

in this circuit that an unsworn affidavit is incompetent to raise
a fact issue precluding summary judgment.” Nissho-Iwai Am. Corp. v.
Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). A statutory exception
for this exists where the statement is made “under penalty of
perjury and verified as true and correct.” Id. (citing 28 U.S.C. §
1746) (internal quotation marks omitted).
Shaidnagle concedes the deficiency in Hayes’s supplemental
report but argues that it can be cured by the filing of a sworn
declaration averring the statements made in the report. Resp. p. 12, ECF No. 192 (citing Straus v. DVC Worldwide, Inc., 484 F. Supp.
2d 620, 633-34 (S.D. Tex 2007)). The Straus court relies on similar
holdings in the Second and Seventh Circuits and district courts in
Iowa and Indiana. Straus, 484 F. Supp. 2d at 634. Another court in
this circuit, taking up the holding from Straus, found that it was
not binding on it and neither were the precedents it cited.
Highland Capital Mgmt. L.P. v. Bank of Am., Nat’l Ass’n, No.
3:10cv1632, 2013 WL 4502789, at *6 & n.3 (N.D. Tex. Aug. 23, 2013)
(Lindsay,

J.).

Judge

Lindsay

agreed

that

allowing

a

sworn

declaration to cure this deficiency was within its discretion but
that it was not obligated to do so. Id., at *6.
The Court concurs in Judge Lindsay’s holding that allowing
this cure is discretionary rather than mandatory, but the Court
finds that exercising this discretion is appropriate here. In that
case, Judge Lindsay found that the declaration “state[d] only that

20

[the expert reports in the declaration] are ‘true and correct
copies.’ Thus, unlike the statements in her declaration, the
statements in [her] expert reports are unsworn and were not made
under penalty of perjury.” Id. Here, this is not the case. In his
declaration, Hayes states that “[a] full account of [his] review,
assessment,

and

opinions

in

this

case is

contained

in [his]

reports” attached as exhibits to his declaration. Resp. Ex. 1
(“Hayes Aff.”) ¶ 5, ECF No. 192-1. Hayes then goes on to reiterate
in his declaration the conclusions he reached in this case. Hayes
Aff. ¶ 5. Thus these conclusions have been sworn to. Further,
Shaidnagle filed this same supplemental expert report for the first
time

on

September

24,

2014.

See

Notice

Service

Supplemental

Designation Experts, ECF No. 102. This was almost two months before
she included it as an exhibit to her response to Smith’s motion for
summary judgment and almost a week before the motion for summary
judgment itself was filed. Smith filed this motion on November 14,
2014. There was opportunity for Smith to object to this report
before

it

was

offered

into

evidence

for

summary

judgment

consideration.
Based on the above reasoning, the Court will exercise its
discretion to allow Shaidnagle to cure the deficiency in her
supplemental expert report and deny Smith’s motion to strike.
C. Motion in limine to Limit the Order to Hold
Lastly, the Court considers the alternative motion made by

21

Smith in her motion to strike discussed supra II.B.1. Smith moves
the Court to “preclude Plaintiff, her counsel, her witnesses and/or
her experts from arguing, testifying or opining at the trial of
this cause that solely based on the language of the Order to Hold,
Pastor was a suicide risk.” Mot. in limine ¶ 3, ECF No. 144. Smith
cites no authority7 to support this motion but argues that this
characterization of the Order to Hold would be more “prejudicial
than probative.” Mem. Supp. p. 6, ECF No. 145. The Court finds that
Smith requests the Court to invoke its FRE 403 authority to
exclude, or in this case limit, relevant evidence “if its probative
value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” See
Fed. R. Evid. 403. The Court finds that several of these dangers
are not present and the remainder do not outweigh the probative
value of the Order to Hold. What the Order to Hold establishes is
a question for the factfinder to resolve, and it is for the parties
to argue convincingly for their interpretation of the facts.
Therefore, the Court will deny the motion in limine. It is apparent
from the briefing related to these several motions that the parties

7

Smith cites to one case from this district to argue that
res judicata and collateral estoppel do not apply to her
regarding the chancery court proceedings that resulted in the
Order to Hold. Shaidnagle does not address this line of
reasoning, and the Court finds that it does not bear on the
instant motion.
22

intend to file more motions in limine, and the Court will not deny
Smith an opportunity to renew this motion if new arguments can be
made.

At

this

time

and

in

advance

of

summary

judgment

consideration, the Court is unpersuaded.
III. Conclusion
The Court has combined in this order several motions from both
the

defendants

and

the

plaintiff

in

an

effort

to

clear

the

underbrush from the docket. The Court denies the three motions for
review of Magistrate Judge Gargiulo’s orders because they are
devoid of clear error or rulings contrary to law. The Court denies
the three motions to strike experts. As to the motion to strike
Lindsay Hayes entirely, the Court finds his testimony to have
sufficient indicia of reliability. As to the motion to strike
Ronald Dunmore, the Court finds that he was timely designated,
concurring with a substantially similar order from Magistrate Judge
Gargiulo. As to the motion to strike the supplemental report of
Lindsay Hayes, the Court finds that the deficiency had been cured.
As to the motion in limine regarding the Order to Hold, the Court
denies it because it finds the arguments that the plaintiff will
put forward are not more prejudicial than probative.
IV. Order
IT IS HEREBY ORDERED that defendant’s Motion for Review of
Magistrate Judge Order [docket entry no. 197] is DENIED.
FURTHER

ORDERED

that

plaintiff’s

23

Motion

for

Review

of

Magistrate Judge Order [docket entry no. 201] is DENIED.
FURTHER

ORDERED

that

plaintiff’s

Motion

for

Review

of

Magistrate Judge Order [docket entry no. 202] is DENIED.
FURTHER ORDERED that defendant’s Motion to Strike Plaintiff’s
Expert Lindsay Hayes [docket entry no. 142] is DENIED.
FURTHER ORDERED that defendant’s Motion to Strike Opinions of
Ronald Dunmore and Exhibit 174-9 [docket entry no. 183] is DENIED.
FURTHER ORDERED that defendant’s Motion to Strike Opinions of
Lindsay Hayes and Exhibit 174-10 [docket entry no. 184] is DENIED.
FURTHER ORDERED that defendant’s Motion in limine [docket
entry no. 144] is DENIED.

SO ORDERED this the 6th day of January 2015.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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