H. et al v. St. Louis County, Missouri et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs' motion to strike the affidavits of defendants Wendy Magnoli, Lauren Abate and Herbert Bernsen and witness Thelma Hall-Gordon [Doc. # 159 ] is denied. Signed by District Judge Carol E. Jackson on 11/21/2016. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
A.H., et al.,
ST. LOUIS COUNTY, MISSOURI, et al.,
Case No. 4:14-CV-2069 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion to strike affidavits
submitted in support of defendants’ motion for summary judgment.
have responded in opposition and the issues are fully briefed.
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 against defendants
St. Louis County, Missouri, Dr. Wendy Magnoli, Officer Lauren Abate, and Herbert
Bernsen, for deliberate indifference to Jereme Hartwig’s mental health care needs,
in violation of the Fourteenth Amendment. Plaintiffs also assert a state law claim of
On April 22, 2016, defendants filed a motion for summary
judgment with a memorandum in support and a statement of uncontroverted
material facts consisting of 164 numbered paragraphs with supporting exhibits, in
compliance with Local Rule 4.01(E). The exhibits filed in support included the
affidavits of Magnoli [Doc. #113-9], Abate [Doc. #113-1], Bernsen [Doc. #113-3],
and Hall-Gordon [Doc. #113-5].
I. Legal Standard
As a general principle, an affidavit or declaration used to support or oppose a
motion for summary judgment must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4). In addressing
a motion for summary judgment, a court is generally required to consider an
otherwise admissible affidavit, unless that affidavit contradicts previous deposition
testimony. Popoalii v. Corr. Med. Servs., 512 F.3d 488, 498 (8th Cir.2008). The
court must look to whether the affidavit of an already deposed person merely
restates, elaborates on, or contradicts the previously taken deposition. Id. If the
affidavit merely restates or elaborates on previously given deposition testimony,
the court should consider it. Id. However, if it contradicts a previously given
deposition, it will only be admitted “when the prior deposition testimony shows
confusion, and the subsequent affidavit helps explain the contradiction.” Id.
Affidavits are permitted that seek to clarify previously unclear and ambiguous
deposition testimony and place it in a context evident from the deposition
See Taylor v. Cottrell, Inc., 795 F.3d 813, 818–19 (8th Cir.2015)
(denying a motion to strike an affidavit when a witness used an affidavit to
elaborate and explain the circumstances of her deposition testimony). The Eighth
Circuit has looked to whether each statement in the affidavit could stand side-byside with the deposition's statements without them being inconsistent with one
another to determine the affidavit’s admissibility in a motion for summary
judgment. City of St. Joseph, Missouri v. Southwestern Bell Telephone, 439 F.3d
368, 475 (8th Cir.2006).
The plaintiffs assert that the affidavits contradict previous deposition
testimony and medical records, and are merely tailored to support the defendants’
motion for summary judgment. Plaintiffs identify a number of statements that they
claim are contradictory to statements made in depositions or medical records.
A. Abate Affidavit
Lauren Abate was a correctional officer at the St. Louis County Jail. At her
deposition on April 1, 2016, and in an affidavit signed on April 18, 2016, she
offered testimony regarding her role in the death of Mr. Hartwig and her
understanding of the suicide policies and procedures put forth by the St. Louis
County Jail. A side-by-side comparison of the statements in Abate’s affidavit that
plaintiffs have highlighted and her deposition testimony reveals no contradictions.
Instead, the Court finds that the statements in the affidavit are no more than an
expansion or elaboration of testimony Abate gave in her deposition. Because there
is no contradiction, there is no ground for striking Abate’s affidavit.
B. Bernsen Affidavit
Herbert Bernsen was the Director of the St. Louis County Department of
Justice Services. At his deposition on March 28, 2016, and in an affidavit signed on
April 22, 2016, he offered testimony regarding the jail’s practices regarding the
mental health of inmates. In his deposition, Bernsen noted that he communicated
with the mental health team, reviewed pertinent incidents and took their
All of this is echoed in Bernsen’s affidavit. Bernsen’s statement
that under his administration there was a mental health team does not contradict
his deposition testimony that the mental health team was under the Department of
Health, as both statements can be true.
C. Hall-Gordon Affidavit
Thelma Hall-Gordon was a clinical licensed social worker employed by the St.
Louis County Corrections Medicine Department of Health. At her deposition on
March 21, 2016, and in an affidavit signed on April 21, 2016, she offered testimony
regarding her session with Jereme Hartwig. Plaintiffs argue that Hall-Gordon’s
affidavit contradicts her previous entries in Mr. Hartwig’s medical chart.
after comparing the affidavit to the entries in the medical chart the Court finds no
contradiction. Instead, the statements in the affidavit serve to clarify Hall-Gordon’s
rationale for the actions she took with respect to Mr. Hartwig.
affidavit is not a verbatim recitation of the medical record entries, it is nonetheless
consistent with them.
D. Magnoli Affidavit
Dr. Wendy Magnoli was the psychologist who performed the suicide
assessment on Mr. Hartwig.
Plaintiffs contend that Magnoli’s affidavit contradicts
her deposition testimony and/or entries she made in Mr. Hartwig’s medical record.
For example, plaintiffs point to the fact that the medical record states that
Magnoli met with Mr. Hartwig on January 29, 2013 to determine his readiness for
discharge but there is no specific mention of this in her affidavit. Instead, in her
affidavit Magnoli states that she saw Mr. Hartwig on January 29, 2013, “to assess
his suicide risk status, and to determine the most appropriate placement and risk
status based on his clinical presentation and risk factors at that time.” When the
affidavit and medical entry are compared, one can only conclude that plaintiffs are
While there are statements in the affidavit that are phrased differently from
comparable statements in the medical record and in Magnoli’s deposition, these
differences are not equivalent to contradictions.
The Court has compared the
statements in Magnoli’s affidavit to the entries she made in the medical record and
her deposition testimony and finds no contradiction. The statements in the affidavit
explain or elaborate on Magnoli’s earlier statements, but are not in conflict nor
inconsistent with them.
While the affidavits provide additional detail to the defendants’ answers given
in their depositions or to the entries made in the medical record, it does not
necessarily follow that the affidavits are contradictory. Having carefully reviewed
the contested statements and testimony, the Court finds no justification for striking
IT IS HEREBY ORDERED that plaintiffs’ motion to strike the affidavits of
defendants Wendy Magnoli, Lauren Abate and Herbert Bernsen and witness Thelma
Hall-Gordon [Doc. #159] is denied.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 21st day of November, 2016.
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