Rosenthal v. Missouri Department of Corrections et al

Filing 116

ORDER granting 80 defendants' motion to exclude Dr. Thomas Horejes as an expert witness. Signed on 12/4/14 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
KEVIN ROSENTHAL
Plaintiff,
v.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
DEONTA DUDLEY,
Intervenor.

)
)
)
) Case No. 2:13-cv-04150
)
)
)
)
)
)
)

ORDER
Pending before the Court is Defendants’ Motion to Exclude Dr. Thomas Horejes as
an Expert Witness (Doc. No. 80).
I.

Background
Plaintiff filed the pending action on June 11, 2013. Plaintiff and other putative class

members are deaf or hard-of-hearing inmates in the custody of the Missouri Department
of Corrections (MDOC). Defendants are (1) MDOC, (2) George Lombardi (Director,
MDOC), (3) Ed Davis (Superintendent, Ozark Correctional Center), and James Hurley
(Superintendent, Northeast Correctional Center) and (5) various John Doe defendants.
Plaintiff and intervenor, Deonta Dudley, seek declaratory and injunctive relief, as well as
damages, on their own behalf for alleged discrimination by Defendants against deaf and
hard-of-hearing inmates in the custody of MDOC. First Amended Complaint, Doc. No. 60,
pp. 6-9. They also sought declaratory and injunctive relief on behalf of a putative class;
however, this Court recently denied plaintiffs’ motion for class certification. See Doc. No.
107.

Defendants move for an order excluding the testimony of Dr. Thomas P. Horejes.
Dr. Horejes is an individual who has been deaf since birth (Doc. No. 80, Ex. B, at 1). He
is employed at the following: 1) as the “Executive Director of a 501(c)3 non-profit charity
in Saint Louis, Missouri whose philosophy is to provide services for deaf/hard-of-hearing,
hearing individuals, and the community as a whole to ensure effective communication
and cultural awareness. This purpose is accomplished through a meaningful unity of
community outreach, training, education, advocacy, media, visual arts, and interpreting,”
and 2) as “Assistant Professor of Sociology and Criminology at Gallaudet University
where [he has] taught courses that range from Introduction to the Criminal Justice
System, Fundamentals of Criminal Justice, Inequality, and similar topics. Gallaudet
University is the world's only liberal arts university serving primarily deaf and hard of
hearing students.” Doc. No. 80, Ex. B, at 1.
Dr. Horejes’ written report includes the following information:

*

ASL is the language of majority of deaf people in the United States (Doc.
No. 80, Ex. B., at 2)

*

English and ASL are “two entirely separate whole languages,” and ASL is
the first language of some deaf people (Id. at 2)

*

Historically, those “who are hearing often determine the accessibility and
communication needs for deaf individuals. In the spirit of providing
effective and transparent communication, it is the rule of thumb to first ask
the deaf individual what would be considered effective communication
through auxiliary aids and services. (Id. at 3)

*

In some situations, a deaf individual may not want to have an ASL
interpreter present (Id. at 3)

*

Use of lip-reading, gestures, or written English to communicate with deaf
persons have significant limitations (Id. at 5).
2

*

*

“There is a common assumption that all deaf people are homogeneous and
that all deaf people know ASL. This is false.” Id. at 7.

*

The two widely used forms of communication for deaf individuals are
teletypewriters (TTYs) and video phones. Ex. B at 6. Some deaf people
prefer TTYs, while others prefer videophones. Id. at 6. Dr. Horejes also
explains the technology behind these forms of communication. Id.

*

With respect to incarcerated individuals, “If a deaf inmate is in a situation
where it requires high level of interactivity, use of complex exchange of
words, and/or a situation that is severe. . . then it may be possible that the
only effective communication is an ASL interpreter.” Id. at 7-8.

*

“If hearing people are privileged to take rehabilitative classes, religious
services, educational classes, and similar services of that nature, then deaf
people must be extended the same level of equal access whether it is the
use of an interpreter or a real-tine [sic] captioning service which is the
instant translation of the spoken word into English text using a stenotype
machine, notebook computer and realtime software.” Id. at 8.

*

II.

Many prisons require deaf people to wear safety vests when outside, so
they can be identified by guards if they fail to cooperate with verbal/auditory
instructions. (Id. at 6).

With respect to the specific allegations in plaintiff’s complaint, Dr. Horejes
concludes that MDOC does not have adequate policies/procedures in place
for deaf individuals, and MDOC “needs to revisit their policy and procedures
when it comes to the ADA and to ensure provision of auxiliary aids/services
to arrive at effective communication.” Doc. No. 80, Ex. C, at 3. Dr.
Horejes bases this conclusion on his review of grievances filed by plaintiff
and intervenor, along with definitions given in websites and in the ADA.

Standard
To be admissible, expert testimony must be both relevant to a material issue and

reliable. Hale Cnty. A & M Transp., LLC v. City of Kansas City, Mo., 4:12-CV-00265-DGK,
2014 WL 462432 (W.D. Mo. Feb. 5, 2014) (citing Margolies v. McCleary, Inc., 447 F.3d
1115, 1120 (8th Cir. 2006)). Doubts about whether an expert’s testimony will be useful
should generally be resolved in favor of admissibility. Larabee v. MM & L Int'l Corp., 896
F.2d 1112, 1116 n.6 (8th Cir. 1990). Additionally, the party moving for the admission of
3

such testimony must satisfy four requirements: (1) the expert’s technical, scientific, or
other specialized knowledge will help the finder of fact to determine a fact in issue or to
understand the evidence; (2) the testimony is based on sufficient data or facts; (3) the
testimony is the product of reliable methods and principles; and (4) the expert has reliably
applied such methods and principles to the methods of the facts of the case. Fed.R.Evid.
702.
III.

Analysis
Upon consideration of the admissibility of Dr. Horejes’ testimony, the Court finds

that defendants’ motion to exclude should be granted. In particular, the Court finds that
Dr. Horejes’ report as to the specific claims of the plaintiff and intervenor relies on
definitions supplied by the ADA and various websites, which amount to little more than the
assertion of legal conclusions, which are not admissible as expert testimony. See In re:
Acceptance Ins. Companies Securities Litig., 423 F.3d 899, 905 (8th Cir. 2005).
Additionally, this Court believes that the finder of fact will be able to decide the ultimate
issues without expert testimony. See Rottlund Company, Inc., v. Pinnacle Corp., 452
F.3d 726, 732 (8th Cir. 2006). Therefore, for the foregoing reasons, Defendants’ Motion
to Exclude Dr. Thomas Horejes as an Expert Witness (Doc. No. 80) is GRANTED.
IT IS SO ORDERED.

/s/ Fernando J. Gaitan, Jr.
Fernando J. Gaitan, Jr.
United States District Judge

Dated: December 4, 2014
Kansas City, Missouri

4