Cox v. Callaway County, Missouri, et al

Filing 184

ORDER entered by Judge Nanette K. Laughrey. Plaintiff's motion to exclude Defendants' expert, Doc. 149 , is granted in part and denied in part, and Defendants' motion to exclude Plaintiff's expert, Doc. 154 , is granted in part and denied in part. Signed on 4/2/2020 by District Judge Nanette K. Laughrey. (Finkelstein, Netanel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
CASSANDRA COX,
Plaintiff,
v.
CALLAWAY COUNTY, MISSOURI, et
al.,
Defendants.

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Case No. 2:18-cv-04045-NKL

ORDER
Pending before the Court are Plaintiff Cassandra Cox’s Motion to Exclude Certain
Opinions of Dr. Conrad Balcer, Doc. 149, and Defendants’ Motion to Exclude Testimony of Dr.
Joel Blackburn, Doc. 154. For the following reasons, Plaintiff’s motion to exclude Defendants’
expert’s opinions, Doc. 149, is granted in part and denied in part, and Defendants’ motion to
exclude Plaintiff’s expert’s opinions, Doc. 154, is granted in part and denied in part.
I.

Background
Plaintiff Cassandra Cox filed suit against defendants Callaway County, Missouri; the

Callaway County Sheriff’s Department; and various employees of the Callaway County Sheriff’s
Department in their individual and official capacities. Doc. 132 (First Amended Complaint). The
lawsuit arises out of Cox’s arrest by the Fulton Police Department for suspected possession and
use of illegal drugs including methamphetamines, and her subsequent transfer to the Callaway
County Jail. On February 28, 2016, while in the custody of Defendants, Cox required emergency
medical assistance. Cox alleges that she suffered from a seizure and heart attack which was caused
because the Defendants ignored her serious health condition, resulting in severe and permanent

damage to her heart and brain. Plaintiff seeks to present the expert opinion of Dr. Joel Blackburn
and Defendants seek to present the expert opinions of Dr. Conrad Balcer. Each has moved to strike
the testimony of their opponent’s expert.
II.

Discussion
Federal trial judges have “broad discretion” in making decisions about the admissibility of

expert testimony. Bradshaw v. FFE Transp. Servs., Inc., 715 F.3d 1104, 1107 (8th Cir. 2013).
Under Federal Rule of Evidence 702 and the guidance set forth in Daubert, expert testimony
should be liberally admitted. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th Cir.
2014) (citing U.S. v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (holding that doubts about
usefulness of expert testimony are resolved in favor of admissibility)); Robinson v. GEICO Gen.
Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (holding that expert testimony should be admitted if
it “advances the trier of fact’s understanding to any degree”); Lauzon v. Senco Prods., Inc., 270
F.3d 681, 686 (8th Cir. 2001) (Rule 702 “clearly is one of admissibility rather than exclusion”).
“As long as the expert’s . . . testimony rests upon ‘good grounds, based on what is known’ it should
be tested by the adversary process with competing expert testimony and cross-examination, rather
than excluded by the court at the outset.” Id. (citing Daubert, 509 U.S. at 590, 596). Exclusion of
expert opinion is proper “only if it is so fundamentally unsupported that it can offer no assistance
to the jury.” Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997).
Even so, pursuant to Daubert, the Court’s role as “gatekeeper” in determining the
admissibility of expert testimony requires the Court to conduct “a preliminary assessment of
whether the reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93. “The main purpose of Daubert

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exclusion is to prevent juries from being swayed by dubious scientific testimony.” In re Zurn Pex
Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). This question of whether “an
expert’s testimony both rests on a reliable foundation and is relevant to the task at hand” is known
as the “reliability and relevancy” test. Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir.
2012) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)).
When making the reliability and relevancy determinations, a court may consider: (1)
“whether the theory or technique can be or has been tested”; (2) “whether the theory or technique
has been subjected to peer review or publication”; (3) “whether the theory or technique has a
known or potential error rate and standards controlling the technique’s operation”; and (4)
“whether the theory or technique is generally accepted in the scientific community.” Russell, 702
F.3d at 456 (citing Daubert, 509 U.S. at 592–94). The Daubert standard is “flexible” and the above
factors are guidelines rather than “a definitive checklist.” Jaurequi v. Carter Manufacturing
Company, Inc., 173 F.3d 1076, 1082 (8th Cir. 1999). The expert’s testimony must at the very least
satisfy “the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field,” but “whether Daubert’s specific factors are, or are not, reasonable measures of
reliability in a particular case is a matter that the law grants the trial judge broad latitude to
determine.” Kumho Tire, 526 U.S. at 151, 153. The party seeking to admit expert testimony has
the burden of establishing the admissibility of their experts’ testimony by a preponderance of the
evidence. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (citing Daubert, 509
U.S. at 592).
A. Plaintiff’s Motion to Exclude Dr. Conrad Balcer
Dr. Conrad Balcer is a licensed cardiologist with over thirty years of medical experience.
See Doc. 150-2 (Dr. Balcer’s C.V.). Plaintiff seeks to exclude certain opinions of Dr. Balcer,

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generally described as opinions related to “Fit for Confinement” examinations and specifically,
the standard of care for “Fit for Confinement” examinations, the appropriateness of the
correctional officers and Callaway County Jail’s response to Cox’s condition while she was in the
custody there, and what in fact her condition was during that time.
Plaintiff argues that Dr. Balcer has not reviewed the necessary evidence nor does he have
the relevant qualifications such as education or experience in training correctional officers,
providing care to inmates, or in performing Fit for Confinement examinations. Defendants have
stated that Dr. Balcer “does not attempt to offer opinions regarding the actions of the Callaway
County Jail employees,” but rather he “limits his opinion to medical issues for which he is a trained
expert.” Doc. 163, at 1, 3.
The nebulous nature of Plaintiff’s arguments requires the Court to look at the specific
opinions identified by Plaintiff rather than all opinions that might relate to the conduct of the
Callaway County defendants. The Court turns first to Dr. Balcer’s statement that, “[g]iven this
patient’s age and lack of complaint, I would be less likely to believe a ‘Fit for Confinement’
examination was required.” Pl.’s Ex. 12-1, at 2. Dr. Balcer’s opinion about how Cox would likely
have appeared to the staff at the Callaway County jail is based on Cox’s medical records and Dr.
Balcer’s expertise as a doctor. While Dr. Balcer’s has no experience with how correctional officers
should respond, his opinion of how a medical expert would evaluate the condition of Cox is
relevant and potentially helpful to a jury. However, a correctional officer knows the risks of being
incarcerated and Dr. Balcer does not. Therefore, the Court will permit Dr. Balcer to testify whether
he, as a medical profession confronted with these symptoms, would recommend a medical
examination. If a doctor would not seek an exam, a correctional officer is less likely to have
understood the seriousness of Cox’s medical condition. But the Court will not permit Dr. Balcer

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to testify that a “Fit for Confinement” examination was needed. That specific examination requires
some knowledge about the unique risks of prison life which Dr. Balcer does not have.
Plaintiff also takes issue with Dr. Balcer’s statement that “[m]y opinion regarding Ms.
Cox’s medical condition . . . is that on February 26, 2016, she was arrested and, based upon her
jail intake form, was given an opportunity to request medical care and did not avail herself of this.”
Pl.’s Ex. 12-1, at 5. Again, Dr. Balcer can properly opine about how Cox would likely have
appeared when she came to the Calloway County jail, and the nature of her medical events while
she was there. However, he also seeks to testify that Cox was given an opportunity to request
medical care and she did not avail herself of medical care. The latter “opinion”, regardless of how
it is characterized, is unlikely to be helpful to the jury. While experts can normally rely on their
own interpretation of the facts, if those facts are crucial and the expert does not explain how he
decided to adopt those facts, the opinion is more likely to mislead the jury than to be helpful. Clark
v. Takata Corp., 192 F.3. 750 (7th Cir. 1999). Second, Dr. Balcer is no better qualified to decide
this issue than is the jury. Assuming that the basis for his conclusion is that a Calloway County
employee asked Cox if she wanted medical care and she was nonresponsive, there is nothing about
his conclusion that is based on his medical expertise. As such, this opinion is not helpful to the
jury and is not admissible.
Plaintiff also argues that Dr. Balcer has neither the qualifications nor did he review the
necessary evidence to offer an opinion regarding the “standard of care” for a “Fit for Confinement”
examination. Plaintiff takes particular issue with Dr. Balcer’s use of a Google and literature search
in supporting his opinion. Dr. Balcer need not have reviewed all the evidence in this case, it is
enough that his opinion is based on his expertise and would be helpful to the jury. Dr. Balcer did
not appear to rest his opinion on the standard of care for “Fit for Confinement Examinations”

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solely on a Google search, and he explicitly stated that, in addition to his online literature search,
his opinion was based on the fact that “[i]n [his] experience and observation, there is no standard
of care for a ‘Fit for Confinement Examination.’” Pl.’s Ex. 12-1, at 1. An expert opinion should
not be discredited because an expert decides to provide additional support beyond her experience
and observation by also conducting an online review of the literature in the field. Further,
Plaintiff’s own expert appears to agree with Dr. Balcer on this point. As such, Dr. Balcer’s opinion
on the standard of care is admissible.
Lastly, Plaintiff asserts that Dr. Balcer’s opinion on Plaintiff’s medical condition from
when she was first arrested on February 26, 2016 to when she required emergency assistance on
February 28, 2016 is unreliable. Plaintiff contends that Dr. Balcer’s failure to review all of the
evidence—including the depositions of the correctional offers or documents from the Callaway
County Jail—leaves Dr. Balcer with insufficient factual support for his opinion and therefore
undermines his ability to criticize Plaintiff’s expert’s opinion. As explained above, Dr. Balcer need
not have reviewed all of the evidence to have an admissible opinion so long as it would be helpful
to a jury. Dr. Balcer relied on his expertise and a review of the medical records to reach his
conclusion about her likely condition and symptoms during the relevant time period, and his
opinion to that extent is admissible.
B. Defendants’ Motion to Exclude Dr. Joel Blackburn
Dr. Joel Blackburn is a board-certified doctor with more than twenty years of experience
including experience in correctional medicine. Plaintiff seeks to admit the opinion of Dr.
Blackburn regarding Plaintiff’s medical issues, the alleged policy and procedural violations by
Defendants in their care and treatment of Plaintiff, and Defendants’ alleged deliberate indifference
to Plaintiff’s medical needs. Defendants seek to exclude the opinions of Dr. Blackburn for being

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beyond his scope of expertise, for lacking evidentiary foundation, and for being of no help to the
jury.
Defendants argue that Dr. Blackburn lacks the requisite expertise to state admissible
opinions regarding whether the actions of Callaway County employees violated policies,
constituted deliberate indifference, or qualified as a breach of a ministerial duty. As to opinions on
purported violations of Callaway County’s policies, Defendants assert that Dr. Blackburn’s
opinion on whether any given policy was violated does not qualify as a medical opinion, and is
merely his personal interpretation based on a plain reading of the meaning of each policy. Allowing
the opinion of an expert is appropriate when it relates to “issues that are beyond the ken of people
of ordinary experience.” United States v. Clapp, 46 F.3d 795, 802 (8th Cir. 1995) (quoting United
States v. French, 12 F.3d 114, 116 (8th Cir.1993)). However, “[w]here the subject matter is within
the knowledge or experience of laymen, expert testimony is superfluous.” Id.
In addition to his general medical experience, Dr. Blackburn has specialized knowledge in
the field of correctional medicine. Dr. Blackburn served as Medical Director for Boone County
Jail for over ten years, and in this role established protocols, policies, and procedures for the
medical care of inmate patients. Pl.’s Ex. 12-5, Pl’s Exhibit 12-4, at 3. In Dr. Blackburn’s opinion,
the alleged policy and procedure violations were possible because many of Callaway County Jail’s
employees were insufficiently trained in understanding these policies. There is evidence that some
employees did not fully understand these policies, and it is likely a jury would face similar
challenges when interpreting these policies. See, e.g., Ripsch Dep., Pl.’s Ex. 13-5, 86; Shoemaker
Dep., Pl.’s Ex. 13-3, 63–71; McCown Dep., Pl.’s Ex. 13-4, 100–102. An informed opinion based
on specialized experience with the internal medical policies of a jail would be helpful for
explaining the intended meanings and requirements of the policies in question to a jury. As Dr.

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Blackburn’s testimony has “a reliable basis in [his] knowledge and experience of [the relevant]
discipline,” this opinion is admissible. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).
Next, as to Dr. Blackburn’s opinions regarding whether the action of employees constituted
deliberate indifference or ministerial duty, Defendants assert that Dr. Blackburn lacks the requisite
experience and education to offer an opinion on these matters and that an opinion on these matters
would be inadmissible legal conclusions. Generally, “questions of law are the subject of the court’s
instructions and not the subject of expert testimony.” United States v. Klaphake, 64 F.3d 435, 438
(8th Cir. 1995). Plaintiff cites to Helfin v. Stewart County, Tennessee as evidence of at least one
instance where an expert was allowed to testify about whether conduct was deliberately indifferent.
Heflin v. Stewart Cty., Tenn., 958 F.2d 709, 715 (6th Cir. 1992). Defendants cite instead to Berry
and Woods as examples where testimony using the legal term deliberate indifference was excluded.
Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994); Woods v. Lecureux, 110 F.3d 1215 (6th Cir.
1997) Taken together, “[a]lthough Heflin indicates that district courts can exercise some discretion
in determining whether the proffered testimony is helpful to the jury, Berry teaches that a district
court abuses its discretion when it allows a witness to define legal terms, especially terms that
carry a considerable amount of legal baggage.” Woods, 110 F.3d at 1220. Unfortunately, the
dividing line between “legal baggage” and helpful opinions is not always clear.
In the Eighth Circuit, expert testimony containing a legal conclusion is generally not
admissible. Peters v. Woodbury Cty. Iowa, 979 F. Supp. 2d 901, 922 (N.D. Iowa 2013).
Specifically, “deliberate indifference” is not the kind of “commonly used” language or medical
terminology that might be helpful to a jury. Cf. U.S. v. Two Eagle, 318 F.3d 785, 792–93 (8th Cir.
2003) (finding commonly used language permissible). However, Dr. Blackburn’s testimony need
not be excluded in its entirety. For example, he can opine on whether the Callaway County Jail

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employees showed a lack of concern for plaintiff’s medical needs or whether those employee’s
duties and actions were mandated by the policies in place or not. But Dr. Blackburn may not opine
on whether Defendants were deliberately indifferent or breached a ministerial duty.
Defendants also argue that Dr. Blackburn’s opinion on causation lacks evidentiary support
as it incorrectly assumes that Plaintiff suffered from tachycardia throughout the time she was in
the custody of Callaway County Jail, despite the fact that evidence suggests she was not suffering
from tachycardia when first transferred to Callaway County Jail, and Plaintiff therefore cannot
assert that her obvious medical condition should have been noticed and treated earlier. See PL.’s
Ex. 13-2, at 113 (statement by Dr. Blackburn that tachycardia is determined by having a heart rate
over 100 beats per minute); Pl.’s Ex. 10-2, at 1 (noting Plaintiff’s heart rate as being 82, 84, and
84 at three time points on the morning she was transferred to Callaway County Jail). But Dr.
Blackburn’s opinion does not rest solely on whether Plaintiff presented with tachycardia the
morning of her arrest, nor have Defendants shown that the evidence can only support a finding
that there were no symptoms at any point for which Plaintiff should have received medical care.
Dr. Blackburn’s opinion states that he believes Plaintiff was suffering from tachycardia and other
noticeable symptoms at the time she was transferred to Callaway County Jail as well as throughout
her time under Defendants supervision, that Defendants should have noticed these symptoms, and
that earlier medical attention could have prevented Plaintiff’s injuries. Pl.’s Ex. 13-2, at 127–128,
178; Pl.’s Ex. 12-4, at 11, 20–22. Though Defendants may disagree with Plaintiff and Dr.
Blackburn’s interpretation of the facts, Dr. Blackburn explains the basis of his opinion and his
explanation would be helpful to the jury because of his medical expertise, even if one aspect of his
opinion is disputed. Defendants can cross examine Dr. Blackburn at trial about this alleged
deficiency, but Dr. Blackburn’s opinion on causation is admissible.

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Defendants additionally argue that Dr. Blackburn’s opinions on implicit or subconscious
employee bias should be excluded as irrelevant.

Defendants contend that implicit bias is

subconscious and this is a case about deliberate indifference which requires a conscious disregard
for a known medical need. Plaintiff responds that Dr. Blackburn’s opinions regarding implicit
bias are relevant to her failure to train claim because according to Dr. Blackburn, implicit bias is
known to cause worse medical care and Defendants’ failure to address this known danger is
evidence of deliberate indifference to the health of their inmates.
“To be individually liable for failing to train [] subordinates, [an official] must have
received notice of a pattern of unconstitutional acts committed by subordinates, demonstrated
deliberate indifference to or tacit authorization of the offensive acts, and failed to take sufficient
remedial action—and the failure must have proximately caused [plaintiff's] injury.” Audio
Odyssey, Ltd. v. Brenton First Nat'l Bank, 245 F.3d 721, 742 (8th Cir. 2001) (quotation marks and
citation omitted). Plaintiff effectively claims, without legal authority, that Defendants’ conscious
choice not to provide implicit bias training is a constitutional violation when medical needs are not
met by the Calloway County employees. While such training is a laudable practice, the Court
cannot say that the failure to provide implicit bias training is evidence of deliberate indifference
on this record. There is no evidence that has been presented to the Court that subordinates in the
Calloway County system were denying medical care to inmates because their implicit bias was
causing them to do so, much less that Calloway County was aware of specific instances when this
was happening. To suggest that every injury that an inmate sustains as a result of not getting
appropriate medical care is a constitutional violation because no implicit bias training was
provided would upend the deliberate indifference standard firmly established by the Supreme
Court.

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Dr. Blackman’s opinion on implicit bias is inadmissible as it is more likely to confuse
rather than help the jury.
III.

Conclusion
For the reasons discussed above, Plaintiff’s motion to exclude Defendants’ expert, Doc.

149, is granted in part and denied in part, and Defendants’ motion to exclude Plaintiff’s expert,
Doc. 154, is granted in part and denied in part.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: April 2, 2020
Jefferson City, Missouri

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