Pritchard-Sleath v. Sorrell et al

Filing 49

ORDER denying 34 Motion in Limine to exclude testimony of expert Bartos. Signed by Chief Judge Dana L. Christensen on 3/3/2014. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

CV 12-74-H-DLC

ELIZABETH PRITCHARD-SLEATH,
Plaintiff,
vs.

ORDER

RICHARD OPPER, in his official
capacity as director of the Montana
Department of Public Health and Human
Services, KATHLEEN ZEECK, in her
individual capacity, LARRY LEROUX, in
his individual capacity, and the
MONTANA DEPARTMENT OF
PUBLIC HEALTH AND HUMAN
SERVICES,
Defendants.
Defendants Richard Opper, Kathleen Zeeck, Larry LeRoux, and the
Montana Department of Public Health and Human Services (“DPHHS”) move to
exclude the testimony of Plaintiff Elizabeth Pritchard-Sleath’s expert witness,
Richard Bartos. The Court will deny Defendants’ motion.
I.

Factual Background

Plaintiff Elizabeth Pritchard-Sleath was hired as a psychology specialist at
the Montana Developmental Center (“MDC”) in April of 2009. MDC is a state
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operated facility that provides 24-hour care for individuals with developmental
disabilities who also struggle with severe behavioral issues, mental health issues,
and other self-help deficits. Plaintiff’s duties included providing individualized
psychological assessment, diagnoses, and treatment services to clients, including
one-on-one therapy sessions. In July of 2010, Plaintiff made an urgent
recommendation to Defendant Kathy Zeeck, who was the superintendant of MDC
at the time, that one of her clients (Client 1922) receive 1:1 supervision since she
deemed him to be a suicide risk. Zeeck took some action, but did not go as far as
Plaintiff believed was necessary. Plaintiff learned that Zeeck did not follow her
recommendation and in July of 2010, she sent an email to several other DPHHS
employees, including a representative of Disability Rights Montana (“DRM”),
stating that Zeeck’s response was “in strong opposition to [her] professional
clinical judgment.” DRM is a federally mandated organization with the authority to
pursue legal, administrative and other remedies to ensure the protection of MDC
clients. Plaintiff alleges that MDC administrators resented this communication to
DRM, and that it served as the catalyst for Defendants’ “campaign to discredit and
discipline Plaintiff,” and that this “retaliation against Plaintiff for contacts with
DRM ultimately resulted in Plaintiff’s termination by DPHHS.” (Doc. 1 at ¶ 15.)

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During her time at MDC, Plaintiff was disciplined several times, many of
which she claims were in fact retaliation for her contact with DRM. In March of
2010, Plaintiff was counseled by Defendant LeRoux, her immediate supervisor,
about inappropriately blurring the lines between acting as a client’s advocate and
acting as their therapist. LeRoux informally counseled her again in April of 2010
regarding contact with clients during non-work hours. In August of 2010, shortly
after she sent her email about Client1922, Plaintiff was given a written warning for
giving gifts to clients, which is prohibited by MDC policy. During the same month,
Client 1797 reported to staff that Plaintiff had made repeated and unwanted
telephone calls to him over the weekend, and that Plaintiff asked him to run away
from MDC and live with her. Plaintiff was immediately placed on paid
administrative leave while these allegations were investigated, and in November of
2010, the DPHHS issued an administrative decision upholding the suspension.
Finally, at some point during the investigation related to Client 1797, Plaintiff
provided her attorney with a confidential document pertaining to one of her clients.
DPHHS suspended Plaintiff for two additional days as the result of this incident
after denying her grievance.
In March of 2011, MDC was subject to a Centers for Medicare and
Medicaid Services (“CMS”) survey. The survey noted a multitude of deficiencies,

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which resulted in an “immediate jeopardy” designation. Such a designation, if not
remedied, could result in the complete loss of federal funding, which constitutes
approximately 80% of MDC’s total budget. Plaintiff’s behavior and record of
misconduct was one of the reasons for the immediate jeopardy designation. The
CMS team determined that Plaintiff was a risk to clients.
DPHHS dismissed Plaintiff based on the behavior discussed herein, after
providing her a chance to present her side of the story. Plaintiff then filed this
action, bringing claims under § 1983 against Defendant Sorrell as Director of
DPHHS and Defendants Zeeck and LeRoux, and against DPHHS for negligence,
conversion, and violations of Montana’s Wrongful Discharge from Employment
Act (“WDEA”).
Plaintiff has retained Richard Bartos as an expert witness to testify that the
abuse, neglect, and exploitation investigations conducted by MDC did not meet the
standard of care for conducting such investigations. Mr. Bartos was formerly
employed by the Department of Public Health and Human Services (“DPHHS”) as
the Bureau Chief of the Adult Protective Services (“APS”) agency. In the time
since the motion to exclude was filed and fully briefed, the Court granted
Defendants’ motion for partial summary judgment, dismissing the bulk of
Plaintiff’s claims.

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II.

Motion in Limine Standards

Courts have “wide discretion” in considering and ruling on motions in
limine. Trichtler v. Co. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). But a Court
will grant a motion in limine and exclude evidence only if the evidence is
“inadmissible on all potential grounds.” BNSF Ry. v. Quad City Testing
Laboratory, Inc., 2010 WL 4337827 at *1 (D. Mont. 2010) (citations and internal
quotation marks omitted). “Unless evidence meets this high standard, evidentiary
rulings should be deferred until trial so that questions of foundation, relevancy and
potential prejudice may be resolved in proper context.” Id. (citations and internal
quotation marks omitted). “This is because although rulings on motions in limine
may save time, costs, effort and preparation, a court is almost always better
situated during the actual trial to assess the value and utility of evidence.” Id.
III.

Discussion

First, to address the elephant in the room: the Court’s order for summary
judgment has obvious implications for Mr. Bartos’s testimony at trial, although the
Court will not speculate as to what those might be. In ruling on motions in limine,
this Court often defers its rulings until trial because it cannot rule in the abstract,
and will not speculate as to what the contours of a plaintiff’s case or the specifics

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of an expert’s testimony will be at trial. The Court’s entry of partial summary
judgment renders these questions even more mercurial in this case.
This Court has “the inherent power to disqualify expert witnesses to protect
the integrity of the adversary process, protect privileges that otherwise may be
breached, and promote public confidence in the legal system.” Hewlett-Packard
Co. v. EMC Corp., 330 F.Supp.2d 1087, 1092 (N.D. Cal. 2004). Generally, “courts
have declined to use a brightline rule to determine whether an expert should be
disqualified.” Id.
A. Mr. Bartos’s Relationship with Defendant DPHHS
Defendants seek to exclude Mr. Bartos’s testimony on several grounds,
arguing first that he should be excluded because he was employed by Defendant
DPHHS during the events at issue in this case. The first basis for this argument is
the duty of loyalty imposed by Rule 1.9 of the Montana Rules of Professional
Conduct, which sets forth a lawyer’s duty to his former clients:
(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which that person’s interests are materially adverse to the
interests of the former client unless the former client gives informed
consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client:
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(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6
and 1.9(c) that is material to the matter; unless the former client gives
informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall
not thereafter:
(1) use information relating to the representation to the disadvantage of the
former client except as these Rules would permit or require with respect to a
client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules
would permit or require with respect to a client.
This argument is unpersuasive. Although Mr. Bartos practiced law prior to
working as Bureau Chief and drew on his experiences and expertise as an attorney
while serving in that capacity, he was not a DPHHS lawyer and did not “formerly
represent” the Department. Additionally, Mr. Bartos is not representing the
Plaintiff in this action; he is acting as a testifying expert witness. The Court does
not find Defendants’ “consulting expert” argument persuasive; even if it did, the
Model Rules do not require his disqualification. There is no indication that this
litigation involves “the same or substantially related matter” as any specific issue
Mr. Bartos handled while serving as Bureau Chief. The mere fact that he dealt with
investigations similar to those that the MDC conducted regarding Plaintiff is far
too attenuated a connection to constitute “the same or substantially related matter.”

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Defendants also contend that there is a possibility that Mr. Bartos could
testify as to confidential DPHHS information that he was exposed to during his
term of employment. This assertion is wholly unsupported by the facts. The mere
fact that Mr. Bartos was employed by Defendant DPHHS and was privy to
confidential information in his role as APS Bureau Chief does not mean that he
will testify as to any of that information – let alone that he had any specific
information that is relevant to the current litigation, which is based on the
investigation of an employee of an entirely different agency within the DPHHS.
All of the cases that Defendants cite relate to the disqualification of witnesses who
possess, or who legitimately might possess, confidential information relevant to the
pending litigation. This case does not involve the same abuse or neglect
investigations in which Mr. Bartos was involved during his time with APS, and it
is unreasonable to assume that he had any knowledge of confidential information
relevant to the instant case. Finally, as Plaintiff asserts, the standard of care for
conducting abuse and neglect investigations – the subject of Mr. Bartos’s
anticipated testimony – is not confidential information in and of itself.
The Defendants are correct that the Court’s analysis must be context
dependent (Doc. 41 at 10). In this context and at this time, disqualifying Mr. Bartos

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on the basis of his previous relationship with the Defendant DPHHS is
inappropriate.
Generally, this Court is hesitant to completely disqualify an expert unless the
witness does not satisfy a Daubert analysis1, or unless the expert’s testimony
would be cumulative. Instead, the Court prefers to utilize its orders on motions
such as these to articulate the general boundaries it anticipates setting for the
particular expert’s testimony at trial. In this case, the Court will not permit any
testimony related to any confidential information that Mr. Bartos was privy to as
the result of his employment with the DPHHS.
B. Appropriateness of Expert Testimony
Plaintiff argues that Mr. Bartos’s testimony must be excluded – or at least
severely limited – under Rule 702 because it contains inadmissible legal
conclusions, and because it would not be helpful to the jury. The Court will
address each argument in turn.
“[A]n expert witness cannot give an opinion as to her legal conclusion, i.e.,
an opinion on an ultimate issue of law.” Elsayed Mukhtar v. California State Univ.,
Hayward, 299 F.3d 1053, 1068 (9th Cir. 2002) amended sub nom. Mukhtar v.
California State Univ., Hayward, 319 F.3d 1073 (9th Cir. 2003) (emphasis
omitted). An expert may testify that a defendant did not adhere to an industry’s
1

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

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standard practices, but must not be permitted to testify that a defendant violated the
law. See Wood v. Montana Dep’t of Revenue, 2011 WL 4348301 (D. Mont. Sept.
16, 2011) (“Thus, she may testify as to whether the Department deviated from
standard human resources policies and practices in its attempt to comply with the
law, but she cannot testify as to whether the Department in fact, violated the
law.”).
Defendants take issue with many of the statements Mr. Bartos made in his
report and in subsequent depositions, claiming that they constitute legal
conclusions. While the Court agrees that some of his statements do cross the line, it
declines to use them as the basis for excluding Mr. Bartos entirely. At this time, it
also declines to address and rule on each statement to which the Defendants now
object because it is currently unaware of how this testimony will be raised at trial,
if it is even raised at all. This approach is especially appropriate here, given the
dramatically altered landscape of this case following the Court’s recent order
granting partial summary judgment.
The Court will consider any objections to Mr. Bartos’s testimony at trial in
the context of the case Plaintiff choses to present. However, in the interest of
assisting the Plaintiff plot a safe course and minimizing objections at trial, the
Court advises that it will not permit Mr. Bartos to express any conclusions of law,

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not just those immediately placed at issue in Plaintiff’s Amended Complaint.
While Mr. Bartos may “refer to the law in expressing an opinion,” Hangarter v.
Provident Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004), he may go
no further. Defendants raise valid objections as to several of the statements
proffered by Mr. Bartos in his pretrial materials, and Plaintiffs would be well
advised to focus his testimony in this area on the Department’s policies and the
general standards related to the type of investigation at issue.
Next, Defendants argue that Mr. Bartos’s testimony must be excluded
because it is comprised largely of basic conclusions that the jury is capable of
reaching without expert assistance. Defendants anchor this argument in Federal
Rule of Evidence 702(a), which states that expert witness testimony is admissible
if it will “help the trier of fact to understand the evidence or to determine a fact in
issue.” Predictably, and for the reasons articulated above, the Court will not
exclude Mr. Bartos’s testimony in its entirety on this basis, and will wait until the
trial to rule on specific objections. However, the Court will once again offer its
general opinion as to Defendants’ objections, which are not without merit –
especially those regarding inconsistencies, contradictions, and credibility. On the
other hand, the Court does not view the specific techniques, standards, and
resulting conclusions associated with investigating allegations of abuse and neglect

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of persons with developmental disabilities as matters that are within scope of the
average juror’s knowledge or understanding.
For the reasons established herein,
IT IS ORDERED that Defendants’ motion in limine to exclude testimony of
expert Richard Bartos (Doc. 34) is DENIED.
Dated this 3rd day of March, 2014.

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