Sabata et al v. Nebraska Department of Correctional Services et al
Filing
389
ORDER - Defendants' Motion to Strike Expert Declarations (Filing No. 351 ) is denied. Ordered by Magistrate Judge Michael D. Nelson. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HANNAH SABATA, et al, on behalf of
themselves and all others similarly situated,
4:17CV3107
Plaintiffs,
vs.
ORDER
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES, et al,
Defendants.
This matter is before the Court on the Defendants’ Motion to Strike Expert Declarations
(Filing No. 351). Defendants move to strike the entire expert declarations of Margo Schlanger
(Filing No. 249-50), Eldon Vail (Filing No. 249-47), Craig Haney (Filing No. 249-42), and Pablo
Stewart (Filing No. 249-38), and portions of the expert declarations of Jay Shulman (Filing No.
249-53) and Marc Stern (Filing No. 249-58) offered by Plaintiffs in support of their Motion for
Class Certification (Filing No. 247). Defendants argue the above expert testimony should be
stricken because it does not meet the requirements of Rule 702 of the Federal Rules of Evidence
and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), nor do the opinions aid the
Court’s determination of the requirements of Rule 23 of the Federal Rules of Civil Procedure. For
the following reasons, the Court will deny the motion.
BACKGROUND
Plaintiffs, inmates within the custody and control of the NDCS, filed this proposed class
action against Defendants NDCS and its administrators and medical staff, asserting violations of
the plaintiffs’ civil and constitutional rights. Plaintiffs’ claims arise out of their allegations that
Nebraska state prisons are “overcrowded, under-resourced, and understaffed, and that prisoners
are “consistently deprived of adequate health care, including medical, dental, and mental health
care, and denied accommodations for their disabilities.” (Filing No. 1 at p. 4). Plaintiffs have now
moved for class certification and request that the Court certify an “NDCS Class” comprised of “all
persons who are now, or will in the future, be subjected to the health care (including medical,
mental health and dental care) policies and practices of NDCS.”
The plaintiffs also seek
certification of two subclasses, an “Isolation Subclass” comprised of “all NDCS prisoners who are
now, or will in the future be, subject to conditions of confinement that provide limited contact with
other prisoners, strictly controlled movement while out of cell, and out-of-cell time of less than
twenty-four hours per week,” and a “Disability Subclass” comprised of “all persons with
disabilities who are now, or will in the future be, confined at any NDCS facility.” (Filing No.
247).
Plaintiffs offered several expert declarations in support of their motion for class
certification. Defendants seek to strike the entirety of four expert declarations, and portions of two
additional declarations, described below:
• Margo Schlanger, a Professor of Law at the University of Michigan, retained to provide
her opinion on the Nebraska state prison system’s “disability-related policies, practices,
and procedures.” In Professor Schlanger’s 53-page declaration, she describes her
qualifications, experience, and factual basis for her opinions, and states her partial and
preliminary opinion that “NDCS systematically fails to provide prisoners with
disabilities with equal access to NDCS services, programs, and activities, and fails to
communicate effectively with prisoners with communications-related disabilities.”
(Filing No. 249-50). Plaintiffs use Professor Schlanger’s opinion to establish NDCS’
“complete control” over disability-related accommodations (Filing No. 250 at pp. 27-32)
and the Nebraska Board of Parole’s “centralized system” for administering parole
reviews (Filing No. 250 at pp. 32-33), and to establish numerosity (Filing No. 250 at p.
37).
• Eldon Vail, former correctional administrator, retained to offer his opinions “on the
effects of overcrowding and understaffing in the [NDCS], and on whether or not the
overcrowding and understaffing at NDCS impact and/or create dangerous conditions for
their prisoner population.” Vail describes his qualifications, experience, and data relied
on to provide his opinion that the NDSC’s “policies and practices create a substantial risk
of harm to all NDCS prisoners in the form of exposure to dangerous segregation
(restrictive housing) units,” which risk of harm is “common to all NDCS prisoners, and
can be remedied by system-wide changes in the way NDCS manages and staffs its
institutions, and in the way it uses segregation (restrictive housing).” (Filing No. 24947). Plaintiffs use Vail’s declaration to establish commonality. (Filing No. 250 at p. 41).
• Craig Haney, M.A., Ph.D, Professor of Psychology and the UC Presidential Chair at the
University of California, Santa Cruz, retained to provide opinions on the “negative
psychological consequences of solitary or isolated confinement” (i.e., “restrictive
housing”), whether/how those consequences are exacerbated for prisoners suffering from
serious mental illness, and the extent to which NDSC prisoners are placed at risk of
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psychological harm from solitary-type confinement. Haney describes his qualifications,
experience, and facts relied on to reach his opinions, including his NDCS facility tours
and face-to-face interviews with a sample of NDCS prisoners. Dr. Haney offers his
opinion that “the conditions of confinement in the NDCS isolation units . . . are exactly
the type of conditions that my own experience and study and decades of scientific
research have found to place all prisoners at significant risk of serious harm.” (Filing
No. 249-42 at pp. 8-9). Plaintiffs use Haney’s declaration to establish commonality.
(Filing No. 250 at p. 41).
• Pablo Stewart, M.D., a board-certified psychiatrist retained to opine on the NDCS’s
policies and practices regarding mental health services provided to its prisoners. Dr. Stewart
bases his opinions on NDCS’s policies, the named plaintiffs’ medical files, deposition
transcripts of NDCS officials, and his tours of six NDCS facilities and review of files of
random individual prisoners receiving psychiatric care. Dr. Stewart offers a preliminary
opinion that “NDCS lacks the systems and resources needed to ensure that prisoners with
mental illness are identified and treated in the manner necessary to prevent serious harm or
death,” and that “the shortage of mental health staff, structural deficiencies in the
provision of mental health treatment and medications are statewide systemic problems.”
(Filing No. 249-38).
• Jay Shulman, DMD, MA, MSPH, retained to provide an opinion as to “whether there are
current systemic deficiencies in the dental care provided by the [NDCS] that are
amenable to a common remedy that will reduce the risk of harm to prisoners.” Dr.
Shulman is of the opinion that “the consistently inadequate dental care documented in
the records I reviewed is attributable to systemic problems caused by inadequate dentist
staffing and inadequate policies and procedures in the NDCS’s Dental Department.”
(Filing No. 249-53).
• Marc Stern, M.D., MPH, retained to evaluate the health care services provided by the
NDCS to its prisoners, and “whether and, if so, how the health care policies and practices
of NDCS impact all plaintiffs, putting them all at a substantial risk of serious harm,
regardless of their individual medical histories.” (Filing No. 249-58).
Broadly speaking, Defendants argue that the above declarations should be stricken in whole
or in part because they contain legal conclusions, irrelevant and unsupported statements, and
assumptions, are based on insufficient facts and/or data and flawed methodology, and because they
offer opinions on the merits of the case rather than class certification. Defendants additionally
argue that many of the experts offer opinions outside of their qualifications and expertise. See
generally, Filing No. 353.
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ANALYSIS
Rule 702 of the Federal Rules of Evidence provides that an expert witness may offer an
opinion 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;
(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. Daubert instructs the district court to serve as a gatekeeper to “ensure that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509
U.S. at 589. However, this “gatekeeping function” applies to evidence “submitted to the jury” so
“‘[t]here is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate
only for himself.’” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011)
(quoting United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005)). Because “[t]he main
purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific
testimony[,] [t]hat interest is not implicated at the class certification stage where the judge is the
decision maker.” Id. Instead, at the class certification stage, the court should conduct a “focused”
Daubert analysis that “scrutinize[s] the reliability of the expert testimony in light of the criteria for
class certification and the current state of the evidence.” Id. at 614. Therefore, the court’s review
of expert disputes is “properly limited to whether, if [the plaintiffs’] basic allegations [are] true,
common evidence could suffice, given the factual setting of the case, to show classwide injury.”
Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2005)); accord In re Zurn Pex, 644 F.3d at
611.
Defendants argue that the considerations supporting the “focused” Daubert analysis set
forth in In re Zurn Pex only apply in cases where discovery has been bifurcated into separate class
certification and merits stages, which the Court ultimately did not order in this case. (Filing No.
378 at p. 2). However, the Court did not bifurcate discovery largely because the Court and parties
recognized that class certification questions and merits questions would frequently overlap,
leading to more disputes and inefficiencies in the discovery process if a strict bifurcation schedule
was attempted. (Filing No. 80; Filing No. 95). The Court and parties generally proceeded with
the understanding that class certification discovery would take priority over merits discovery
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where possible, and further discovery would continue beyond the class certification stage. “Class
certification ‘is inherently tentative,’ . . . and may ‘require revisiting upon completion of full
discovery.’” In re Zurn Pex, 644 F.3d at 613 (internal citations omitted). As Plaintiffs’ experts
stated in their declarations, their opinions were “partial and preliminary” based on the information
currently available to them, but recognized that their opinions may be further developed or
supplemented with further discovery. See, e.g., Filing No. 249-50 at p. 5 - Schlanger Declaration;
In re Zurn Pex, 644 F.3d at 613 (“Expert opinions may have to adapt as such gaps are filled by
merits discovery, and the district court will be able to reexamine its evidentiary rulings.”).
Therefore, the reasoning behind In re Zurn Pex’s focused Daubert analysis is equally applicable
in this case.
In this case, the Court finds that the expert opinions offered by Margo Schlanger, Eldon
Vail, Craig Haney, Pablo Stewart, Jay Shulman, and Marc Stern are sufficiently reliable in light
of the available evidence and purpose for which they were offered. Each declaration sets forth the
expert’s qualifications, experience, and facts and data upon which the expert’s opinions were
based. As stated above, at the class certification stage the Court is to “examine the reliability of
the expert testimony in light of the existing state of the evidence and with Rule 23’s requirements
in mind.” In re Zurn Pex, 644 F.3d at 612. The proponent of class certification must demonstrate
that the Rule 23(a) requirements of “numerosity, commonality, typicality, and fair and adequate
representation” exist and that one of the three subsections of Rule 23(b) have been met. See Luiken
v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013). The Court concludes that Plaintiffs’
experts’ opinions assist in this determination. In particular, the experts’ opinions relate to the
commonality requirement, which “requires the plaintiff to demonstrate that the class members
‘have suffered the same injury,’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011),
and that a “classwide proceeding will ‘generate common answers apt to drive the resolution of the
litigation.’” Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011) (quoting Dukes, 564 U.S.
at 350). The expert opinions also relate to typicality, which “is generally considered to be satisfied
if the claims or defenses of the representatives and the members of the class stem from a single
event or are based on the same legal or remedial theory,” Paxton v. Union Nat. Bank, 688 F.2d
552, 561-62 (8th Cir. 1982) (quotation marks and citation omitted), and means that there are “other
members of the class who have the same or similar grievances as the plaintiff.” Alpern v. UtiliCorp
United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996) (quoting Donaldson v. Pillsbury Co., 554 F.2d
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825, 830 (1977)). Although Defendants suggest that Plaintiffs’ experts’ opinions are deficient
because they do not address all of the requirements of Rule 23(a), (Filing No. 353 at pp. 4, 10, 22,
34, 39), there is no such requirement that the experts do so.
Defendants further argue that the expert declarations should be stricken because they are
based on insufficient or inadequate data and facts, including some opinions offered without the
expert visiting a Nebraska prison or citing Nebraska-specific statistics. (Filing No. 353 at pp. 610, 17). However, “[a]s a general rule, the factual basis of an expert opinion goes to the credibility
of the testimony, not the admissibility.” In re Zurn Pex, 644 F.3d at 614 (quoting Bonner v. ISP
Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001)). “Such testimony should be excluded only if it ‘is
so fundamentally unsupported that it can offer no assistance to the jury.’” Id. Here, the court is
equipped to evaluate and determine what weight, if any, to afford relevant expert testimony when
determining whether Plaintiffs satisfied the prerequisites of Rule 23 to certify the class and
subclasses. See id. at 611; Blades, 400 F.3d at 575.
Defendants also seek to strike part or all of the expert declarations because they improperly
opine on the merits of the case and do not assist the Court in the class certification determination.
(Filing No. 353 at pp. 4, 10, 22, 24, 39-40, 44, 52). A court properly certifies a class only if, after
a “rigorous analysis,” the court determines that the prerequisites of Rule 23(a) are met. Dukes,
564 U.S. at 350-51. This rigorous analysis “will frequently entail ‘overlap with the merits of the
plaintiff’s underlying claim . . . because the ‘class determination generally involves considerations
that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’”
Comcast Corp. v. Behrend, 569 U.S. 27, 33-34 (2013) (citation omitted). The Court will be
capable of compartmentalizing its class certification analysis from its merits analysis when
reviewing the evidence in support and in opposition to class certification, and therefore the expert
declarations do not need to be stricken on this basis. Accordingly,
IT IS ORDERED that Defendants’ Motion to Strike Expert Declarations (Filing No. 351)
is denied.
Dated this 22nd day of August, 2019.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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