Cox v. Glanz et al

Filing 324

OPINION AND ORDER by Judge John E Dowdell ; granting 191 Motion in Limine; granting in part and denying in part 199 Motion in Limine (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
CAROLYN COX,
Plaintiff,
v.
STANLEY GLANZ,
Defendant.

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Case No. 11-CV-457-JED-FHM

OPINION AND ORDER
Before the Court are (1) plaintiff’s Motion in Limine to Preclude Expert Testimony of
[defendant’s expert] witness, Arthur W. Rousseau (Doc. 191) and (2) plaintiff’s Motion in
Limine (Doc. 199). These motions present certain overlapping issues. Defendant Stanley Glanz
filed a Response in opposition to Doc. 199 (Doc. 215) and, with the Court’s permission (Doc.
310), he filed an out of time Response (Doc. 311) to Doc. 191, which adopted the previouslysettled defendants’ Response (Doc. 213). Plaintiff filed a Reply in support of Doc. 199 (Doc.
239). The Court has previously summarized the factual background of this case in prior orders.
See in particular the Court’s Opinion and Order (Doc. 321) filed March 7, 2014.
I.

Motion to Preclude Expert Testimony
A.

Standards Governing Expert Testimony

Rule 702 of the Federal Rules of Civil Procedure applies to the admissibility of expert
testimony. The rule provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise 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. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 597
(1993), the Supreme Court held that district courts act in a “gatekeeping role” to ensure that
scientific expert testimony is relevant and reliable. An expert’s opinion must be based on “more
than subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590. The applicability
of Daubert was later expanded to apply to the opinions of all experts, not just scientific experts.
See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (“We conclude that Daubert's
general holding -- setting forth the trial judge's general ‘gatekeeping’ obligation -- applies not
only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and
‘other specialized’ knowledge.”).
The Supreme Court set forth several non-exclusive factors that a court may consider in
making its determination whether proposed expert testimony will assist the trier of fact: (1)
“whether it can be (and has been) tested”; (2) “whether the theory or technique has been
subjected to peer review and publication”; (3) the “known or potential rate of error” of a
technique; and (4) whether the theory or technique has “general acceptance,” which is an
important consideration because “‘a known technique which has been able to attract only
minimal support within the community’ may properly be viewed with skepticism.” See Daubert,
509 U.S. at 593-94. The inquiry into these factors is “a flexible one,” and the focus is “on
principles and methodologies, not on the conclusions that they generate.” Id. at 593
In Bitler v. A.O. Smith Corp., 400 F.3d 1227 (10th Cir. 2005), the Tenth Circuit discussed
the role of district courts when considering a Daubert challenge. The court should make a
preliminary finding whether the expert is qualified, by determining “if the expert's proffered
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testimony . . . has ‘a reliable basis in the knowledge and experience of his [or her] discipline.’”
400 F.3d at 1232-33 (quoting Daubert, 509 U.S. at 592). The proponent of expert testimony
must establish that the expert used reliable methods to reach his conclusion and that the expert's
opinion is based on a relevant factual basis. See id. at 1233. “[A] trial court's focus generally
should not be upon the precise conclusions reached by the expert, but on the methodology
employed in reaching those conclusions.” Id. However, an impermissible analytical gap in an
expert's methodology can be a sufficient basis to exclude expert testimony under Daubert. See
id.; see also Norris v. Baxter Healthcare Corp., 397 F.3d 878, 886 (10th Cir. 2005). “Neither
Daubert nor the Federal Rules of Evidence ‘require[ ] a district court to admit opinion evidence
which is connected to existing data only by the ipse dixit of the expert.’” Norris, 397 F.3d at 886
(quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
B.

Dr. Arthur Rousseau’s Opinions

The Motions at issue both relate generally to opinions of Dr. Arthur Rousseau, who has
been listed as an expert witness by defendant. Dr. Rousseau is a psychiatrist who has examined
Jail records, as well as audiotaped phone calls made by Mr. Jernegan while he was incarcerated
at the Jail before he hung himself from a sheet in his cell in the Jail’s general population. His
opinions include the following:
Within a medical probability, Mr. Jernegan was not suffering from a mood
disorder such as Major Depressive Disorder during the three incarcerations at [the
Jail]. More specifically, during Mr. Jernegan’s incarceration in July 2009, phone
conversations were recorded that allow one to further assess Mr. Jernegan’s mood
and mental status. During the seven phone conversations, Mr. Jernegan never
spoke of suicidal thoughts. . . .
I also do not consider Mr. Jernegan to have a thought disorder such as Paranoid
Schizophrenia as he documented [by reports to Jail personnel] on July 29, 2009.
In reviewing the audio CD of Mr. Jernegan’s telephone conversations, it is clear
that he was oriented to time, person, place and present situation. . . .

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It is also within a medical probability that Mr. Jernegan fulfills the diagnostic
criteria for an Axis II diagnosis of Antisocial Personality. [Three of seven listed
criteria must be fulfilled for a person to be so diagnosed.] Although Mr.
Jernegan’s past psychiatric history is not available, the provided information
illustrates that Mr. Jernegan fulfills more than the required three of seven criteria
for Antisocial Personality. . . . Mr. Jernegan a. Was involved in a sexual
relationship with a fourteen or fifteen year old female; b. Encouraged this young
girl to sell drugs so that he could have money for his personal use; c. Was aware
that his girlfriend used drugs because it was the only way she could be with him
when he used them; d. Made comments that he could not sexually satisfy his
girlfriend and suggested multiple-partner sex; and e. Wanted others to make third
party phone conferences even though he knew it was against the rules.
Based on the medical probability of Mr. Jernegan having a Personality Disorder,
one must also take into consideration that Mr. Jernegan was not always being
truthful in his self-reports regarding his mental health. For example he states that
he was being treated for Paranoid Schizophrenia.
With regard to Mr. Jernegan’s suicide, it is within a medical probability that Mr.
Jernegan did not want to die, but wanted to be segregated from the cell population
and saw that a “suicide attempt” could achieve this goal. In clinical terms, this is
referred to as a “failed parasuicide.” . . . It is within a medical probability that Mr.
Jernegan was attempting a parasuicide. Mr. Jernegan gave no indication nor
displayed any symptoms that he was depressed, or expressed any suicidal
thoughts to [the Jail or nursing staff], fellow prisoners or his family.
In summary, it is my opinion that [the Jail and medical staff] provided adequate
mental health care to Mr. Jernegan, that his parasuicide was not foreseeable to
anyone, and that there was no negligence or deliberate indifference on the part of
the facility or the individual staff members.
(Doc. 213-1).
Plaintiff asserts that Dr. Rousseau’s opinions are unreliable because they are based on
pure speculation, lack any factual, clinical, or scientific support, are not supported by any peerreviewed literature or any other source material, and are not relevant because they are based on
telephone calls that played no role in the mental health treatment (or lack thereof) of Mr.
Jernegan while at the Jail.
Based upon applicable Daubert standards, the Court finds that Dr. Rousseau’s opinions
are not based upon a relevant factual basis or reliable methodology and would not be of
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assistance to the jury. Defendant has not specifically described Dr. Rousseau’s methodology. It
appears to the Court that his basic methodology involved diagnosing Mr. Jernegan – a deceased
person whom Dr. Rousseau never saw or examined as a patient or even met – with Antisocial
Personality Disorder. That was apparently gleaned from being advised of prior arrests and
listening to a limited number of audio-recorded telephone calls made by Mr. Jernegan while at
the Jail. The defendant has not provided any information to support a methodology of making a
psychiatric diagnosis of mental condition based solely upon listening to audio recordings of
telephone calls and/or obtaining an arrest record. From his own conclusion that Mr. Jernegan
“within a medical probability” had an Antisocial Personality, Dr. Rousseau then jumps to an
unsupported suggestion that Mr. Jernegan “was not always being truthful in his self-reports
regarding his mental health.” These opinions by Dr. Rousseau are further suspect and unreliable
because, as he acknowledges, “Mr. Jernegan’s past psychiatric history is not available.” The
Court finds these opinions to be the type of unsupported speculation that Daubert prohibits.
Daubert, 509 U.S. at 590.
From listening to the telephone calls, Dr. Rousseau also extrapolates that Mr. Jernegan
did not actually commit suicide when he hung himself from a sheet in his cell and subsequently
died, but that he really committed a “failed parasuicide.” His analysis is essentially that: (1) Mr.
Jernegan did not want to die, but only wanted to get attention, so he decided to hang himself
from a sheet in his cell, with the intention that he would be found and saved; (2) but, he died, so
he failed at what he intended to be only a fake attempted suicide to garner attention and perhaps
a transfer from the general Jail population. Thus, Dr. Rousseau concludes that “it is within a
medical probability that Mr. Jernegan did not want to die, but wanted to be segregated from the
cell population and saw that a ‘suicide attempt’ could achieve this goal.” (Doc. 191-1 at 3). Dr.

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Rousseau’s methodology, again, appears to be determining, from a psychiatric standpoint, what
Mr. Jernegan intended to be the consequence of hanging himself, based upon listening to some
telephone calls Mr. Jernegan made prior to hanging himself. Defendant has not provided any
data, study, or other support for such a methodology, and the Court finds the analytical gap to be
so wide that it is doubtful any such support exists.
Defendant supplied one article which purportedly supports Dr. Rousseau’s methodology
at reaching his conclusion relating to “failed parasuicide.” (Doc. 213 at 5; Doc. 213-1). That
article very generally summarizes certain literature on the “Epidemiology of Parasuicide.” (Doc.
213-1). The article, itself, recognizes “methodological problems [which] constitute a major
limitation in interpretation of the results,” and “methodological inconsistencies across studies.”
(Id.). The article also notes that there have been “widely differing methodologies between
studies,” that parasuicide, defined broadly, “includes both suicide attempts and deliberate selfharm inflicted with no intent to die,” and that the term “has been inconsistently interpreted.”
(Id.) (emphasis added). There is no standardization of “[o]utcome variables and assessment
procedures,” and the “sources of information for studies on parasuicide are inadequate.” (Id.).
Beyond these factors, which do not reflect a reliable methodology for diagnosing “failed
parasuicide,” the article is focused on analyzing information principally derived from responses
to survey questions posed to people who had not died and thus could report their intent (see id.).
The article provides no application which might bolster the “methodology” used by Dr.
Rousseau to arrive at his theory that Mr. Jernegan’s death was possibly a “failed parasuicide.”
Finally, it is noteworthy that the one and only article provided in support of his
methodology actually somewhat undermines his conclusions. For instance, while Dr. Rousseau
opines that Mr. Jernegan’s reports of being paranoid schizophrenic and nervous / depressed may

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have been untruthful and that he really intended to commit parasuicide (not suicide), the article
provided by defendant reports that “[t]here is some evidence that having a mental disorder is a
risk factor for parasuicide. The most frequent diagnoses are mood disorders, and especially
depression. Panic and anxiety disorders have also been associated with parasuicide as have
schizophrenia, psychotic disorders, personality disorders, and adjustment disorders.” (Id.). The
Court has not been provided with any peer-reviewed or other information supporting Dr.
Rousseau’s purported methodology or theories about Mr. Jernegan, and his opinions and
methodology are lacking reliable factual or accepted medical / psychiatric or scientific support.
Defendant has also not provided any other examples or instances of admission of similar expert
opinions or methodologies by a psychiatrist under these circumstances.
Even if the Court were to find Dr. Rousseau’s proposed opinions to be reliable, the
opinions are irrelevant. The issues in this case principally involve (1) whether the defendant
deliberately disregarded a serious risk to Mr. Jernegan’s health or safety; and (2) whether a
county policy or custom was the moving force behind a deprivation of plaintiff’s constitutional
rights under the Eighth and Fourteenth Amendments. (See Doc. 321). Civil rights claims based
upon jail suicides are treated as claims based on a failure of jail officials to provide medical care
for jail inmates in their custody. (Id., citing authority). Thus, whether Jail staff knew Mr.
Jernegan was suffering from a serious mental illness and was at risk of harm is a consideration.
However, defendant has not supplied any evidence that Jail staff or medical / mental health staff
were listening to or aware of his phone calls at the time, much less that they determined based
upon any such calls (as Dr. Rousseau purports to have done) that Jernegan was not really at risk
of harm. Plaintiff also asserts (and defendant does not dispute) that there is no evidence that the
phone calls played any role whatsoever in Mr. Jernegan’s mental health care at the Jail. During

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his last incarceration before his death, he was not provided any mental health care, was not
referred for mental health evaluation, and never saw a psychiatrist or a mental health team
member, despite entering a mental health request.
Likewise, defendant has not supplied the Court with any evidence that Jail medical /
mental health staff performed the “analysis” that Dr. Rousseau performed, essentially diagnosing
Mr. Jernegan as having an Antisocial Personality, which Rousseau concludes would call into
question whether he was being truthful when he reported paranoid schizophrenia, hallucinations,
and nervousness / depression at the time he was booked into the Jail. On this point, Dr.
Rousseau testified:
Q.

By the way, you diagnosed Mr. Jernegan as having an antisocial
personality disorder; right?

A.

I said within a reasonable medical probability he has an antisocial
personality disorder.

Q.

These previous persons at the jail who spoke to Mr. Jernegan, the mental
health staff there, any of them reach the diagnosis that you did?

A.

No.

Q.

And so they just missed that?

A.

No. . . . I think to make a personality diagnosis you’ve go[t] to back up
and kind of put together what has been going on with this individual,
which I had the opportunity to do in reviewing all of the records, in
reviewing phone conversations that he had while he as at the prison.

Q.

(BY MR. BULLOCK) But they didn’t identify that, did they?

A.

As I said, no, they didn’t.

(Doc. 191-2 at 3, ll.14-25, at 4, ll.1-8). Because the Jail staff did not rely upon or do any of the
analysis performed by Dr. Rousseau, his opinions on these issues simply do not bear upon the
Jail staff’s actions with respect to Mr. Jernegan’s care (or lack thereof), or whether they were

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deliberately indifferent or there was a Jail policy or custom that resulted in a constitutional
deprivation.
Dr. Rousseau does not explain how his opinion that Mr. Jernegan may have had an
Antisocial Personality would be relevant to any issue in the case. Assuming Mr. Jernegan was
antisocial, he would still have been entitled to protection under the Eighth and Fourteenth
Amendments and to adequate medical care and protection from any known, serious risk of harm.
Plaintiff suggests that Dr. Rousseau’s opinion regarding Antisocial Personality Disorder is a ruse
for a “sinister” purpose: “to raise highly prejudicial and facially irrelevant assertions about Mr.
Jernegan’s sexual relationships.” (Doc. 191 at 7). Thus, plaintiff argues, even were there some
relevance to Dr. Rousseau’s opinion or analysis of the audiotaped phone calls, any minimal
relevance would be substantially outweighed by a danger of unfair prejudice or of confusing or
misleading the jury, and would be excluded under Fed. R. Evid. 403. The Court agrees that Dr.
Rousseau’s analysis and comments regarding Mr. Jernegan’s relationship with a girl alleged to
be “fourteen or fifteen” and regarding the suggestion of “multiple party sex” are prejudicial, and
the Court does not find that analysis or evidence to be probative of any issue in the case. Rather,
it appears calculated to cast a cloud on Mr. Jernegan’s character, which is not at issue in this
case. It is plainly obvious that there are people with undesirable behaviors among an inmate
population, but those undesirable behaviors do not diminish a sheriff’s obligation to provide
adequate medical care to those inmates in conformance with the Eighth and Fourteenth
Amendments to the United States Constitution.
Plaintiff’s Motion in Limine to preclude Dr. Rousseau’s expert testimony (Doc. 191) is
granted.

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II.

Audio Recordings of Mr. Jernegan’s Telephone Calls
Plaintiff argues that the recordings of the telephone calls do not bear upon any issue of

consequence in the case. For the reasons set forth above, those calls do not appear to be relevant,
and any probative value of the content of those calls (as they have been described in the briefing
and Dr. Rousseau’s report) would be substantially outweighed by a danger of unfair prejudice,
confusion of the issues, and misleading the jury. Defendant asserts that the telephone calls are
relevant to Mr. Jernegan’s “state of mind while incarcerated,” but defendant provides no analysis
of any particular content that demonstrates any point that is relevant to any material issue in this
case. Defendant has not claimed or provided any evidence that any Jail or medical staff listened
to or in any way relied upon the calls for the provision of (or denial of) medical / mental health
care to Mr. Jernegan. Accordingly, Plaintiff’s Motion in Limine (Doc. 199) is granted on this
point, and the audio recordings of telephone calls made by Mr. Jernegan while at the Jail are
excluded from the trial of this matter, pursuant to Fed. R. Evid. 402, 403.
III.

Alleged Relationship with a Female Alleged to Be a Minor
Plaintiff requests that the Court exclude any references or allegations or evidence relating

to an alleged relationship between Mr. Jernegan and a female whom defendant has alleged to be
fourteen or fifteen. For the reasons stated herein, such evidence is irrelevant, and is in any event
prejudicial. Plaintiff’s Motion in Limine (Doc. 199) is granted on this issue, pursuant to Fed. R.
Evid. 402, 403.
IV.

Plaintiff’s Guardianship of Two of Mr. Jernegan’s Three Children
Plaintiff argues that evidence of her guardianship of two of her grandchildren at the time

of Mr. Jernegan’s death would be offered only to denigrate Mr. Jernegan in the eyes of the jury
and to shift the focus of the jury from defendant’s alleged deliberate indifference to Mr.

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Jernegan’s shortcomings as a parent. Defendant asserts that the grief of the children and their
loss of companionship and parental care, training, guidance or education will be a consideration
for the jury in determining any economic loss, which necessarily will require the jury to consider
Mr. Jernegan’s relationship with his children. The Court finds that such evidence is likely
relevant to a loss calculation, and plaintiff’s request that the Court exclude such evidence is
denied.
V.

Evidence that Mr. Jernegan was Positive for Hepatitis C
Plaintiff requests that the Court exclude references to Mr. Jernegan’s status as Hepatitis C

positive as it is irrelevant or any relevance is substantially outweighed by prejudice because
Hepatitis C is associated with drug activity. Defendant responds that Hepatitis C is relevant
because Mr. Jernegan’s life expectancy will be an issue for calculation of any damages. Plaintiff
notes that defendant has provided no medical evidence that Mr. Jernegan had a shorter life
expectancy because of Hepatitis C. Neither party has provided any case authority or medical
evidence in support of their argument. In Meller v. Heil Co., 745 F.2d 1297, 1303 (10th Cir.
1984), the defendant in a wrongful death case sought to admit evidence that two hashish pipes
containing marijuana residue were found among decedent’s possessions at the scene of the fatal
accident.

The district court excluded the pipes, concluding that their probative value was

substantially outweighed by the danger of unfair prejudice. The Tenth Circuit agreed with the
district court’s exclusion of that evidence, stating that “[the defendant] provided no medical
foundation for its claim that [the decedent’s] life expectancy was diminished by drug use. . . . It
appears that [the defendant] sought to introduce the hashish pipes for the specific purpose of
arousing juror sentiment against the decedent. The district court clearly acted properly in
excluding this evidence.” Meller, 745 F.2d at 1303.

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As in Meller, defendant has not provided a medical foundation for its claim that Mr.
Jernegan’s Hepatitis C positive status would reduce his life expectancy.
foundation, the evidence should not be admitted.

Absent such a

However, as the parties provided little

information and no evidence in their briefing on this issue, the Court will reserve ruling on this
issue until more information is provided to the Court at the time of trial. At the present time, the
Court does not have enough information to determine the relevance of such evidence, if any, or if
any probative value of the evidence would be substantially outweighed by a danger of unfair
prejudice or confusion of the issues at trial.
IT IS THEREFORE ORDERED that the plaintiff’s Motion in Limine to preclude Dr.
Rousseau’s expert testimony (Doc. 191) is granted.
IT IS FURTHER ORDERED that the plaintiff’s Motion in Limine (Doc. 199) is granted
in part and denied in part, as set forth herein, and the Court reserves ruling on the Hepatitis C
issue.
IT IS SO ORDERED this 11th day of March, 2014.

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