duBois v. Board of County Commissioners of Mayes County, The et al
Filing
191
OPINION AND ORDER by Judge John E Dowdell ; granting in part and denying in part 135 Motion to Exclude; granting in part and denying in part 136 Motion to Exclude (Re: 40 Amended Complaint, ) (SAS, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
GERALDINE DUBOIS, Guardian of the
Person and Estate of Gregory Steven DuBois,
)
)
)
Plaintiff,
)
)
v.
)
)
THE BOARD OF COUNTY COMMISSIONERS )
OF MAYES COUNTY, OKLAHOMA;
)
FRANK CANTEY; CHUCK WARD; JEFFERY )
BARTLETT; S. BROWN; MITCH GOODMAN; )
EMILY GARCIA; MIKE REED;
)
)
Defendants.
)
Case No. 12-CV-677-JED-PJC
OPINION AND ORDER
Before the Court are defendants’ motions to exclude plaintiff’s experts, Jeff Eiser and
Richard Hastings, D.O. (Doc. 135, 136).
I.
Standards Governing Expert Testimony
Pursuant to Federal Rule of Evidence 702, “[e]xpert testimony is admissible only if it is
potentially helpful to the jury and ‘(1) the testimony is based on sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the [expert] has applied the
principles and methods reliably to the facts of the case.’” United States v. Baines, 573 F.3d 979,
985 (10th Cir. 2009) (quoting Fed. R. Evid. 702). In Daubert v. Merrell Dow Pharm., Inc.¸ 509
U.S. 579 (1993), the Supreme Court suggested factors to guide “trial courts in determining
whether proposed expert testimony is based on reliable methods and principles: (1) whether the
particular theory can be and has been tested; (2) whether the theory has been subjected to peer
review and publication; (3) the known or potential rate of error; (4) the existence and
maintenance of standards controlling the technique's operation; and (5) whether the technique
has achieved general acceptance in the relevant scientific or expert community.” Baines, 573
F.3d at 985 (citing Daubert, 509 U.S. at 593-94). The Daubert inquiry is “flexible,” and the
district court does not need to consider every Daubert factor. Id. at 989–90; see also Bitler v.
A.O. Smith. Corp., 400 F.3d 1227, 1233 (10th Cir. 2004) (“[T]his list is neither definitive nor
exhaustive and . . . a trial judge has wide discretion both in deciding how to assess an expert's
reliability and in making a determination of that reliability.”).
“If the witness is relying solely or primarily on experience, then the witness must explain
how that experience leads to the conclusion reached, why that experience is a sufficient basis for
the opinion, and how that experience is reliably applied to the facts.” Fed. R. Evid. 702,
advisory committee note. The court should make a preliminary finding whether the expert is
qualified, by determining “if the expert's proffered testimony . . . has ‘a reliable basis in the
knowledge and experience of his discipline.’” Bitler, 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).
II.
Jeff Eiser
Plaintiff has identified Jeff Eiser as a jail policy and procedures expert. In his expert
report, Eiser offers a number of opinions regarding the manner in which the Mayes County Jail
(Jail) handled Mr. Dubois’ incarceration and medical complaints. (See Doc. 135-1). Defendants
2
move to preclude Eiser from testifying as an expert, based on defendants’ argument that he is not
qualified to render expert testimony on jail standards. If he is found to be qualified as an expert,
the defendants request that the Court preclude Eiser from providing three specific opinions at any
trial of this matter.1
A.
Eiser’s Qualifications and Experience
Defendants first contend that Eiser does not have the requisite qualifications and
experience to render any expert opinion in this case. Specifically, they assert that Eiser has been
inactive in his field since 2009, and that certain of his certifications are out of date.
Eiser’s expert report details his qualifications and experience, which are extensive in the
corrections industry, and he indicates that he has experience writing policy handbooks for jail
administrators and significant experience with training, jail staffing, and standards. (Doc. 135-1
at ¶¶ 3-5). Eiser began work in the corrections industry in 1980 and spent the significant portion
of his career as a Deputy Director of Corrections, which he describes as “basically jail
administrator.” (Doc. 135-2 at 15, ln. 4-12). Although Eiser retired in 2009, the policies and
procedures he analyzed in conjunction with this case were in place during Eiser’s tenure as
Deputy Director of Corrections. Eiser worked in some correctional capacity for 29 years, his
entire law enforcement career. The last nine years of his career focused on security, intake
functions, and the daily operations of the Hamilton County (Cincinnati) correctional facilities.
(Id. at 15, ln. 21-25, at 16, ln. 1-7). Prior to that, Eiser supervised and implemented training for
1
The Court has not yet ruled on several pending summary judgment motions. To the
extent that some but not all claims survive summary judgment to proceed to trial, only expert
opinions that are relevant to surviving claims will be allowed. As such, this order is without
prejudice to further consideration of the relevance of the plaintiff’s experts’ opinions to claims
that remain following a ruling on summary judgment motions.
3
correctional officers, correctional supervisors, and other administrative persons. (Id. at 17, ln. 1925). Eiser is an adjunct instructor in criminal justice.
The Court declines to exclude Eiser as an expert in this case. Eiser is qualified to render
testimony as it relates to the field of jail operations and correctional staffing, policies,
procedures, and standards. The defendants’ concerns do not undermine his overall expertise and
experience in the industry, and defendants do not adequately explain how any standards
applicable to this case have changed in the time since he retired in 2009. Moreover, the
defendants can cross examine Eiser to point out to the jury any alleged deficiencies in his
knowledge on particular subjects on which he opines.
B.
Investigation regarding Mr. Dubois
The first Eiser opinion challenged by the defendants involves Eiser’s conclusion that
Frank Cantey, who was the Sheriff at the time, and Chuck Ward, the Jail Administrator, failed to
conduct an extensive internal review of Dubois’ incarceration after he was taken to the hospital
and lost a limb. (Doc. 135-1 at 16-17). According to Eiser, their failure to do so exhibits a
“culture of indifference.” (Id. at 16).
Eiser asserts that “an effective and comprehensive
administrative review confirms for the jail staff that they will be held responsible for their
actions and it creates a ‘culture of accountability’ for all levels of command.” (Id.). Eiser then
concludes that the Jail’s failure to conduct a review exhibits jailers’ “indifference to the most
basic responsibilities for a jail; to ensure the safety of inmates and their access to adequate
medical care, assessment and treatment.” (Id.).
A trial court must ensure “that an expert’s testimony both rests on reliable foundation and
is relevant to the task at hand.” Kumho Tire Co., v. Carmichael, 526 U.S. 137, 141 (1999)
(quoting Daubert¸ 509 U.S. at 597). The Court agrees with the defendants that Eiser’s opinion
4
regarding a failure to investigate or conduct an internal review after Mr. Dubois was injured does
not have any relevance to any material issue to be tried in this case. In order to be found liable
for alleged violations of Mr. Dubois’ rights under the Eight Amendment, plaintiff must prove –
depending on which class of defendant is at issue – that a policy or custom was the moving force
behind Mr. Dubois’ constitutional injury or that an individual defendant was deliberately
indifferent to a serious medical need, proximately causing his injuries. See City of Canton v.
Harris, 489 U.S. 378, 385 (1989); Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658, 694 (1978); Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010); Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976). Eiser’s opinion regarding the failure to conduct a postincident review is temporally defective in a manner that renders that opinion irrelevant. In short,
there is obviously no causal link between Mr. Dubois’ injuries and an alleged failure of the Jail
to do something after the injury occurred. Mr. Dubois’ leg was amputated before the allegedly
deficient failure to conduct a review, thus the defective review could not have caused his injury.
Even were Eiser’s opinion relevant, his methodology is overly general on the issue of the
internal review. Eiser links the alleged failure to conduct an administrative review to the
American Correctional Association (ACA) Standard 7D which requires that “the facility is
administered efficiently and responsibility.” Although the Court is not at this time prohibiting
Eiser from referencing other specific portions of the ACA when tendering an opinion, standard
7D of the ACA is an unhelpful and overly generalized “catch all” provision that could be applied
to virtually any purported deficiency in any facility in the United States. Due to the irrelevant
nature of the opinion and the superficial analysis that accompanies it, any testimony regarding an
internal review is excluded.
5
Eiser will be precluded from testifying as to his opinion regarding any internal review
that he feels should have been conducted after Mr. Dubois was injured, and defendants’ motion
is granted as to that issue.
C.
Failure of Jail Staff to Call for a Medical Evaluation
Defendants next complain that Eiser inaccurately indicates that Jail staff, who receive
only basic CPR and first aid training, are not medically trained. The gravamen of Eiser’s opinion
on that point is that Jail staff did not ensure that Mr. Dubois received proper medical care as is
necessary for inmate health and safety. For instance, Eiser opines that, on both May 17 and July
15, jailers should have ensured that Mr. Dubois received treatment from a medical professional
rather than relying on their own judgment as laypeople.
In rendering that opinion, Eiser
references the Oklahoma Jail Standards and the National Commission on Correctional Health
Care (NCCHC), which require facilities to grant inmates access to care. Principally, Eiser argues
that inmates should have been examined by Jan Wells, the nurse practitioner, who was the only
person who had the authority to give a “professional clinical judgment” as required by the
standards, but during relevant periods Dubois was not seen by any medical professional at all.
In contrast to Eiser’s first opinion, the cited standards do provide a sufficient basis for
establishing that Eiser relied on a methodology rather than merely a “subjective belief or [an]
unsupported speculation,” Daubert, 509 U.S. at 590. Eiser’s opinion is also relevant in the
context of an alleged Eighth Amendment violation. To the extent that defendants argue that
Eiser misstates evidence regarding the medical qualifications of Jail staff, those points can be
explored on cross-examination. That is, to the extent that he describes any factual background in
a manner that is overstated, the defendants can point out what they reference in their motion –
that staff had CPR and first aid training in accordance with the Oklahoma Jail Standards.
6
Defendants’ motion to exclude the expert testimony as it relates to Eiser’s opinion on this
point is denied.
D.
Policy or Custom of Denying Medical Care through Deliberate Indifference
Defendants’ last Daubert argument challenges Eiser’s opinion that defendants Ward and
Cantey established a “pattern, custom, or practice of ignoring known risks and exhibiting
deliberate indifference to the safety, health, and medical needs” of the plaintiff. (See Doc. 135-1
at 19). Defendants also contend that Eiser should not be permitted to testify as to his opinion
that defendants had a policy or custom of denying medical care. The Court agrees. Such
testimony will not assist the jury in determining any fact issue. The factual record will be the
necessary evidence upon which the jury must determine whether such a policy or custom existed,
in light of the instructions on the law which the Court will provide. The jury will not need an
expert to tell them how to apply the law to the factual evidence they hear on that point.
In addition, the Court has ruled in previous cases, as to this particular expert, that it is
improper for an expert to opine that a jail’s actions or inactions constitute “deliberate
indifference,” as Eiser wishes to opine in this case. See Poore v. Glanz, No. 11-CV-797-JED,
2014 WL 4263225 at *4-5 (N.D. Okla. Aug. 29, 2014); Henderson v. Glanz, No. 12-CV-68-JED,
2014 WL 2761206 at *4 (N.D. Okla. Jun. 18, 2014).
In Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988), the Tenth Circuit concluded that an
expert should not be permitted to give an opinion on an ultimate issue of law. 853 F.2d at 80709. In arriving at that conclusion, the court noted that “a number of federal circuits have held
that an expert witness may not give an opinion on ultimate issues of law,” and stated:
The courts in these decisions draw a clear line between permissible testimony on
issues of fact and testimony that articulates the ultimate principles of law
governing the deliberations of the jury. These courts have decried the latter kind
of testimony as directing a verdict, rather than assisting the jury’s understanding
7
and weighing of the evidence. In keeping with these decisions, we conclude the
expert in this case was improperly allowed to instruct the jury on how it should
decide the case. The expert’s testimony painstakingly developed over an entire
day the conclusion that defendants violated plaintiffs’ constitutional rights. . . . By
permitting the jury to hear this array of legal conclusions touching upon nearly
every element of the plaintiffs’ burden of proof under § 1983, the trial court
allowed the expert to supplant both the court’s duty to set forth the law and the
jury’s ability to apply this law to the evidence. . . . In no instance can a witness be
permitted to define the law of the case.
853 F.2d at 808-10.
Under the foregoing standards, Eiser’s opinions that defendants’ actions or inactions
exhibited a pattern or practice of “deliberate indifference” will be excluded. The Court will
instruct the jury on the meaning of deliberate indifference in the context of plaintiff’s claims
under 42 U.S.C. § 1983, and it is thus inappropriate for Eiser to specifically opine on whether he
believes deliberate indifference is present in this case. Eiser’s opinion on this point would not be
helpful to a jury without any explanation of the context of that legal term of art, as to which Eiser
does not have any particular expertise. That opinion will be excluded and defendants’ motion is
granted to that extent.
III.
Richard Hastings, D.O.
Defendants request that the Court prohibit Richard Hastings, D.O. (Dr. Hastings) from
offering expert testimony at any trial. They do so based upon his alleged lack of qualifications in
the relevant fields of medicine. Defendants also move to exclude various portions of his opinion
on prejudicial grounds.
A.
Qualifications
Defendants emphasize that Dr. Hastings has not had an active role in a hospital setting in
over twenty (20) years, he office shares with a variety of different attorneys who use his service,
and he has no specialties which would aid him in reaching an opinion in this case. Specifically,
8
defendants argue that, because he has no certifications in “surgery, oncology, emergency
medicine, or gastroenterology,” he should be precluded from testifying regarding the medical
issues in this case. (See Doc. 136 at 4).
Dr. Hastings received his D.O. from Oklahoma State University and completed a four
year residency in internal medicine in 1984. He has a board certification in Internal Medicine.
(See Doc. 126-2 at 17, ln. 7-10). Dr. Hastings’ principal purpose for testifying is to offer an
opinion on causation – that the Jail’s delay in obtaining medical care for Mr. Dubois caused Mr.
Dubois’ leg to be amputated and that amputation would not have been necessary had he received
timely treatment on the bowel issue. Based upon his medical degree and many years of
experience in internal medicine, the Court is unwilling to find that Dr. Hastings lacks sufficient
qualifications to testify at all in this matter.
To the extent that Dr. Hastings office shares or principally offers testimony favorable to
lawyers for plaintiffs, as defendants argue, those points do not automatically disqualify him from
offering medical opinions. Those issues do go to bias, and effective cross-examination relating
to bias will be permitted and will address many of defendants’ concerns about Dr. Hastings’
qualifications.
B.
Challenged Opinions
With respect to particular opinions, defendants first contend that Dr. Hastings should not
be permitted to provide an opinion regarding legal constitutional standards, and his repeated
references to negligence (see Doc. 137-1) will confuse the issues for the jury in violation of Fed.
R. of Evid. 403. The Court agrees. Negligence alone is insufficient to establish a violation of
the Eight Amendment, and informing the jury of his opinion that the Jail was “negligent” will be
unhelpful and potentially confusing. To that extent, the defendants’ motion to exclude his
9
testimony is granted. However, the Court notes that the principal issue upon which Dr. Hastings
opines – causation – is an appropriate topic for expert testimony in this case, and Dr. Hastings
will be permitted to testify as to his opinion that Mr. Dubois would not have lost his leg if he had
received timely medical treatment, and Dr. Hastings will be permitted to explain the grounds for
that opinion.
Defendants also contend that Dr. Hastings’ use of the term “gastrointestinal adverse
symptom complex” should be excluded because it is a term he made up to describe plaintiff’s
condition and that term is not scientifically supported. (See Doc. 136, Exhibit 2, p. 22, ln. 13-24).
The Court agrees that use of that term may mislead or confuse the jury by suggesting that there is
such a complex or diagnosis when it appears that it is not supported in the medical field. Dr.
Hastings will be permitted to discuss in detail Mr. Dubious’ condition and symptoms to the
extent his opinions are premised thereon, but he will not be permitted to describe it as a complex
that has no medical support. Defendants’ motion to exclude the use of the term “gastrointestinal
adverse symptom complex” is granted.
Defendants’ last contention is that Dr. Hastings should be precluded from making use of
the Oklahoma Jail Standards or other jail operating procedures because he is not an expert in
those fields. The Court agrees, and cautions that his opinions should be limited to Mr. Dubois’
medical condition and the causation issue referenced above.
IV.
Conclusion
Defendants’ motions to exclude plaintiff’s experts (Doc. 135, 136) are granted in part
and denied in part, as set forth above.
SO ORDERED this 9th day of March, 2016.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?