Rosebud Sioux Tribe v. United States of America Department of Health and Human Services et al
OPINION and ORDER denying 66 Motion to Exclude the Warne Report. Signed by U.S. District Judge Roberto A. Lange on 07/09/2019. (KLE)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
ROSEBUD SIOUX TRIBE, a federally
recognized Indian tribe, and its individual
OPINION AND ORDER DENYING
DEFENDANTS' MOTION TO EXCLUDE
THE WARNE REPORT
UNITED STATES OF AMERICA;
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, an executive department of the
United States; THOMAS E. PRICE, Secretary of
Health and Human Services; INDIAN HEALTH
SERVICE, an executive agency ofthe United
States; MICHAEL D. WEAKHEE,Acting
Director ofIndian Health Service; JAMES
DRIVING HAWK,Acting Director of the Great
Plains Area Indian Health Service,'
The Rosebud Sioux Tribe (the Tribe) filed a Complaint against the United States of
America, the Department of Health and Human Services (HHS) and its Secretary, the Indian
Health Service(IHS)and its Acting Director, and the Acting Director of the Great Plains Area of
IHS (collectively the Government), seeking declaratory and injunctive relief due to the allegedly
inadequate health care provided by IHS to tribal members. Doc. 1. The Government now files a
'Under Fed. R. Civ. P. 25(d), the following public officials were substituted automatically as
proper parties: Thomas E. Price was sworn in as the Secretary of Health and Human Services on
February 10, 2017, and is substituted for Sylvia Mathews Burwell; Michael D. Weakhee is the
current acting director ofthe Indian Health Service and is substituted for Mary L. Smith; and James
Driving Hawk is the current acting director of the Great Plains Area Indian Health Service and is
substituted for Kevin Meeks.
motion to exclude the Plaintiffs' expert report (the Wame Report) and testimony of Dr. Donald
Wame pursuant to Federal Rule of Civil Procedure 7 and Federal Rules of Evidence 401 and 702.
Doc.66. The Tribe opposes the motion. Doc. 69. For the reasons stated below,the Government's
motion to exclude the Wame report is denied.
On April 28, 2016, the Tribe filed this suit, an action for declaratory and injiinctive relief,
with four counts. Doc. 1. Counts I and II ofthe Tribe's Complaint are based on a provision ofthe
Indian Health Care Improvement Act(IHCIA),25 U.S.C. § 1631(b)(1), which requires a one-year
notice to Congress before any IHS hospital, facility, or portion of such can be closed, in order to
evaluate the impact ofthe closure. Doc. 1 at^45-59. Count I alleges a violation of the IHCIA
directly, while Count II seeks judicial relief under the Administrative Procedures Act, 5 U.S.C. §
702, for the alleged violation of the IHCIA. Doc. 1 at
45-59. Count III alleges violations of
treaty ri^ts, other statutory obligations, and the trust responsibility obliging the Government to
provide health care services to the Tribe's members. Doc. 1 at
60-66. Count IV alleges
violations of equal protection and due process under the Fifth Amendment of the United States
Constitution stemming from the Rosebud IHS Hospital's emergency department closure. Doc. 1
at Yi 67-77. The Complaint seeks various declaratory and injunctive relief, as well as costs, fees,
and other relief deemed proper. Doc. 1 at 21-23.
This Court previously granted the Government's motion to dismiss Counts I and II because
the four-month closure ofthe Rosebud IHS emergency department was in fact temporary and thus
not actionable under IHCIA. Doc. 36. This Court also granted dismissal of Cormt IV of the
Complaint because the Tribe failed to state a viable claim for denial of equal protection and due
process. Doc. 36. This Court, however, denied the motion as to Count III. Doc. 36. Count III
The federal government has a specific, special trust duty, pursuant to the Snyder
Act, the IHCIA, the Treaty of Fort Laramie, and federal common law, to provide
health care services to the Tribe and its members and to ensure that health care
services provided to the Tribe and its members do not fall below the highest
possible standards of professional care.
Doc. 1 at T[61. Alleging that the Government has breached this trust duty, the Tribe seeks
declaratory reliefunder the Declaratory Judgment Act,28 U.S.C. § 2201. Doc. 1 atff 64-65. The
Tribe also seeks"a mandatory injunction requiring IHS to comply with its trust duties to the Tribe,
protect the Tribe's entitlement to healthcare services, and take sufficient measures to ensure that
health services are provided to members of the Tribe to permit the health status of Indians to be
raised to the highest possible level." Doc. 1 at^ 66. This Court analyzed Count III at some length,
reviewed applicable case law, and concluded that the existence of some duty to the Tribe and the
nature ofthe Tribe's allegations were sufficient to state a claim. Doc. 36 at 15-22.
The Government now seeks to exclude Dr. Wame's expert opinions from use at trial. Doc.
66 at 1. The Government argues that the Wame Report does not identify a specific treaty duty that
the Government has failed to perform and "does not proffer admissible evidence as to the
Plaintiffs' claim of causation." Doc. 66 at 1. Much of the Government's argument reads like an
argument for summary judgment on Count III, Doc. 67, which the Government subsequently has
filed, Doc. 80.
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of
Evidence. Under Rule 702, the trial judge acts as a "gatekeeper" screening evidence for relevance
and reliability. Daubert v. Merrell Dow Pharms.. Inc.. 509 U.S. 579, 589, 597 (1993); United
States V. Montgomerv. 635 F.3d 1074, 1089-90(8th Cir. 2011). Under Rule 702, a "witness who
is qualified as an expert by knowledge, skill, experience, training, or education" may give
testimony at trial 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 ofreliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
Fed. R. Evid. 702. "Rule 702 reflects an attempt to liberalize the rules governing the admission of
expert testimony." Arcoren v. United States. 929 F.2d 1235, 1239 (8th Cir. 1991). "The rule
clearly is one of admissibility rather than exclusion." Sappington v. Skyjack, Inc.. 512 F.3d 440,
448(8th Cir. 2008)(citation omitted). "The exclusion of an expert's 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)(cleaned up)(citation omitted).
District courts have discretion in determining whether to admit expert witness testimony
under Rule 702. UnitedHealth Grp. Inc. v. Exec. Risk Specialty Ins. Co., 870 F.3d 856, 865 (8th
Cir. 2017). Nonetheless, the proponent of expert testimony must establish its admissibility by a
preponderance of the evidence. Daubert, 509 U.S. at 592 n.lO; Adams v. Toyota Motor Corp.,
867 F.3d 903, 915 (8th Cir. 2017).
The Eighth Circuit has determined that a district court should apply a three-part test when
screening testimony under Rule 702.
First, evidence based on scientific, technical, or other specialized knowledge must
be useful to the finder offact in deciding the ultimate issue offact. This is the basic
rule of relevancy. Second, the proposed witness must be qualified to assist the
finder of fact. Third, the proposed evidence must be reliable or trustworthy in an
evidentiary sense, so that, if the finder of fact accepts it as true, it provides the
assistance the finder of fact requires.
Polski V. Ouiglev Corp., 538 F.3d 836, 839 (8th Cir. 2008)(citation omitted). The third part of
the test pertains to the three elements added to Rule 702 after Daubert and its progeny. Lauzon v.
Senco Products. Inc.. 270 F.3d 681,686 (8th Cir. 2001).
Part two and three of the Eighth Circuit screening test are largely xmdisputed. Under part
two of the test, Dr. Wame must be qualified to assist the finder of fact. Polski, 538 F.3d at 839.
"Rule 702 only requires that an expert possess knowledge, skill, experience, training, or education
sufficient to assist the trier of fact, which is satisfied where expert testimony advances the trier of
fact's understanding to any degree." Robinson v. GEICO Gen. Ins. Co.,447 F.3d 1096, 1100(8th
Cir. 2006)(cleaned up) (citation omitted). The Government does not challenge Dr. Wame's
qualifications,Doc.72 at 2, and he is in fact qualified. Dr. Wame received his Bachelor ofScience
in Kinesiology from Arizona State University in 1989, followed by a Doctor of Medicine from
Stanford University School of Medicine in 1995, and then a Master of Public Health in Health
Policy and Management from Harvard School of Public Health in 2002. Doc. 70-3 at 2. He has
attended postgraduate trainings, as well as received five different licensures and certifications.
Doc. 70-3 at 2. Dr. Wame currently serves as the Associate Dean of Diversity, Equality and
Inclusion,Director ofthe Indians Into Medicine Program,and Professor ofFamily and Community
Medicine at the University of North Dakota School of Medicine and Health Sciences. Doc. 70-3
at 3. His other professional experiences, to name a few,include being a Consultant to the American
Indian Health Department at Sanford Health, Director ofthe Office of Native American Health at
Sanford Health, Senior Policy Advisor and Executive Director of the Great Plains Tribal
Chairmen's Health Board, Health Policy Research Director at Inter Tribal Council of Arizona,and
Senior Policy Consultant,President, and CEO for American Indian Health Management & Policy.
Doc. 70-3 at 3. Dr. Wame has twenty peer-reviewed publications that he authored or co-authored
on Native American health issues. Doc. 70-3 at 4-5. He also has authored peer-reviewed policy
briefs and book chapters on these issues. Doc.70-3 at 5-6. Lastly, Dr. Wame serves or has served
on numerous boards in different capacities, including being a member of the Health Disparities
Subcommittee for the Center for Disease Control and Prevention and a member of the Board of
Directors for Rapid City Regional Health. Doc. 70-3 at 6. Dr. Wame is qualified to assist the
finder of fact under part two ofthe Eighth Circuit test.
Under part three, the proposed evidence must be reliable or trustworthy in an evidentiary
sense, so that, ifthe finder offact accepts it as tme,it provides assistance to the finder offact. The
third part of the Eighth Circuit's test pertains to three elements added to Rule 702 after Daubert
and its progeny. Lauzon. 270 F.3d at 686. These include that "(1) the testimony is based upon
sufficient facts or data,(2)the testimony is the product of reliable principles and methods, and(3)
the witness has applied the principles and methods reliably to the facts of the case." Id (quoting
Fed. R. Evid. 702). The Government specifically does not challenge Dr. Wame's "credibility ...
or his ability to present information on the status of Native American health." Doc. 72 at 2. Dr.
Wame's expert opinion is reliable in an evidentiary sense. Dr. Wame bases his opinion on publicly
available medical and scientific literature relating to the health status of American Indians and
Alaska Natives, including disparities between those populations and other populations in the
United States. Much of the public information comes fi om the HHS, the IHS, the Centers for
Disease Control and Prevention, and the Center for Medicare and Medicaid Services, including
reports by the Office of Inspector General of the HHS, and the United States Government
Accountability Office. Doc. 70-1 at 5. His opinion consists of reading and analyzing these
materials and then using his experience, education, skill, and knowledge to apply it to the facts at
The Government only explicitly challenges admissibility of Dr. Wame's testimony under
the first part ofthe test. Doc. 67 at 10("Here, the Government is basing its challenge on the first
factor: whether the evidence is useful to the finder of fact.")- Both parties agree that the relevant
issue in this case is whether the health care services provided to the Tribe are sufficient to meet
the Government's treaty and statutory duties to the Tribe. Doc.67 at 10; Doc.69 at 2. Dr. Wame's
expert opinion is relevant for determining this issue. Expert testimony is relevant and helpful to
the jury if it concerns matters beyond the general knowledge of average individuals. ^United
States V. Shedlock. 62 F.3d 214, 219 (8th Cir. 1995). Dr. Wame's opinion concerns matters
beyond the general knowledge of average individuals. Dr. Wame's expert opinion is that the care
provided at the Rosebud Service Unit is not sufficient to either raise the health status ofthe Indians
served there to the highest possible level or eliminate the significant health disparities suffered by
members of the Tribe. Doc. 70-1 at 20. The Government is correct in arguing that Dr. Wame's
report does not offer an opinion how and whether that in fact is the scope of the Government's
duty, however,his opinion need not do so. Indeed,as a medical doctor, he probably is not qualified
to testify to the legal duty owed by the Government to the Tribe or the precise source of that legal
duty. Nevertheless, his opinion is relevant to whether or how any duty has been breached; the
Government has some duty to the Tribe to provide health care, and Dr. Wame's opinions on what
that care has been is relevant.
The Government argues that "[njothing in Dr. Wame's proffered report is relevant to any
specific duty owed by the Defendants [and does not proffer admissible evidence that would'
substantiate Plaintiffs' claim ofcausation], and therefore, the Wame report does not assist the trier
of fact in this case as is required under the first part of the Daubert test." Doc. 67 at 7,9—10. The
Government seeks to exclude Dr. Wame's expert opinion because, in sum, the opinion does not
prove every element of the Tribe's case. ^Doc. 67. The Government's arguments about the
specific duty are more properly made in a motion for summary judgment, not in a motion to
exclude testimony ofan expert pursuant to Federal Rule of Evidence 702.
After reviewing the parties' briefs, the expert report, and the related filings, and after
weighing all the factors, this Court finds that Dr. Wame is qualified, his opinions are relevant to
the allegations of Count III ofthe Complaint, and his opinions are sufficiently reliable. The Tribe
at this point has carried its burden of establishing that Dr. Wame's testimony is admissible by a
preponderance of the evidence. While admissible, the Government is certainly free to attack Dr.
Wame's testimony at trial. See Kuhn v. Wveth,Inc.,686 F.3d 618,625(8th Cir. 2012)
cross-examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible evidence."
(quoting Daubert, 509 U.S. at 596)). Any determination about the specific duty owed by the
Government to the Tribe may prompt limitation of some of Dr. Wame's opinions. But his
testimony will not be altogether excluded based on the arguments put forth by the Government.
For the reasons stated above, it is hereby
ORDERED that Defendants' Motion to Exclude the Wame Report, Doc. 66,is denied.
day of July, 2019.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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