Stella et al v. Davis County et al

Filing 197

MEMORANDUM DECISION AND ORDER granting in part and denying in part 182 Motion for Amended Scheduling Order ; denying 182 Motion Reconsider Precluding Evidence; denying 185 Motion in Limine; granting in part and denying in part 186 Motion in Limine; denying 187 Motion in Limine; granting in part and denying in part 188 Motion in Limine. Signed by Judge Jill N. Parrish on 7/1/22. (alf)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CYNTHIA STELLA and the ESTATE OF
HEATHER MILLER,
Plaintiffs,

v.

DAVIS COUNTY, SHERIFF TODD
RICHARDSON, MAVIN ANDERSON, and
JAMES ONDRICEK,
Defendants.

MEMORANDUM DECISION AND
ORDER ON DEFENDANTS’ MOTIONS
IN LIMINE AND MOTION TO
RECONSIDER
Case No. 1:18-cv-00002-JNP-DBP
District Judge Jill N. Parrish
Magistrate Judge Dustin B. Pead

On June 7, 2022 the court granted both parties the opportunity to file additional motions in
limine in order to resolve evidentiary issues before trial, where possible. Defendants filed four
motions in limine pertaining to the following topics: (1) Todd Vinger’s (“Vinger”) opinions, (2)
Dr. Kenneth Starr’s (“Dr. Starr”) opinions, (3) evidence of loss of consortium claims, and (4)
evidence of Plaintiffs’ loss of income claim. See ECF Nos. 185, 186, 187, 188. Defendants also
filed a motion to amend the scheduling order and to reconsider. See ECF No. 182. The motion
requested that the court amend the scheduling order to permit an additional expert and reconsider
a prior order on several motions in limine that limited evidence of Miller’s mental health diagnoses
and drug use in order to permit the expert to offer opinions on those topics. The court rules as
follows.
I.

TODD VINGER’S OPINIONS [ECF No. 188]
Defendants move the court to preclude Vinger, Plaintiffs’ corrections expert, from

providing any opinions at trial. However, in their brief Defendants identify and argue only five

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opinions that they deem objectionable. Accordingly, the court addresses only these enumerated
opinions, not all of Vinger’s opinions. The court states each allegedly objectionable opinion in the
heading and then addresses it below.
A.

Defendants failed to secure the “crime scene” because the cells in the Kilo and
Lima units that Ms. Miller had occupied were cleaned after her death.

Defendants argue that this opinion is prejudicial because it leads the jury to conclude that
Defendants must have engaged in criminal conduct. Plaintiffs respond that this statement is
relevant because it explains why there is no evidence from Miller’s cell.
The court agrees with Plaintiffs. As an initial matter, Vinger’s report does not suggest any
criminal conduct. Indeed, the term “crime scene” never appears in the report. Rather, Vinger notes
that staff failed to “secur[e] the scene for an In-Custody Death review and investigation.” ECF No.
188-1 at 13.
Vinger does note the fact that Sergeant Wall was informed that he should secure the scene
but “failed to secure any areas [and] later advised Weber County Investigators that all areas had
been cleaned.” Id. But that fact does not give rise to an inference of criminal conduct. Rather,
Vinger’s report merely notes the failure to secure as one piece of evidence he considered in
concluding that the facility did not conform with common practices for response and treatment of
a patient who falls from a top bunk. Accordingly, the court DENIES Defendants’ motion as to this
statement.
B.

There is a “long term and widely known problem with individuals falling from
bunks cause [sic] injury and now death,” which Defendants failed to ameliorate.

Defendants argue that this statement is contrary to the evidence and to the court’s prior
rulings. Defendants cite to two sentences from a prior order from the court, see ECF No. 60, that
Defendants claim contradict Vinger’s statement. Specifically, Defendants cite the court’s statement

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that “there is no evidence that inmates suffered significant injuries from these falls” and that “[t]he
jail had a policy in place to limit bunk falls.” Id. at 27.
But the court’s prior order does align with Vinger’s testimony. Just before the statements
cited by Defendants, the court also wrote that “[t]here is evidence that inmates fell from a top bunk
about once a month.” Id. This comports with Vinger’s observation that the jail had a “long term
and widely known problem with individuals falling from the top bunks.” ECF No. 188-1 at 7. And
there is evidence that at least one inmate suffered an injury from those falls. See, e.g., ECF No. 312 at 12-13 (“[A] kid fell off the bed and slipped, because he was wearing socks, and split his ear
open.”). Finally, it is undisputed that Miller died following her fall, which substantiates the final
portion of the quoted material.
If Defendants disagree with Vinger’s conclusions, they can explore those disagreements on
cross examination. But the court’s prior order does not preclude Vinger’s testimony on this issue.
Accordingly, the court DENIES Defendants’ motion as to this statement.
C.

Following her fall in the Kilo unit, Heather Miller should have been moved to
the medical unit where there was an open bed and she would have been
monitored; whereas she was housed in the Lima unit where she only received a
“security check” “once an hour.”

Defendants argue that the evidence contradicts these conclusions because the evidence
shows that Miller was on a thirty-minute medical watch. Not true. When asked if he knew whether
Miller was assigned to have thirty-minute medical checks while in Lima, Officer Lloyd testified,
“I don’t remember if we put her one on her or not.” ECF No. 31-2 at 32. And later when asked
whether he did a medical check at 7:00, 7:30, and 8:00, Officer Lloyd responded that while “[t]hat’s
something we typically do” he “do[es]n’t remember doing all those checks.” ECF No. 31-2 at 64.
Accordingly, the evidence does not clearly contradict these conclusions and the court
DENIES Defendants’ motion as to this statement.
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D.

The medical staff was “indifferent” to Miller’s medical condition and in the
words of Greg Rogers’ [sic] “lazy.”

Defendants argue that this conclusion is contrary to the evidence and to the court’s prior
rulings. Defendants do not explain what specific evidence contradicts this statement. And, because
the court has allowed this case to proceed to trial, it has determined that there is at least some
evidence that the medical staff failed to tend to Miller’s medical condition.
Rather, Defendants’ citations to the court’s prior orders highlights their concern that Vinger
will use the specific terms “deliberate indifference” or “lazy.” In its prior order, the court prohibited
Defendants’ expert, Dr. Tubbs, from opining that the nurses at Davis County jail were not
deliberately indifferent. Because “[t]he ultimate issue in this case is whether Defendants acted with
deliberate indifference in violation of the Eighth Amendment,” the court held that Dr. Tubbs could
“not employ terminology that suggests a legal conclusion.” ECF No. 59 at 2-3. For the same
reasons, Vinger also cannot employ such terminology. Just as with Dr. Tubbs, Vinger “can still
testify as to the opinions that form the basis for his view on the ultimate question,” but he may not
use the terminology of “deliberately indifferent” or “indifferent” during his testimony.
As to Rogers’ comment that he thinks the nurses at Davis County jail are “lazy,” the court
has already ruled on this issue multiple times. Plaintiffs already stipulated that they “will not ask
Clerk Rogers whether he thinks the nurses are lazy.” ECF No. 150 at 2 (quoting ECF No. 131 at
1-2). Plaintiffs cannot smuggle that same comment in via Vinger. However, Vinger may testify to
the underlying observations that led to Clerk Rogers’ comment and any conclusions he draws from
that evidence.
Accordingly, the court GRANTS Defendants’ motion as to these statements. Vinger may
not use the terminology “deliberate indifference” or “lazy” when testifying, although he may

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testify as to opinions that form the basis for his view that the jail staff acted with indifference or
laziness.
E.

The Jail failed to follow its own Policies/Protocols, and/or was otherwise
noncompliant with the National Commission on Correctional Health Care
(NCCHC).

Finally, Defendants argue that this conclusion is contrary to the court’s prior rulings and
Tenth Circuit precedent. Defendants cite to ECF No. 151, in which the court held that Plaintiffs
could not offer evidence regarding Davis County Jail’s decision to reinstate written medical
protocols following Miller’s death. The court’s opinion did not address whether an expert could
compare the jail’s (or its employee’s) actions to its own policies or NCCHC policies. Accordingly,
this opinion is not contrary to this court’s prior ruling.
Defendants also include a conclusory statement that Vinger’s conclusion violates Tenth
Circuit precedent. Although Defendants cite a single, unreported case, they provide no analysis as
to its applicability. In Johnson v. Davis County, No. 21-4030, 2022 WL 830202, *5 n.6 (10th Cir.
Mar. 21, 2022), the Tenth Circuit held that national standards did not establish deliberate
indifference, in part because the standards “do not establish the constitutional minima; rather, they
establish goals recommended by the organization in question.” And, of course, Vinger’s conclusion
that the jail did not abide by NCCHC standards cannot itself establish deliberate indifference. The
Tenth Circuit did not, however, comment on whether an expert can provide testimony as to whether
a jail’s actions complied with NCCHC standards. Accordingly, Vinger’s opinion does not run afoul
of Tenth Circuit precedent.
II.

DR. KENNETH STARR’S OPINIONS [ECF No. 187]
Defendants move the court to preclude Dr. Starr from testifying about the autopsy

photograph of Miller’s ruptured spleen and other matters related to Miller’s ruptured spleen.

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Defendants complain that to the extent the court prohibited Dr. Tubb’s testimony regarding his
opinions as to Miller’s alleged methamphetamine withdrawal, it should also prohibit Dr. Starr’s
opinions as to Miller’s ruptured spleen. But the reports differ in material ways.
As the court noted in its prior order, Federal Rule of Civil Procedure 26(a)(2)(B) requires
that a party must submit each retained expert’s written report, which must contain “(i) a complete
statement of all opinions the witness will express and the basis and reasons for them; [and] (ii) the
facts or data considered by the witness in forming them.” “Such disclosure is necessary to allow
the opposing party ‘a reasonable opportunity to prepare for effective cross examination and
perhaps arrange for expert testimony from other witnesses.’” Jacobsen v. Deseret Book Co., 287
F.3d 936, 953 (10th Cir. 2002) (citation omitted).
Here, Dr. Starr clearly states his opinion that “[h]ad Ms. Miller’s blunt abdominal injuries
been recognized earlier, it is [his] professional opinion that this condition would have been
surgically treated and she would have a very high likelihood of survival with no resultant
sequelae.” ECF No. 187-1 at 2. Indeed, it is clear from his report that Dr. Starr intends to offer a
comprehensive expert explanation of splenic injuries and how rapid care can affect likely
outcomes, and how that could have impacted Miller’s situation. In fact, the whole point of Dr.
Starr’s report is to address splenic injuries, including Miller’s splenic injury, and their treatment.
In contrast, the summary of opinions in Dr. Tubb’s declaration does not include any discussion of
methamphetamine withdrawal.
Moreover, Dr. Starr cites the facts and data relied upon in forming his opinion, including
the autopsy report that identified about “1.3 liters of blood” in the abdomen and the “near complete
transection of the spleen,” id., the fact that blood loss leads to changes in vital signs, and the fact
that splenic injuries are readily treatable at most emergency departments. Dr. Starr further notes

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that he reviewed records that directly describe and document Miller’s splenic injuries, including
“the EMS records, the ER record, [and] the autopsy report” in reaching his opinions. Id. at 1.
And, most importantly, as Plaintiffs points out, the court put Defendants on notice as to the
deficiencies regarding Dr. Tubb’s opinion on methamphetamine withdrawal symptoms, and
Defendants chose not to supplement Dr. Tubb’s report. In contrast, Defendants waited until the eve
of trial to raise Rule 26 concerns regarding Dr. Starr’s report, despite having the Starr report for
years. Defendants’ decision to wait several years—until the eve of trial—to raise this concern
suggests that Defendants’ motion reflects tactical considerations rather than a concern for lack of
information regarding Dr. Starr’s testimony.
Accordingly, the court DENIES Defendants’ motion as to Dr. Starr’s opinions.
III.

LOSS OF CONSORTIUM CLAIMS [ECF No. 186]
Defendants’ motion contains two parts: Defendants move the court to (1) bar any evidence

related to Stella’s claim for loss of consortium with her daughter, Miller, as well as to (2) bar any
evidence regarding a loss of consortium claim by Miller’s estate with any family or friends outside
of Stella.
A.

Stella’s Loss of Consortium Claim

Defendants argue that caselaw from the Utah Supreme Court precludes a parent from
recovering for loss of consortium with an adult child. Plaintiffs counter that the cases Defendants
cite deal only with an independent cause of action for loss of consortium with an adult child, not
the damages available for wrongful death of an adult child.
First, Defendants point to Boucher for the proposition that parents have no claim for the
loss of consortium arising out of the injury or death of an adult child. But the issue identified by
the Utah Supreme Court in Boucher was “does Utah recognize a claim of loss of filial consortium

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that allows parents to recover for the loss of their adult child’s society and affection caused by the
child’s nonfatal injuries.” Boucher ex rel. Boucher v. Dixie Med. Ctr., 850 P.2d 1179, 181 (Utah
1992) (emphasis added). In its discussion of the Bouchers’ filial consortium claim, the Utah
Supreme Court noted that it “view[s] wrongful death cases as distinguishable from consortium
cases” and recognized that “Utah allows recovery for the loss of society and affection in wrongful
death cases,” id. at 1186, even while the court rejected filial consortium claims in the context of
nonfatal tortious injuries. Accordingly, Boucher does not control the outcome of this motion and,
if anything, suggests that Stella does have a cause of action for loss of consortium with an adult
child who suffered fatal injuries.
Next, Defendants point to Benda v. Roman Catholic Bishop of Salt Lake City, 384 P.3d 207
(Utah 2016). In Benda, the Utah Supreme Court adopted a cause of action allowing parents to
recover for loss of consortium due to tortious injury to their minor child. Id. at 210. But, again,
Benda deals solely with a nonfatal injury, not a wrongful death action. And the Utah Supreme
Court again recognized that “Utah law already recognizes a right to recovery for loss of filial
consortium in wrongful death cases.” Id. at 212.
The distinction between a fatal and nonfatal injury is critical. In dissenting from the
majority’s decision on loss of consortium claims in Boucher, Justice Stewart noted that “a parent’s
cause of action for the loss of the companionship, society, and affection (i.e., consortium) of a child
as a result of a wrongful death has been deemed so important in Utah that it is protected by our
Constitution.” Boucher, 850 P.2d at 1187 (Stewart, J., concurring in part and dissenting in part).
Indeed, the Utah Constitution provides that “[t]he right of action to recover damages for injuries
resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any
statutory limitation, except in cases where compensation for injuries resulting in death is provided

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for by law.” UTAH CONST. art. XVI, § 5. And as the Utah Supreme Court has previously noted, the
incorporation of the wrongful death cause of action into the Utah Constitution reflects “the
perceived importance of the right and . . . a desire to remove any uncertainty in our state about its
viability.” Bybee v. Abdulla, 189 P.3d 40, 45 (Utah 2008).
Finally, in noting that Utah allows for loss of consortium claims in the wrongful death
context, the Utah Supreme Court cited to Jones v. Carvell, 641 P.2d 105 (Utah 1982), a case to
which Plaintiffs also draw the court’s attention. In contrast with the cases cited by Defendants,
Jones stemmed from a wrongful death claim. There, the Utah Supreme Court noted that, in a
wrongful death action, “recovery may be had for ‘the loss of affection, counsel and advice, the loss
of deceased’s care and solicitude for the welfare of his or her family and the loss of the comfort
and pleasure the family of deceased would have received.’” Id. at 108 (citation omitted). And,
critically, the Utah Supreme Court held that “[s]uch damages are not limited to the period during
which the deceased would have been a minor.” Id. (emphasis added). Accordingly, there is no
doubt that Utah law permits Stella to bring a loss of consortium claim for loss of the
companionship, society, and affection of Miller.
B.

Miller’s Loss of Consortium Claim

As to the second point, Defendants argue that Plaintiffs never disclosed that they intended
to assert a claim for Miller’s loss of consortium with other family members or friends beyond
Miller’s mother, Stella. Plaintiffs concede this point and agree that “[t]he Estate’s claim for loss of
consortium will be limited to her mother Cynthia Stella.” ECF No. 192 at 1-2.
Defendants next argue that any loss of consortium claim by Miller’s estate must be limited
to Stella’s life expectancy (30.82 years) instead of Miller’s life expectancy (53.93 years).
Defendants’ position is grounded in reality because Stella would predecease Miller under the

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average life expectancies for each woman. Plaintiffs concede as much, stating that “Plaintiffs also
agree that [the estate’s loss of consortium claim as to Stella] should be limited by Cynthia Stella’s
life expectancy” ECF No. 192 at 3. The court therefore orders that any loss of consortium claim
by Miller’s estate be so limited.
IV.

LOSS OF INCOME CLAIM [ECF No. 185]
Finally, Defendants move the court to preclude Plaintiffs from offering evidence related to

a claim for loss of future income by Miller’s estate. Defendants’ motion stems from their assertion
that Plaintiffs failed to disclose the damages computation for Miller’s estate’s loss of income claim,
as required by Rule 26.
Rule 26(a) requires that parties make certain initial disclosures, including disclosing “a
computation of each category of damages claimed by the disclosing party.” FED. R. CIV. P.
26(a)(1)(A)(iii). Rule 26(e) imposes an ongoing duty to supplement or correct disclosures made
under Rule 26(a). Finally, Rule 37(c)(1) provides for the exclusion of information not disclosed as
required by Rules 26(a) and (e), “unless the failure was substantially justified or is harmless.”
Plaintiffs concede that their initial Rule 26 disclosures did not specify a separate loss of
income claim. Indeed, Plaintiffs did not specifically identify a loss of income computation until
their second supplemental disclosure on March 28, 2022. Accordingly, the question for the court
is whether Plaintiffs’ failure to supplement their Rule 26 disclosures was substantially justified or
is harmless. The court holds that the failure is harmless.
Defendants have long been on notice that Plaintiffs intended to seek loss of income
damages. Indeed, Defendants specifically asked about a loss of income claim in their expedited
discovery and Plaintiffs clearly stated, on January 13, 2022, that they intended to bring a loss of
income claim and outlined their proposed formula. See ECF No. 184 at 3-4. Moreover, in their

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January 28, 2022 brief, Defendants noted that “[a]nother category of damages the Estate of Heather
Miller is seeking are loss of income damages ‘based off Miller earning minimum wage of $7.25
for 40 hours over 50 weeks ($15,080 a year) over the remainder of her working life and until the
retirement age of 70 (41 years).’” ECF No. 127 at 5 (citation omitted). Accordingly, had
Defendants wanted to retain an expert to explore Miller’s earning capacity, they had months to do
so. Moreover, well before January 2022, Defendants conducted discovery, including requesting
Miller’s tax returns, that indicated that Defendants understood Miller’s income to be at issue in
this case. And, more recently, the court freely provided Defendants the opportunity to conduct
additional expedited discovery, including issuing additional discovery requests and conducting a
deposition. See ECF No. 104. Accordingly, the court finds Plaintiffs’ Rule 26 neglect harmless.
Defendants also complain that Plaintiffs failed to designate an expert regarding loss of
income. But Defendants provide no citation to a case or rule requiring such an expert opinion.
Indeed, other courts have declined to require an expert and have instead permitted documentary
evidence alone to establish loss of future earnings. See, e.g., Palmer v. Owners Ins. Co.,
No. 18-cv-1953, 2019 WL 7370372, at *7 (D. Colo. Nov. 6, 2019) (permitting plaintiff’s testimony
and historical wage documents to establish future income loss). Accordingly, the court DENIES
Defendants’ motion in limine as to evidence of the loss of income claim.
However, this motion dovetails with Defendants’ motion to amend the scheduling order
and reconsider the court’s order precluding evidence of Heather Miller’s psychological/mental
conditions. See ECF No. 182. In that motion, Defendants ask the court to permit designation of
Richard Hoffman as an expert on Plaintiffs’ loss of income claim. Defendants represent that
Hoffman will opine as to the reduction in damages due to Miller’s personal consumption and the

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discount rate to present value, as well as his opinion that Miller’s bipolar disorder, ADHD, and
drug use would have had a significant detrimental effect upon her work-life earnings.
An expert must be qualified to give an opinion on a topic. See United States v. Nacchio,
555 F.3d 1234, 1241 (10th Cir. 2009) (en banc) (“[T]he district court generally must first determine
whether the expert is qualified ‘by knowledge, skill, experience, training, or education’ to render
an opinion.” (quoting FED. R. EVID. 702)). Hoffman is an accountant. Accordingly, he is qualified
to offer an opinion on personal consumption estimates and the discount rate to present value. See
Johnson v. Nault, No. 4:20-cv-60, 2022 WL 2191662, at *1 (D. Utah June 17, 2022) (“Utah courts
require future damages to be discounted to present value.”) see also id. at * 2 (noting that “another
court in the Tenth Circuit held it is the defendant’s burden, not the plaintiff’s, to produce evidence
to establish the discount rate”). Moreover, Plaintiffs’ delay in identifying their loss of income claim
justifies the late addition of an expert opinion as to the discount rate and personal consumption
estimates. But Hoffman’s status as an accountant simply does not entitle him to opine on the effects
of mental health and drug usage. Indeed, his opinions on the subject appear to essentially
recapitulate several studies from drug addiction and mental health experts—of which Hoffman is
not one. Accordingly, Hoffman may opine as to the discount rate and personal consumption amount
but not the effect of drug use and mental health on earning capacity.
Defendants also ask the court to reconsider its order on Plaintiffs’ motions in limine
regarding Miller’s mental health diagnoses and substance abuse. In that order, the court excluded
evidence of Miller’s mental health diagnoses under Rule 403. ECF No. 152 at 6-7. It permitted
evidence of Miller’s substance abuse but stated that “while the court will permit sufficient evidence
of drug use necessary for Defendants’ arguments related to damages, the court will not permit
cumulative evidence of Miller’s drug use.” Id. at 8.

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Nothing that Defendants have submitted alters the court’s opinion. As it already stated, the
court will not permit evidence regarding Miller’s mental health diagnosis because Defendants have
not submitted evidence tying Miller’s specific mental health diagnoses to a shortened life
expectancy or lowered earning potential. Nor will it permit cumulative and prejudicial evidence
about Miller’s drug use. However, to the extent that Plaintiffs elect to move forward with a loss of
income calculation that assumes a consistent income, then they open the door to arguments
regarding the effect of drug use on earning capacity, as the court noted in its prior order.
Specifically, Defendants may argue in closing that the jury can take into account Miller’s drug use
in evaluating her earning capacity.

DATED July 1, 2022.

BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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