Stella et al v. Davis County et al

Filing 217

MEMORANDUM DECISION granting 202 Motion to Appoint Expert - the court GRANTS Plaintiffs' motion to substitute expert Nurse Schultz with Patricia McQuillen, RN. However, Nurse McQuillen may not testify as to whether the alleged failure to provide adequate medical care stemmed from discriminatory prejudice. Signed by Judge Jill N. Parrish on 07/13/2022. (jl)

Case 1:18-cv-00002-JNP-DBP Document 217 Filed 07/13/22 PageID.4166 Page 1 of 4

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

Plaintiffs,

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

MEMORANDUM DECISION AND
ORDER ON PLAINTIFFS’ MOTION TO
SUBSTITUTE EXPERT
Case No. 1:18-cv-00002-JNP-DBP
District Judge Jill N. Parrish
Magistrate Judge Dustin B. Pead

Defendants.

On July 7, 2022, Plaintiffs moved this court to permit a substitute expert for Debra
Schultz. See ECF No. 202. Nurse Schultz recently informed Plaintiffs that she was no longer
available to provide expert testimony due to her advanced cancer. In lieu of Nurse Schultz’s
testimony, Plaintiffs moved the court to substitute Patricia McQuillen as an expert.
On July 11, 2022, Defendants lodged their objection to Plaintiffs’ motion to substitute an
expert. Defendants argue that Nurse McQuillen is not qualified under Rule 702 and that Nurse
McQuillen’s testimony expands beyond that of Nurse Schultz. For the following reason, the
court OVERRULES Defendants’ objections and GRANTS Plaintiffs’ motion to substitute expert.
As an initial matter, Nurse McQuillen qualifies as an expert on the relevant topic.
“Federal Rule of Evidence 702 requires a district court to assess proffered expert testimony to
ensure it is both relevant and reliable.” United States v. Avitia-Guillen, 680 F.3d 1253, 1256 (10th
Cir. 2012). As part of this inquiry, “[t]he district court generally must first determine whether the
expert is qualified ‘by knowledge, skill, experience, training, or education’ to render an opinion.”

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Id. (citations omitted). Defendants argue that Nurse McQuillen is not qualified as an expert
because she has no medical experience in a correctional setting. But Nurse McQuillen’s resume
indicates that she does, indeed, have experience nursing in the correctional setting. For instance,
she served as a per diem registered nurse at the Santa Maria Juvenile Hall and as a registered
nurse at the San Luis Obispo County Jail. See ECF No. 208-3 at 2-3. And Nurse McQuillen has
experience as a facilities auditor for Santa Barbara County Public Health and Probation
Departments. Id. at 2. Moreover, a medical professional need not necessarily have experience in
a correctional setting to qualify as an expert on whether adequate medical care was provided. For
instance, the question of whether it is reasonable to take a patient’s pulse after a fall does not
depend on whether the patient is treated in a correctional setting. Accordingly, the court finds
that Nurse McQuillen qualifies as an expert.
Defendants next argue that Nurse McQuillen’s testimony inappropriately extends beyond
that of Nurse Schultz’s. “Substitute experts, while not bound to the testimony of the expert they
are replacing, cannot meaningfully change their testimony from that of the previous expert.”
Stratton v. Thompson/Ctr. Arms, Inc., No. 4:18-cv-40, 2022 WL 2119346, at *5 (D. Utah June
13, 2022). “In other words, the testimony of the substitute expert must be ‘substantially similar’
to that of the original expert.” Id. (citation omitted). At oral argument, Defendants pointed to two
specific ways in which they allege that Nurse McQuillen’s opinion differs from Nurse Schultz’s.
First, Defendants argued that Nurse Schultz indicated that Anderson provided “virtually
no medical care” to Miller whereas Nurse McQuillen indicated that Anderson provided “no
medical care” to Miller. Defendants argue that this discrepancy is a substantial difference
between the two opinions. The court disagrees. This difference between the two opinions is
merely semantic. As an initial matter, Nurse Schultz uses the two phrases interchangeably in her

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expert report. She states that “[i]t is in my professional opinion that virtually no medical care was
administered by Nurse Marvin Anderson to Heather Miller.” ECF No. 105-1 at 3. But just three
sentences later, Nurse Schultz states that she believes that “by providing no medical care to
Heather Miller while incarcerated at the Davis County Jail,” Anderson “contributed to her early
and untimely death.” Id. Accordingly, contrary to Defendants’ representations, Nurse Schultz did
offer the opinion that jail staff provided “no medical care.” Moreover, her interchangeable use of
the two phrases suggests that the difference is semantic, not substantive. And the court agrees.
The difference between “no medical care” and “virtually no medical care” is simply not material,
and certainly does not represent a meaningful change in the expert testimony.
Defendants argue that allowing Nurse McQuillen to testify to this opinion will cause
them substantial prejudice. But when pressed at oral argument, Defendants struggled to articulate
any prejudice they would face, particularly given the fact that Defendants elected not to depose
Nurse Schultz. Because Nurse Schultz also stated that jail staff provided “no medical care,” it is
unclear why Nurse McQuillen’s use of the same phrase would suddenly cause Defendants great
prejudice or why Defendants would need to depose Nurse McQuillen, but not Nurse Schultz.
Second, Defendants argue that Nurse McQuillen’s opinion that “the disregard of the
Registered Nurse to initiate fundamental medical care appeared to be related to a discriminatory
prejudice noted in the testimony of M. Anderson, RN” expands Nurse McQuillen’s opinion
beyond that of Nurse Schultz. ECF No. 208-1 at 5. Here, the court agrees. Plaintiffs argue that
Nurse Schultz’s statement that Anderson’s actions “show complete disregard for Heather’s
wellbeing, and lack of sound nursing judgment” advances substantially similar testimony. See
ECF No. 105-1 at 3. But while Nurse Schultz’s expert report references a disregard for Miller’s
wellbeing, it never raises the idea that such disregard stemmed from a discriminatory prejudice

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on the part of jail staff. Accordingly, the court strikes this portion of Nurse McQuillen’s
testimony.
In sum, the court GRANTS Plaintiffs’ motion to substitute expert Nurse Schultz with
Patricia McQuillen, RN. However, Nurse McQuillen may not testify as to whether the alleged
failure to provide adequate medical care stemmed from discriminatory prejudice.

DATED July 13, 2022.

BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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