Aus et al v. Salt Lake County et al

Filing 126

MEMORANDUM DECISION AND ORDER denying 82 The § 1983 Defendants motion for summary judgment; granting in part and denying in part 88 Wellcons motion in limine; denying 88 Wellcons motion for summary judgment ; denying [9 7] The § 1983 Defendants motion to strike ; denying as moot 104 Wellcons motion to strike; granting in part and denying in part 85 The § 1983 Defendants motion in limine. The parties are ORDERED to meet and confer and, within 28 days of the date of this order, propose an amended scheduling order containing new deadlines for expert designation, expert discovery, and any motions seeking to exclude expert testimony. Signed by Judge Jill N. Parrish on 7/10/2019. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JASON AUS, JANIS AUS, and the ESTATE
of JEREMY AUS,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER

v.
SALT LAKE COUNTY, JAMES WINDER,
ROSIE RIVERA, WELLCON, INC., and John
and Jane Does 1-10,
Defendants.

Case No. 2:16-cv-0266
District Judge Jill N. Parrish

I.

BACKGROUND

On the evening of November 16, 2013, ten days after being processed into the Salt Lake
County Jail (the “Jail”), Jeremy Aus experienced multiple seizures and died in his bed. This
action followed, brought by Mr. Aus’ estate; his mother, Janis Aus; and his brother, Jason Aus.
The operative second amended complaint asserts two causes of action: (1) a civil rights claim
under 42 U.S.C. § 1983 against Salt Lake County (the “County”), the County’s then-Sheriff,
James Winder (in his individual and official1 capacities), and Wellcon, Inc. (“Wellcon”), a
private corporation that contracts with the County to provide healthcare practitioners for

1

After this suit was initiated, Mr. Winder was replaced as Salt Lake County Sheriff by Rosie
Rivera. The parties have failed to take account of Rule 25(d), which declares that “when a public
officer who is a party in an official capacity . . . ceases to hold office while the action is pending.
. . . [t]he officer’s successor is automatically substituted as a party.” Fed. R. Civ. P. 25(d). Thus,
Ms. Rivera is the appropriate public officer against whom to maintain plaintiffs’ official capacity
suit. Plaintiffs’ individual capacity suit against Mr. Winder is unaffected by his departure from
office.

purposes of delivering healthcare services to the Jail’s inmate population; and (2) a state law
medical malpractice claim against Wellcon.2
Before the court are five motions filed by defendants: (1) a motion for summary
judgment on plaintiffs’ § 1983 claim filed by the County, Mr. Winder, Ms. Rivera, and Wellcon
(collectively, the “§ 1983 Defendants”); (2) a motion in limine filed by the § 1983 Defendants;
(3) a motion in limine and motion for summary judgment on plaintiffs’ medical malpractice
claim filed by Wellcon; (4) a motion to strike certain exhibits appended to plaintiffs’ opposition
to the § 1983 Defendants’ motion for summary judgment filed by the § 1983 Defendants; and (5)
a motion to strike an affidavit appended to plaintiffs’ opposition to Wellcon’s motion in limine
filed by Wellcon.
A. STATEMENT OF FACTS3
1. Jeremy Aus’ Arrest and Processing into the Jail
Jeremy Aus was arrested on November 6, 2013 after a physical altercation between Mr.
Aus and his brother—both intoxicated—in which Mr. Aus apparently inflicted knife and/or
sword wounds on his brother. Mr. Aus was charged with aggravated assault, and processed into
the Jail. As is the Jail’s practice at booking, he underwent a comprehensive nurse examination.
As part of that procedure, Mr. Aus was asked to list his current prescription medications. He
reported that he was prescribed klonopin4 for anxiety, atenolol and triamterene for hypertension
The Salt Lake County District Attorney’s office represents all defendants in connection with
the § 1983 claim. Wellcon has retained separate counsel to defend plaintiffs’ medical malpractice
claim.
2

3

The court recites the record facts most favorable to plaintiffs as non-movants, resolving all
factual disputes and drawing all reasonable inferences in their favor.
4

Klonopin is the brand name for clonazepam, a long-acting benzodiazepine that has a 30-40hour half-life (the period of time it takes to reduce the amount of a substance in an individual’s
body by half). Among other conditions, benzodiazepines are used to treat anxiety and panic
disorders.
2

(high blood pressure), and the muscle relaxer tizanidine for back pain. Jail staff subsequently
verified these prescriptions with Mr. Aus’ pharmacy.
The Jail’s practice is to route an inmate’s verified prescriptions to two different
prescribers to determine whether they should be ordered while the inmate is detained at the Jail.
Those prescriptions deemed medical are presented to a medical doctor for review, and those
prescriptions deemed mental health are presented to a mental health practitioner. Pursuant to that
policy, Mr. Aus’ hypertension medications were presented to and orally ordered by a medical
doctor. Mr. Aus’ klonopin prescription was emailed to a mental health prescriber, Paula Braun,
an Advanced Practice Registered Nurse (“APRN”). It is unclear whether Ms. Braun knew, at that
time, that Mr. Aus had been prescribed klonopin for nearly ten years;5 she never saw or spoke to
him. From the email she received, however, she knew that Mr. Aus was prescribed 2-milligrams
of klonopin to be taken twice daily for a total of 4-milligrams per day, an uncommonly high
dosage. The email also notified Ms. Braun that the nursing staff had instituted blood pressure
checks, as well as an order to measure—twice-daily for five days—Mr. Aus’ score on the
Clinical Institute Withdrawal Assessment for Alcohol (“CIWA”) scale. The CIWA scale, as its
name suggests, detects alcohol withdrawal symptoms and provides a tool—in the form of an
aggregate score—to guide the medical treatment of a patient detoxifying from an alcohol use
disorder. Ms. Braun declined to order the klonopin prescription, and she placed no order to taper
(the process of weaning a patient off of a substance on which they are dependent by gradual

The email she received contained a “Patient Problem List” detailing Mr. Aus’ conditions
observed during his two previous periods of incarceration at the Jail. Included among those
patient problems was undifferentiated drug withdrawal syndrome and alcohol withdrawal.
5

3

reductions in dosage) the klonopin or any other benzodiazepine. Instead, Ms. Braun ordered that
Mr. Aus be permitted to request mental health consultation on an as-needed basis.6
2. Benzodiazepine Withdrawal Syndrome
A patient can develop a physiological dependence on benzodiazepines in as little as 3-4
weeks of continuous use of a low dose. After a dependent patient substantially decreases or
ceases the use of benzodiazepines entirely, they will experience withdrawal syndrome.
This withdrawal syndrome is characterized by two or more symptoms . . . that
include autonomic hyperactivity (e.g., increases in heart rate, respiratory rate,
blood pressure, or body temperature, along with sweating); a tremor of the hands;
insomnia; nausea, sometimes accompanied by vomiting; anxiety; and
psychomotor agitation. A grand mal seizure may occur in perhaps as many as
20%-30% of individuals undergoing untreated withdrawal from these substances.
. . . The withdrawal syndrome produced . . . may be characterized by the
development of a delirium that can be life-threatening.
Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (“DSM-V”) (ECF No. 101-8
at 4, 5). The severity of benzodiazepine withdrawal syndrome depends on the doses consumed
and the length of time the substance has been taken. “Doses of approximately 40mg of diazepam
(or its equivalent) daily are more likely to produce clinically relevant withdrawal symptoms, and
even higher doses (e.g., 100mg of diazepam) are more likely to be followed by withdrawal
seizures or delirium.” Id. “The longer the substance has been taken and the higher the dosages
used, the more likely it is that there will be severe withdrawal.” DSM-V (ECF No. 101-8 at 5).
Mr. Aus was prescribed a daily clonazepam dose equivalent to 80 milligrams of diazepam (ECF
No. 94-17 at 12), and had been taking clonazepam for nearly a decade.

Ms. Braun’s order read “mh kite prn,” which meant that “he [was] welcome, at any point in his
stay, to submit a [request] to the mental health service . . . saying any concerns he has, whether—
you know, I can’t sleep, I’m anxious, I’m really depressed or—I mean people say all kinds of
things, but sometimes they’re just asking to talk.” It is unclear whether Mr. Aus would have been
permitted to submit a mental health request absent Ms. Braun’s order.
6

4

The onset and duration of benzodiazepine withdrawal syndrome is determined, in large
part, by the half-life of the particular medication prescribed. “For substances with longer halflives . . . symptoms may not develop for more than 1 week, peak in intensity during the second
week, and decrease markedly during the third or fourth week.” DSM-V (ECF No. 101-8 at 5).
There is no widely accepted, validated detection scale for benzodiazepine withdrawal.
But “[b]ecause of the high risk of delirium, seizures, and death, benzodiazepine withdrawal
should always be treated.” (ECF No. 101-10 at 15). “A taper is necessary for safe and successful
[benzodiazepine] discontinuation. Weaning from benzodiazepines should be done systematically
with a full appreciation of the potentially-fatal consequences of abrupt cessation.” (ECF No. 9417 at 12).
The tapering schedule will depend on several factors, including the setting in
which the inmate is treated and the presence of co-morbid medical or psychiatric
conditions. If the inmate is hospitalized, the medication can be tapered by 10%
per day. Throughout the tapering schedule, inpatients should continue to be
evaluated for withdrawal symptoms every 8 hours. Outpatients should not be
tapered any more rapidly than by 10% every three to five days, or 25% per week.
(ECF No. 101-10 at 17).
Treatment of benzodiazepine withdrawal with beta-blockers (like the atenolol Mr. Aus
was prescribed for hypertension both before and during his time at the Jail) is “not routinely
recommended. . . . [because t]hey mask the very symptoms that signal an inadequate dosage of
the [tapered benzodiazepine], and thereby place the inmate at increased risk for developing
severe withdrawal. If the inmate is already on one of these medications for other medical
conditions, such as hypertension, increased vigilance is necessary to prevent severe withdrawal
symptoms from developing.” (ECF No. 101-10 at 17).

5

“Detoxification and withdrawal are best managed by a physician or other medical
professional with appropriate training and experience. As a precaution, severe withdrawal
syndromes must never be managed outside of a hospital.” (ECF No. 101-16 at 3).
3. Mr. Aus’ Incarceration and Death
On his second full day in the Jail, November 8, 2013, Mr. Aus submitted a sick call
request form, complaining that he was “supposed to be on [klonopin] 2mg twice a day.” (ECF
No. 101-7). The following day, a triage nurse assigned to handle the request met with Mr. Aus.
He informed her that he had been prescribed klonopin for ten years and that he had not received
any since arriving at the Jail two days prior. The triage nurse “educated” Mr. Aus that “klonopin
is generally not given here,” and left him with a worksheet entitled “Tips for Coping with
Anxiety.”
On November 10, 2013, Jail staff concluded the five-day CIWA and blood pressure
monitoring orders entered during Mr. Aus’ admission process. On November 13, 2013, Mr. Aus
submitted yet another sick call request form, complaining that he was experiencing “all the
symptoms on the paper I received.” The following day, a triage nurse again met with Mr. Aus,
who informed her that he had only slept for three hours the night prior. The nurse again
“educated [Mr. Aus] that klonopin is generally not given here.” (ECF No. 101-7 at 3).
Just before 8:00 pm on November 16, 2013, Officer William Lawrence spoke with Mr.
Aus and his cellmate Justin Bane. Mr. Aus indicated that he had not eaten anything that day, and
told Officer Lawrence that he did not feel well. Mr. Bane informed Officer Lawrence that Mr.
Aus was not receiving the anxiety medication that he had been taking before coming to the Jail.
As Officer Lawrence recounted, “[a]s I am talking to him he appears to be having seizures or
muscle spasms and has three while I am talking to him.” (ECF No. 101-2 at 15).

6

Roughly seven minutes later, Officer Lawrence called medical staff to Mr. Aus’ cell after
observing Mr. Aus seizing, drooling, and being held by his cellmate. A nurse arrived and
attempted to ask Mr. Aus questions, but elicited no verbal response. Another officer present
during this interaction later remarked that Mr. Aus’ eyes “appeared to be rolled back and
glossy.” After the nurse administered smelling salts Mr. Aus reacted and then rolled over onto
his side. The nurse concluded that no further action was necessary after finding that Mr. Aus’
vitals were normal; the nurse cleared him to remain in his cell.
Officer Lawrence, apparently still concerned about what he had observed, called a mental
health therapist to examine Mr. Aus. A therapist arrived and again attempted, unsuccessfully, to
elicit a verbal response from Mr. Aus. “He just had the same blank stare on his face from when
the nurse was in the unit,” Officer Lawrence recalled. The therapist left and took action to have a
mental health practitioner follow-up in the morning because “[the patient] was asleep.”
Around 10:00 pm, Mr. Bane used the intercom in his cell to inform Jail staff that Mr. Aus
was not breathing and that he could not find a pulse. Multiple officers responded and performed
CPR on Mr. Aus. Shortly after being loaded into an ambulance, he was declared deceased.
Dr. Grey, the state medical examiner who conducted Mr. Aus’ autopsy, concluded that
Mr. Aus died from acute hydrocephalus (blockage of normal circulation of cerebrospinal fluid in
the brain) arising from a cavum vergae cyst (a congenital fluid filled cyst in the ventricular
system of the brain). An autopsy is not capable of revealing the existence of severe
benzodiazepine withdrawal syndrome. Dr. Grey could not recall whether he reviewed the Jail’s
medical records during the course of the cause of death investigation. It is unclear whether the
records, even if Dr. Grey reviewed them, would have revealed that the Jail had abruptly

7

discontinued Mr. Aus’ ten-year, 4mg/day klonopin regimen ten days prior to his seizures and
death.
II.

THE § 1983 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The § 1983 Defendants move for summary judgment, arguing (1) that they are entitled to
qualified immunity; and (2) that plaintiffs have failed to establish the elements necessary to
obtain municipal liability. After setting forth the summary judgment standard, the court
addresses each argument in turn.
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
movant bears the initial burden of demonstrating the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met this burden,
the burden shifts to the nonmoving party to “set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation
omitted). To do so, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).
When the nonmoving party bears the burden of proof at trial on a dispositive issue, that
party must “go beyond the pleadings” and designate specific facts so as to “make a showing
sufficient to establish the existence of an element essential to that party’s case.” Celotex, 477
U.S. at 322. “[T]here is no issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Liberty Lobby, Inc., 477 U.S. at
249. On summary judgment, “courts are required to view the facts and draw reasonable
inferences” in the light most favorable to the non-movant. Scott v. Harris, 550 U.S. 372, 378
(2007).
8

A. QUALIFIED IMMUNITY
“Qualified immunity protects government officials from suit [in their individual capacity]
for civil damages if their conduct does not violate clearly established statutory or constitutional
rights.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016) (citing Thomas v. Kaven,
765 F.3d 1183, 1194 (10th Cir. 2014)). “When a defendant raises a qualified immunity defense,
the court must dismiss the action unless the plaintiff shows that (1) the defendant violated a
statutory or constitutional right, and (2) the right was clearly established at the time of the
violation.” Id. Thus, once a defendant asserts a qualified immunity defense, the burden shifts to
the plaintiff to make the requisite showing to defeat it.
The parties’ briefing on qualified immunity contains erroneous statements of law, factual
errors, and overlooks potentially dispositive issues. First, defendants7—Mr. Winder, Ms. Rivera,
Salt Lake County, and Wellcon8—assert that they are entitled to qualified immunity. But as a
municipality, the County is not entitled to any sort of immunity from § 1983 liability. See Owen
v. City of Independence, Mo., 445 U.S. 622, 638 (1980) (“[T]here is no tradition of immunity for
municipal corporations, and neither history nor policy supports a construction of § 1983 that
would justify [extending] qualified immunity [to municipalities].”). Thus, the County’s qualified
immunity defense fails at the outset.

7

Throughout their papers, the parties offer imprecise legal arguments that refer collectively to
“defendants.” As explained in this memorandum decision, however, each defendant stands in
very different shoes vis-à-vis § 1983 liability. To avoid reproducing the conceptual confusion
engendered by the parties’ references to the collective “defendants,” the court refers to the
appropriate defendant or defendants when analyzing the standards to which they are subject.
8

Wellcon concedes that it acts under color of state law for purposes of § 1983. See Lugar v.
Edmondson Oil Co., 457 U.S. 922, 935 (1982) (“If the challenged conduct of [private actors]
constitutes state action . . . then that conduct [is] also action under color of state law and will
support a suit under § 1983.”).
9

Second, despite the fact that plaintiffs’ complaint asserts a § 1983 claim against Mr.
Winder “in both his official and individual capacity”—the latter of which would entitle him to
raise a qualified immunity defense—plaintiffs now unambiguously represent that they “have not
sued an individual officer,” and that, as a result, “[q]ualified immunity . . . need not be
addressed.” (ECF No. 101 at 35). This is highly confusing, and it remains unclear whether
plaintiffs are unaware that they have in fact sued an individual officer, or whether they merely
intend to now withdraw the individual-capacity claim. Regardless, in the face of Mr. Winder’s
qualified immunity defense, plaintiffs have made no attempt to carry their burden to show that
Mr. Winder violated a clearly established statutory or constitutional right. See Mayfield, 826 F.3d
at 1255 (“When a defendant raises a qualified immunity defense, the court must dismiss the
action unless the plaintiff shows that (1) the defendant violated a statutory or constitutional right,
and (2) the right was clearly established at the time of the violation.”). Because plaintiffs have
not made the necessary showing to defeat Mr. Winder’s qualified immunity defense, he is
entitled to summary judgment.9
Finally, Wellcon, as a private corporate entity, bears the threshold burden of establishing
that it is entitled to assert qualified immunity in the first place. The weight of authority extends
the availability of the qualified immunity defense to private employees who are sued under §
1983.10 See Filarsky v. Delia, 566 U.S. 377, 389 (2012) (“[I]mmunity under § 1983 should not

9

To the extent that an official-capacity claim remains pending against Ms. Rivera—Mr.
Winder’s successor—that claim is duplicative of the claim against the County because a suit
against a person in his or her official capacity is no more than a suit against the official’s
employer. See Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998).
10

The Supreme Court once held that employees of a wholly-private prison may not avail
themselves of the qualified immunity defense. See Richardson v. McKnight, 521 U.S. 399, 410–
11 (1997). Since that decision, however, the Court has gone to great lengths to confine that case
to its facts, characterizing Richardson as having held only that “prison guards employed by a
private company and working in a privately run prison facility did not enjoy [qualified
10

vary depending on whether an individual working for the government does so as a full-time
employee, or on some other basis.”). But whether a private corporate entity can assert qualified
immunity is a much more difficult question that has not been addressed by the Supreme Court.
And while the Tenth Circuit has held “that there is no bar against a private corporation claiming
qualified immunity[,]” whether or not a private corporation is extended qualified immunity under
that court’s precedent turns on the entity’s ability to establish that the policies underlying
qualified immunity are implicated by § 1983 suits against it.11 See Rosewood Servs., Inc. v.
Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1166 (10th Cir. 2005). Because Wellcon
missed this issue entirely, the court is without the facts and arguments necessary to determine
whether Wellcon is entitled to assert qualified immunity and force plaintiffs to make their twopart showing to defeat the defense. As a result, Wellcon is not entitled to summary judgment on
grounds of qualified immunity.
In sum, while Mr. Winder is entitled to summary judgment on qualified immunity
grounds, the qualified immunity defense is not available to the County, and Wellcon has failed to
establish that it may assert qualified immunity in the first instance.

immunity].” Filarsky v. Delia, 566 U.S. 377, 393 (2012) (“Richardson was a self-consciously
‘narrow[]’ decision.” (alteration in original)).
11

More recently, the Tenth Circuit articulated the circumstances in which a private entity may
assert qualified immunity as follows:
First, if the private parties are “closely supervised by the government.” Rosewood
Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir.
2005); see also DeVargas v. Mason & Hanger–Silas Mason Co., 844 F.2d 714,
722 (10th Cir. 1988). Second, if there is a historical basis for providing immunity
to that type of private entity. Richardson v. McKnight, 521 U.S. 399, 404, 117
S.Ct. 2100, 138 L.Ed.2d 540 (1997). Third, if extending immunity implicates
“special policy concerns involved in suing government officials.” Wyatt, 504 U.S.
at 167, 112 S.Ct. 1827.
Gen. Steel Domestic Sales, L.L.C. v. Chumley, 840 F.3d 1178, 1182 (10th Cir. 2016).
11

B. MONELL LIABILITY FOR VIOLATIONS OF THE EIGHTH AND FOURTEENTH AMENDMENTS
The Supreme Court holds that municipalities are “persons” who may be sued under §
1983. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). But “a municipality cannot be
held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be
liable under § 1983 on a respondeat superior theory.” Id. at 691. It is the Court’s rejection of
respondeat superior municipal liability that animates the unique requirements of so-called
Monell liability. The Tenth Circuit has distilled the relevant case law into a three-element
framework: to recover in a § 1983 action against a municipality, a plaintiff must establish “(1)
[an] official policy or custom, (2) causation, and (3) state of mind.” See Schneider v. City of
Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013).
In the Tenth Circuit, the municipal liability principles announced by Monell and its
progeny apply equally to a private entity sued under § 1983. See Dubbs v. Head Start, Inc., 336
F.3d 1194, 1216 (10th Cir. 2003). Thus, whether the actionable conduct is that of the County or
Wellcon (collectively, the “Entity Defendants”), plaintiffs must adduce (1) a policy or custom
fairly attributable to the Entity Defendants; that (2) was the moving force behind Mr. Aus’ death;
and (3) was instituted or maintained with deliberate indifference as to its known or obvious
consequences. See Schneider, 717 F.3d at 770–71. The court addresses each element in turn.
1. Policy or Custom
“[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice
to follow a course of action is made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in question.” Pembaur
v. City of Cincinnati, 475 U.S. 469, 483 (1986). Thus, “[t]he ‘official policy’ requirement [is]
intended to distinguish acts of the municipality from acts of employees of the municipality, and

12

thereby make clear that municipal liability is limited to action for which the municipality is
actually responsible.” Id. at 479.
A municipal policy or custom may take the form of (1) “a formal regulation or
policy statement”; (2) an informal custom “amoun[ting] to ‘a widespread practice
that, although not authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage with the force of
law’”; (3) “the decisions of employees with final policymaking authority”; (4)
“the ratification by such final policymakers of the decisions—and the basis for
them—of subordinates to whom authority was delegated subject to these
policymakers' review and approval”; or (5) the “failure to adequately train or
supervise employees, so long as that failure results from ‘deliberate indifference’
to the injuries that may be caused.” Brammer–Hoelter v. Twin Peaks Charter
Acad., 602 F.3d 1175, 1189–90 (10th Cir.2010) (quoting City of St. Louis v.
Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) and City of
Canton v. Harris, 489 U.S. 378, 388–91, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989)) (internal quotation marks omitted).
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (alteration in original).
Plaintiffs’ municipal liability arguments are confusing, often combining statements of
law from several of these paths to establishing municipal liability. In their clearest articulation of
their theory, however, plaintiffs argue that (1) “Defendants have a formal regulation (or at least a
widespread practice) of depriving inmates of their verified benzodiazepine prescriptions”; and
that (2) “Defendants have failed to implement a benzodiazepine withdrawal protocol that
monitors inmates during peak withdrawal.” Thus, plaintiffs allege the existence of both an
express formal policy as well as informal customs of action or inaction so widespread as to have
the force of law.
Plaintiffs’ formal policy theory fails because they have adduced no “policy statement,
ordinance, regulation, or decision officially adopted and promulgated” by the Entity Defendants.
See Monell, 436 U.S. at 690. The County’s written policy12 that most closely bears on plaintiffs’
theory of municipal liability is actually contrary to what plaintiffs purport the County’s policy to
12

Wellcon does not have written policies.
13

be, declaring that: “Patients entering the facility on verified prescription medications continue to
receive the medications in a timely fashion as prescribed; an acceptable alternative medication
may be substituted as clinically indicated. The medications will be verified and communicated to
the provider for disposition.” (ECF No. 101-2 at 23). Thus, plaintiffs cannot establish an express
policy of withholding verified benzodiazepine prescriptions from inmates.
The record is sufficient, however, to support a finding that the Entity Defendants have
imposed several unwritten practices relevant to Mr. Aus’ injury.13 Some of these customs are
borne out by their appearance throughout the record while the existence of others is confirmed
by the testimony of Dr. Wilcox, Wellcon’s founder and sole owner who “oversees the entirety of
the prescriptive practice within the jail.”14
First, every Wellcon or County employee deposed displayed awareness of a custom that,
very generally, designates benzodiazepines as disfavored medications. Dr. Wilcox testified that
benzodiazepines “are just not medically necessary to treat patients in a jail setting.” (ECF No.
101-4 at 57). Ms. Braun testified that “[i]n general, controlled substances are not given or are
tapered, and benzodiazepines are a controlled substance.” (ECF No. 101-5 at 45). Indeed, Mr.
Aus himself was even informed of this custom during his time at the Jail. After twice
complaining of anxiety and informing a triage nurse that he had been on a klonopin regimen for
13

Plaintiffs attempt to establish the existence of a custom by estimating the number of inmates
denied their verified benzodiazepine prescriptions. But plaintiffs have not shown how a policy of
denying patients their verified benzodiazepine prescriptions is itself unconstitutional. In other
words, plaintiffs have not established that a failure to treat an inmate’s anxiety disorder is a
violation of the inmate’s Eighth Amendment right to be free of cruel and unusual punishment.
Rather, the relevant statistical analysis would be how many benzodiazepine-dependent
patients—i.e., patients for whom the cessation of benzodiazepines places them at risk of
experiencing severe withdrawal symptoms—are not provided with adequate medical care for that
condition. This information is not part of the summary judgment record.
All quotes attributed to Dr. Wilcox herein were made in his capacity as Wellcon’s Rule
30(b)(6) designee.
14

14

ten years, Mr. Aus was twice informed that “klonopin is generally not given here.” (ECF No.
101-7 at 2, 3).
The Entity Defendants repeatedly attempt to portray the decision whether to continue,
taper, or terminate a benzodiazepine prescription as being driven only by medical necessity; that
each clinician exercises her clinical judgment on the basis of an individual patient’s presentation.
But no nurse or prescriber could provide any purely clinical rationale for the disfavored status of
benzodiazepines, whether tapered or otherwise. When pressed about the reasons for the Jail’s
clinical aversion to benzodiazepines, Dr. Wilcox explained that “benzodiazepines are
problematic medications in a custodial environment. . . . [because t]hey are frequently traded
inmate to inmate, which can be very problematic.” (ECF No. 101-4 at 71). Whether or not the
policy is justified by the practical constraints of the custodial environment, it is clear that there
exists an unwritten policy or custom at the Jail15 that, at minimum, discourages the prescribing of
benzodiazepines. In short, a formal policy vesting absolute clinical discretion in prescribers
cannot vitiate a finding that the Entity Defendants have imposed clear customs discouraging the
prescribing of benzodiazepines.

15

It is difficult to affirmatively allocate the creation of the custom to either Wellcon or the
County alone, especially when the avowed concerns underlying the discouragement of
benzodiazepines—security and compliance—appear to be squarely within the province of the
County. The § 1983 Defendants’ briefing makes no attempt to distinguish between the practices
allocable to Wellcon and those allocable to the County, presumably because the County appears
to have assumed ultimate responsibility for any liability under the § 1983 claim. The record and
oral arguments for these motions established the fact that an inmate’s medical care at the Jail is
handled by both Wellcon and County employees, and the distinction between these categories of
employees is virtually imperceptible. For example, some of the Jail’s mental health practitioners
are Wellcon employees and others work directly for the County. Ms. Braun worked for Wellcon
at the time of the events giving rise to this suit, but now works for the County in an identical
capacity. Thus, in practice, the Entity Defendants must be said to have acted in concert and, at
least with respect to the § 1983 claim, any uncertainty flowing from these undefined boundaries
of authority cannot inure to the Entity Defendants’ benefit.
15

But the custom that bears most directly on the alleged Eighth Amendment violation in
this case is the inaction that resulted from the Entity Defendants’ refusal to acknowledge the
well-known dangers attendant to benzodiazepine withdrawal syndrome. Dr. Wilcox must be
deemed Wellcon’s final policymaker, and his clear expressions of unwritten policy are fairly
attributable to Wellcon.16 City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (“[O]nly
those municipal officials who have ‘final policymaking authority’ may by their actions subject
the [entity] to § 1983 liability.”).
There is more than sufficient evidence to establish that the Jail had determined that
benzodiazepine withdrawal syndrome is non-lethal and non-medical. Strikingly, Dr. Wilcox
confirmed the existence of this policy, declaring that “[w]e don’t really consider benzodiazepines
to be a lethal withdrawal syndrome.” (ECF No. 101-4 at 58). He further testified that absent
extraordinary circumstances in which the treatment of a physical malady requires
benzodiazepines, all inmate issues involving that class of drugs—including benzodiazepine
withdrawal syndrome—are handled by mental health practitioners to the exclusion of medical
doctors. Moreover, it is uncontroverted that the Jail’s sole course of treatment for
benzodiazepine-dependent inmates is referral to mental health practitioners for a mental health

The Tenth Circuit’s extension of the principles of municipal liability to private entities
presents difficulties in the final policymaker context because the Supreme Court holds that
whether a municipal body or employee may be said to “speak with final policymaking authority”
must be determined, as a matter of law, by reference to state and local positive law. Jett v. Dallas
Ind. Sch. Dist., 491 U.S. 701, 737 (1989). This analysis is obviously inapposite when a plaintiff
sues a private corporation rather than a municipality. Nevertheless, the rationale underlying this
requirement is that when an individual is empowered by his employer to make policy, liability
flowing from the policymaking acts of that individual are properly chargeable to the entity. Here,
it appears beyond doubt that Dr. Wilcox—the sole member and founder of Wellcon, and the
person who oversees the entire prescriptive practice of the Jail—is a final policymaker for
Wellcon.
16

16

assessment. There is no established protocol—written or unwritten—regarding the monitoring or
medical treatment of benzodiazepine withdrawal syndrome.
Further, as evidence that the Entity Defendants have selected “a course of action . . . from
among various alternatives[,]” the Entity Defendants have a policy of instituting a withdrawalmonitoring regimen for opioid-dependent patients—a condition not generally considered to be
life-threatening—while imposing no standard practice for benzodiazepine-dependent patients.
See Pembaur, 475 U.S. at 483. Instead, Wellcon’s policy is to refer patients who are dependent
only on benzodiazepines—to the exclusion of alcohol and opioids—to the Jail’s mental health
practitioners, ostensibly because of Wellcon’s position that benzodiazepine withdrawal is not a
medical concern. (ECF No. 101-4 at 59 (“The benzodiazepine withdrawal patients are referred to
. . . mental health clinicians for assessment.”)). Thus, while opioid withdrawal and alcohol
withdrawal are deemed medical issues by Wellcon that are suitable for treatment and/or
monitoring by medical doctors, benzodiazepine withdrawal is considered to be a mental health
issue. In short, the evidence establishes that (1) the Entity Defendants have withdrawal
monitoring/treatment protocols for other substances—including substances that do not, on their
own, produce life-threatening withdrawal symptoms—but have elected not to create the same for
benzodiazepines; and (2) the Entity Defendants have a policy of treating benzodiazepine
withdrawal syndrome as a mental health matter. Thus, the summary judgment record is sufficient
to support the conclusion that the Entity Defendants have unwritten customs and practices with
respect to benzodiazepine withdrawal that are fairly attributable to the Entity Defendants by
virtue of (1) testimony establishing the existence of unwritten customs by Wellcon’s final
policymaker; and (2) evidence of the widespread nature of the customs.

17

2. Causation
Having identified customs attributable to the Entity Defendants, plaintiffs must establish
that those customs were the “moving force” behind the deprivation of Mr. Aus’ Eighth
Amendment rights. Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (“[A] plaintiff . . .
must demonstrate a direct causal link between the [entities’] action and the deprivation of federal
rights.”).
In cases where a policy or custom is itself unconstitutional—for example, when a city
council, without due process, terminates a citizen’s employment in which she had a protected
property interest—the causation inquiry is simple. But when a plaintiff argues that a municipal
policy or custom led to a constitutional injury, a plaintiff must present evidence from which a
jury could conclude that the action or inaction has a causal link to the constitutional tort.
Here, there is sufficient evidence from which a jury could conclude that the customs
identified above were the moving force behind Mr. Aus’ Eighth Amendment deprivation. First,
the jury could find that the custom of discouraging benzodiazepine prescriptions was the moving
force behind Ms. Braun’s decision to abruptly discontinue Mr. Aus’ ten-year benzodiazepine
regimen. Indeed, the degree to which that purported “clinical decision” deviates from the
generally accepted treatment of long-term, high-dose, benzodiazepine-dependent patients—as
established by both correctional and traditional medical authorities in the record—is itself good
evidence that the Entity Defendants’ unwritten policy disfavoring benzodiazepine prescriptions
was the real driving force, especially when combined with Ms. Braun’s testimony establishing
her awareness of this policy. Moreover, this custom was known, and explicitly relied on, by the
triage nurse who twice met with Mr. Aus in response to his requests for medication on his third
and eighth days at the Jail.

18

The jury could further conclude that the Entity Defendants’ custom of categorizing
benzodiazepine withdrawal syndrome as a non-medical and non-lethal condition was the moving
force behind their failure to order a medically necessary taper or adequately monitor Mr. Aus’
withdrawal. The parties agree that there is no generally accepted, validated benzodiazepine
withdrawal detection scale. But from that fact, at least one correctional healthcare guide—
developed by the United States Bureau of Prisons—concludes that CIWA monitoring should
never be used to detect benzodiazepine withdrawal symptoms, and that a taper is the only safe
treatment method. But even without accepting that conclusion, it seems abundantly clear from
the record that CIWA monitoring in general, and a five-day17 CIWA monitoring order in
particular, is calculated to detect symptoms from alcohol withdrawal, not benzodiazepine
withdrawal. Thus, while the Entity Defendants repeatedly assert that Mr. Aus’ CIWA scores
never rose to a level that warranted medical intervention, the CIWA monitoring regimen was
only ordered for five days, a period of time sufficient to detect physiological symptoms of
alcohol withdrawal, but inadequate to detect issues related to Mr. Aus’ withdrawal from
clonazepam (which would have reached peak intensity at some point between 7 and 14 days after
his last dose). (ECF Nos. 82 at 4, 101-5 at 25). From all of this evidence, the jury could conclude
that the Entity Defendants’ policy of treating benzodiazepine withdrawal syndrome as a nonlethal, non-medical issue led the nurse to order only five days of CIWA monitoring—a
measurement tool and period of time adapted to detect alcohol withdrawal syndrome—when

17

A five-day CIWA monitoring regimen appears throughout the record as the recommended
length of monitoring for alcohol withdrawal syndrome. There is conflicting evidence in the
record about whether nurses at the Jail ever institute a CIWA monitoring regimen order for a
duration longer than five days, but APRN Braun, the prescriber who treated Mr. Aus, testified
that “CIWAs . . . require nurses to physically assess [patients] two times a day, for five days.”
(ECF No. 101-5 at 32). Plaintiffs’ expert, Dr. Merrill, testified that a patient reaches peak alcohol
withdrawal 72 hours after the patient’s last drink.
19

withdrawal from many benzodiazepines (and certainly from clonazepam) would be most acute
after the five days had elapsed.
Additionally, the jury could permissibly conclude that this custom was the moving force
behind Ms. Braun’s failure to recognize that Mr. Aus’ hypertension medication would mask his
symptoms without ameliorating the risk of seizures and death. Stated differently, a jury could
find that the Entity Defendants’ insouciant approach to the serious medical risks attendant to
severe benzodiazepine withdrawal—flatly inconsistent with the unanimity of medical authorities
in the record—resulted in a failure to train the mental health practitioners that hypertension
medications impede the detection of severe benzodiazepine withdrawal syndrome.18 On the basis
of this record, a jury would be empowered to infer that the detection and treatment failures were
the natural consequence of the Entity Defendants’ categorization of benzodiazepine withdrawal
syndrome as a non-lethal, non-medical condition.
Finally, the jury could conclude that the customs above and the absence of any
established protocol for benzodiazepine withdrawal syndrome—a clear policy choice in light of
the Entity Defendants’ promulgation of withdrawal protocols for alcohol and opioids—were the
moving force behind the Jail’s failure to identify the hallmark symptoms of severe
benzodiazepine withdrawal the night Mr. Aus died. The jury could permissibly conclude that a
benzodiazepine withdrawal protocol would have at least placed Jail staff on notice that Mr. Aus
was at risk for severe benzodiazepine withdrawal symptoms, and that such awareness combined

This fact further undermines the Entity Defendants’ insistence that Mr. Aus did not experience
anything more than mild withdrawal symptoms because the period of CIWA measurement
combined with the obfuscating effects of Mr. Aus’ hypertension medications essentially assured
that the Entity Defendants would not learn of his severe physiological withdrawal symptoms
until it was too late.
18

20

with his symptoms would have alerted them to the need to administer a rescue benzodiazepine
dose to halt his rapidly deteriorating condition.
In sum, there is ample evidence in the summary judgment record from which the jury
could conclude that the Entity Defendants’ custom of discouraging benzodiazepine prescriptions
and their policy that benzodiazepine withdrawal syndrome is a non-lethal, non-medical condition
were the moving force behind Mr. Aus’ constitutional deprivation. See King v. Kramer, 680 F.3d
1013, 1021 (7th Cir. 2012) (finding that “the way two [municipal medical] policies interacted . . .
caused [the municipality] to run afoul of the Constitution.”).
Apart from whether the above policies were the moving force behind Mr. Aus’
constitutional violation, the Entity Defendants further protest that there is insufficient evidence to
support a jury’s conclusion that Mr. Aus’ benzodiazepine withdrawal was the cause of his death.
But even if true, this evidentiary deficiency19 alone would not entitle the Entity Defendants to
summary judgment on plaintiffs’ § 1983 claim because Mr. Aus’ estate may recover damages for
any pain and suffering he experienced prior to his death, and the record contains significant
evidence that Mr. Aus experienced severe benzodiazepine withdrawal symptoms preceding his
death.20

19

The admissibility of Dr. Merrill’s death causation opinion is addressed infra § III.A.

The Entity Defendants’ failure to measure Mr. Aus’ CIWA scores during the period of peak
withdrawal facilitates their argument that there are no medical records that corroborate Mr. Aus’
serious withdrawal symptoms. But the record contains statements by multiple individuals who
perceived Mr. Aus experiencing substantial discomfort. Moreover, a jury would be free to credit
Dr. Merrill’s opinion—bolstered by several independent sources in the record—that a patient
abruptly discontinued from a ten-year, 4-milligram per day clonazepam prescription would have
experienced severe withdrawal symptoms.
20

21

3. State of Mind
Finally, in the Tenth Circuit, to establish municipal liability for any constitutional
violation,21 plaintiffs “must demonstrate that the municipal action was taken with ‘deliberate
indifference’ as to its known or obvious consequences.” Schneider, 717 F.3d at 770 (quoting
Brown, 520 U.S. at 407).
The deliberate indifference standard22 may be satisfied when the municipality has
actual or constructive notice that its action or failure to act is substantially certain
to result in a constitutional violation, and it consciously or deliberately chooses to
disregard the risk of harm. In most instances, notice can be established by proving
the existence of a pattern of tortious conduct. In a “narrow range of
circumstances,” however, deliberate indifference may be found absent a pattern of
unconstitutional behavior if a violation of federal rights is a “highly predictable”
or “plainly obvious” consequence of a municipality’s action or inaction, such as
when a municipality fails to train an employee in specific skills needed to handle
recurring situations, thus presenting an obvious potential for constitutional
violations.
Barney v. Pulsipher, 143 F.3d 1299, 1307–08 (10th Cir. 1998) (internal citations omitted).
Importantly, the municipality must be deliberately indifferent to the particular
constitutional violation alleged. Thus, because plaintiffs allege that the Entity Defendants
violated Mr. Aus’ Eighth Amendment23 right to be free from cruel and unusual punishment, they

“[T]he prevailing state-of-mind standard for a municipality is deliberate indifference
regardless of the nature of the underlying constitutional violation.” Schneider, 717 F.3d at 771
n.5.
21

22

The parties repeatedly recite the deliberate indifference standard applicable to individual
defendants sued for violations of the Eighth Amendment, which contains a subjective component
requiring that the individual defendant possess actual awareness of a substantial risk of harm.
The applicable standard for municipalities is the one set forth above, in part because of the
“considerable conceptual difficulty [that] would attend any search for the subjective state of
mind of a governmental entity, as distinct from that of a government official.” See Farmer v.
Brennan, 511 U.S. 825, 841 (1994).
23

Mr. Aus was confined in the Salt Lake County Jail from November 6, 2013 to November 11,
2013 as a pretrial detainee, a status that does not implicate the Eighth Amendment and instead
avails an inmate of the protections provided by the Fourteenth Amendment’s Due Process
Clause. On November 12, 2013, Mr. Aus pled guilty to certain charges and was sentenced to 90
days in jail, at which point he became a convicted prisoner protected by the Eighth Amendment’s
22

must identify conduct fairly attributable to the Entity Defendants that evinces “deliberate
indifference to serious medical needs.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976).24
There is insufficient evidence in the record of a pattern of tortious conduct involving the
consequences of the Entity Defendants’ benzodiazepine customs to establish that they were on
notice that their customs were resulting in constitutional violations. But the record evidence
would support a jury’s conclusion that the Eighth Amendment violation alleged here was “a
highly predictable or plainly obvious consequence of [the Entity Defendants’] action or
inaction.” Barney, 143 F.3d at 1308 (internal quotations omitted).
At the broadest level, a jury could conclude that a failure to attend to the medical needs of
inmates susceptible to severe benzodiazepine withdrawal syndrome is a highly predictable and
plainly obvious consequence of the Entity Defendants’ position that benzodiazepine withdrawal
syndrome is a non-lethal condition that does not require medical care. It is highly predictable that
a widespread practice of discouraging benzodiazepine prescriptions combined with a blasé
approach to the uncontroverted life-threatening dangers of benzodiazepine withdrawal syndrome
proscription of cruel and unusual punishment. The parties apparently assume that for liability to
lie under either amendment, plaintiffs must adduce conduct that amounts to deliberate
indifference of a serious medical need—the standard developed in the Eighth Amendment
context. The Supreme Court has provided little guidance on the differences, if any, in the
protection afforded by the amendments vis-à-vis custodial medical care, but the Court has held
that a pretrial detainee’s due process rights are “at least as great as the Eighth Amendment
protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,
244 (1983). More recently, the Court held that the state-of-mind standards differ in the context of
an excessive force claim. See Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). Ultimately, any
potential state-of-mind differences between the amendments appear academic in an action
against a municipality because the Tenth Circuit has concluded that the “state-of-mind standard
for a municipality is deliberate indifference regardless of the nature of the underlying
constitutional violation.” Schneider, 717 F.3d at 771 n.5.
24

The Eighth Amendment standard also requires a plaintiff to establish, as an objective matter,
that an inmate’s medical need was sufficiently serious to implicate the Eighth and Fourteenth
Amendments. The Entity Defendants do not dispute, and the Tenth Circuit has held, that “death
[is], without doubt, sufficiently serious to meet the objective component” of the Eighth and
Fourteenth Amendment standards. See Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).
23

would lead to precisely what occurred here: a failure to (1) institute a medically necessary taper,
and (2) appropriately monitor the inmate for severe withdrawal symptoms.
First, a jury would be free—and may even be compelled—to credit the vast,
uncontroverted record evidence that benzodiazepine withdrawal syndrome is a serious, lifethreatening condition. When combined with the Entity Defendants’ classification of this
syndrome as non-lethal and non-medical, the jury could find that they were deliberately
indifferent to the known risks of benzodiazepine withdrawal syndrome.
Relying on DSM-V’s explanation that “[f]or substances with longer half-lives . . .
symptoms may not develop for more than 1 week [and] peak in intensity during the second
week,” the jury could conclude that the Entity Defendants’ practice of ordering a 5-day CIWA
monitoring regimen was deliberately indifferent to the serious medical needs of an inmate
experiencing benzodiazepine withdrawal syndrome. And even had the Entity Defendants
customarily ordered a 10-day CIWA monitoring regimen, thereby signaling at least a modicum
of concern for benzodiazepine-dependent patients, there is record evidence suggesting that the
CIWA scale has not been validated for the detection of benzodiazepine withdrawal syndrome,
and that a taper is the only acceptable medical treatment. In fact, while the parties’ evidence
agrees that there is no validated detection system for benzodiazepine withdrawal, aside from
defendants’ own representations, there is no independent support for using CIWA scores to
detect benzodiazepine withdrawal, and the Bureau of Prisons expressly warns against the
practice of using the scale for that purpose.
Finally, from evidence that tends to establish that opioid withdrawal syndrome is “rarely
dangerous except in medically debilitated individuals and pregnant women,” but that “[b]ecause
of the high risk of delirium, seizures, and death, benzodiazepine withdrawal should always be

24

treated,” the jury may conclude that the Entity Defendants’ medical protocol imposing
monitoring for opioid withdrawal syndrome and their decision not to institute a similar protocol
for benzodiazepine withdrawal syndrome amounts to deliberate indifference.
Whether or not plaintiffs could establish that the Entity Defendants were deliberately
indifferent might be a different matter if there were some ambiguity or room for debate as to the
risks of benzodiazepine withdrawal syndrome. In such a hypothetical, the Entity Defendants’
indifferent approach to benzodiazepine withdrawal syndrome might amount to gross negligence.
But against the unanimity25 of authorities outlining the serious, potentially life-threatening
consequences of untreated benzodiazepine withdrawal, a jury would be empowered to conclude
that Mr. Aus’ Eighth Amendment deprivation was a highly predictable and/or plainly obvious
consequence of the Entity Defendants’ customs. Stated simply, when an entity’s custom is to
treat an indisputably serious, life-threatening medical condition as though it is a benign medical
condition, it cannot claim lack of awareness that severe medical consequences, including death,
might result.26
In sum, the record contains sufficient evidence from which a jury could conclude that the
Entity Defendants have instituted or maintained multiple customs, with deliberate indifference,
that caused the deprivation of Jeremy Aus’ constitutional rights. As a result, the § 1983
Defendants’ motion for summary judgment must be denied.
25

The only indication in the record that benzodiazepine withdrawal syndrome is not as described
above comes from Dr. Wilcox.
26

That the medication at issue poses other problems in the custodial environment does not
change this analysis. While those concerns may well justify the Entity Defendants’ policy of
disallowing “chronic” benzodiazepine prescriptions in the Jail, it cannot justify the maintenance
of widespread customs that cause medically-necessary tapers to be denied to benzodiazepinedependent inmates in violation of the Eighth Amendment. And, of course, this concern does not
bear at all on the Entity Defendants’ failure to institute a monitoring protocol for benzodiazepine
withdrawal.
25

III.

DEFENDANTS’ MOTIONS TO EXCLUDE EXPERT OPINIONS AND TO
STRIKE EXHIBITS

Wellcon is represented by counsel for the County in connection with plaintiffs’ § 1983
claim, but is represented by separate counsel on the medical malpractice claim. Defendants
apparently believed that this unique arrangement entitled them to file two substantially similar
motions to exclude testimony offered by Dr. Merrill, each motion purporting to speak for
Wellcon. While multiple motions for a single party flowing from this dual representation might
be appropriate when the motions seek to resolve legal issues applicable to only one of the claims,
the instant motions are not of this variety. Indeed, each of the motions purporting to speak for
Wellcon seek exclusion of the same general testimony regarding standard of care and causation
of Mr. Aus’ death. To the extent that there are claim-specific issues with Dr. Merrill’s testimony,
defendants have ignored those distinctions entirely. For example, the § 1983 Defendants seek to
exclude Dr. Merrill’s opinion about the appropriate standard of care in a correctional facility,
notwithstanding that whether they are liable under § 1983 will not at all depend on whether they
have violated a standard of care. Because the court assumes that defendants’ decision to file two
substantially similar motions to exclude evidence represents an assertion that there are important,
claim-specific differences between their arguments, the court will disregard arguments made by
either motion that do not correspond to the legal standard applicable to the relevant claim.
A. DR. MERRILL’S CAUSATION OPINION
The admissibility of Dr. Merrill’s opinions related to the causal nexus between Mr. Aus’
benzodiazepine withdrawal syndrome and his death—as expressed in his initial report, his
deposition, and his affidavit submitted in connection with the instant motions for summary
judgment—are the primary object of defendants’ motions to strike and motions to exclude

26

testimony. As explained below, plaintiffs have not carried their burden to establish that Dr.
Merrill’s death causation opinion is reliable.
Rule 702 of the Federal Rules of Evidence provides that:
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. The Supreme Court has explained that Rule 702 creates a gatekeeping
obligation for the district court, “assign[ing] to the trial judge the task of ensuring that an
expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”
Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597 (1993).
The Supreme Court has articulated four non-exclusive inquiries that a district court might
undertake in assessing the reliability of an expert’s methodology: (1) whether the expert’s theory
has been or can be tested or falsified; (2) whether the theory or technique has been subject to
peer review and publication; (3) whether there are known or potential rates of error with regard
to specific techniques; and (4) whether the theory or approach has general acceptance. Id. at
593–94. Which, if any, of these considerations ought to be endeavored by a court is determined
by their applicability to the expert testimony at issue.
Defendants do not dispute that Dr. Merrill’s proposed testimony is relevant to the task at
hand. Rather, they argue that he is not qualified to opine on the cause of Mr. Aus’ death, and that
his opinion on that matter is not reliable. In support, defendants advance three main arguments:
First, that Dr. Merrill is not qualified by training or experience to opine on this particular
causation question. Second, that Dr. Merrill’s opinion has been shown to be unreliable by his
27

inconsistent testimony at his deposition. And third, that Dr. Merrill is unable to articulate the
facts and data on which he bases his conclusion that Mr. Aus’ benzodiazepine withdrawal
seizures caused his death. After a careful review of all the materials that bear on this
determination (Dr. Merrill’s initial one-page report, his lengthy deposition, and his affidavit), the
court agrees that Dr. Merrill’s death causation opinion must be excluded.
The Tenth Circuit has explained that “merely possessing a medical degree is not
sufficient to permit a physician to testify concerning any medical-related issue.” Ralston v. Smith
& Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001). From this general principle,
defendants argue that an opinion as to the cause of Mr. Aus’ death can only be offered by a
pathologist or toxicologist who has completed a fellowship in those disciplines. The court cannot
agree. Surely a psychiatrist or other medical doctor with sufficient experience and familiarity
with the maladies Mr. Aus experienced here could be qualified to offer an opinion on the cause
of his death. Dr. Merrill’s problem is that, by his own admission, he does not have that
experience, and his testimony regarding acute hydrocephalus, cavum vergae cysts, and the role
those conditions played in Mr. Aus’ death evinces that deficiency. Dr. Merrill has never treated a
patient experiencing hydrocephalus, nor a patient diagnosed with a cavum vergae cyst. If Dr.
Merrill were familiar with the literature on these conditions, perhaps this experiential deficit
could be overcome. But in response to questions regarding those conditions, Dr. Merrill almost
invariably qualified his answers with comments about his lack of expertise or unfamiliarity with
the conditions. In response to a question about whether he had ever treated a patient with a
cavum vergae cyst, Dr. Merrill remarked that “[i]t sounds familiar, but I can’t recall the specifics
of it, no.”

28

Additionally, though he would subsequently contradict this testimony in more general
terms, Dr. Merrill clearly testified that he was unable to opine that Mr. Aus’ death—which he
concedes was ultimately caused by the closure of Mr. Aus’ cavum vergae cyst—was more likely
than not caused by his severe benzodiazepine withdrawal, testifying as follows:
Q. Did the benzodiazepine withdrawal lead to the cyst closure?
A. Potentially.
Q. More likely than not?
A. More likely than not? No.
(ECF No. 107-1 at 129).
But even setting aside the issues with Dr. Merrill’s qualifications and inconsistent
testimony, the principal defect in Dr. Merrill’s death causation opinion is his failure to provide—
either in his initial report, his deposition testimony, or his affidavit—the factual and
methodological bases for his opinion. His one-page written report does not offer any opinions
about the cause of Mr. Aus’ death, instead offering four summary opinions related to
benzodiazepine withdrawal, a matter more squarely within his psychiatric expertise. At his
deposition, Dr. Merrill offered clear insights regarding the medical reasoning—and the
experience that informs it—by which he arrived at his opinions about severe benzodiazepine
withdrawal and the likelihood that Mr. Aus’ seizures were produced by that condition. By
contrast, Dr. Merrill had a difficult time even articulating his death causation theory. Indeed, the
clearest expression of a death causation opinion in Dr. Merrill’s deposition was offered by
plaintiffs’ counsel in the form of leading questions that were adopted by Dr. Merrill with oneword affirmative responses. (ECF No. 85-3 at 46–47).
And finally, although defendants seek exclusion of Dr. Merrill’s post-deposition affidavit
for purposes of resolving the admissibility of his causation opinion, his affidavit, even if
29

considered, does not cure those defects. While it presents a more coherent and consistent theory
than that advanced in the deposition, the affidavit is similarly devoid of any explanation of the
materials or process used in arriving at his causation opinion. Thus, as with his initial report and
deposition testimony, the affidavit provides no basis by which to adjudge whether his opinion is
based on good grounds and is reliable. For all these reasons, Dr. Merrill’s opinion as to the cause
of Mr. Aus’ death must be excluded.
But the exclusion of that opinion does not end the matter. Plaintiffs have set forth a
highly plausible theory regarding the role of defendants’ conduct in Mr. Aus’ death. Plaintiffs
have produced strong evidence establishing (1) that untreated benzodiazepine withdrawal
presents a substantial risk of seizures; (2) that seizures and other severe benzodiazepine
withdrawal symptoms are much more likely to occur in patients taking higher doses for longer
periods of time; (3) that the risk of seizure for patients dependent on clonazepam would have
been at or very near its peak when Mr. Aus seized;27 and (4) that it is rare that someone Mr. Aus’
age will experience acute hydrocephalus. While it is possible that the cyst with which Mr. Aus
was born produced the hallmark symptom of severe benzodiazepine withdrawal (seizures) at
precisely the time he was most at risk for that symptom, it is impossible to ignore the possibility
that it was instead Mr. Aus’ untreated benzodiazepine withdrawal that set off this chain of
events.

Some of defendants’ briefing can be read as contesting whether Mr. Aus seized at all. But
defendants’ unwavering reliance on Dr. Grey—who himself concluded that Mr. Aus suffered
seizures—forecloses any serious attack on that proposition. To the extent defendants intend to
press this argument, the court concludes that there is ample evidence from which a jury could
find that Mr. Aus suffered multiple seizures. Officer Lawrence and Mr. Aus’ cellmate Jason
Bane each described witnessing the physical manifestations of a seizure (indeed, they both
characterized it as such contemporaneously and in interviews following Mr. Aus’ death), and Dr.
Grey testified that those witness accounts combined with an acute hemorrhage on Mr. Aus’
tongue—indicative of bite marks—led to his conclusion that Mr. Aus experienced seizures.
27

30

Despite the strong logical inference flowing from this timeline, Mr. Aus’ maladies, and
the complex ways they interact, appear to be squarely in the domain of experts. Thus, the issue of
death causation could not be permissibly submitted to the jury without reliable supporting expert
testimony. At present, however, the scheduling order in this case precludes plaintiffs from
securing a new expert to opine on the cause of Mr. Aus’ death. Absent its modification, the
scheduling order may effect a functionally outcome-determinative exclusion of evidence. In the
absence of incurable prejudice to the defendants, the exclusion of possibly reliable—and plainly
relevant—evidence regarding a central issue in this case would work an injustice. Thus, the court
must consider whether to modify the scheduling order to permit plaintiffs to procure an expert
who is qualified to opine on the relationship between Mr. Aus’ severe benzodiazepine
withdrawal and his death.
1. Whether the Scheduling Order Should be Modified to Permit the Addition of a
New Expert
Under Rule 16(b)(4) of the Federal Rules of Civil Procedure, a scheduling order “may be
modified only for good cause and with the judge’s consent.” A court considering whether to
modify a scheduling order to permit the addition of a new expert witness is guided by four
factors:
(1) the prejudice or surprise in fact of the party against whom the excluded
witnesses would . . . testif[y], (2) the ability of that party to cure the prejudice,
(3) the extent to which waiver of the rule against calling unlisted witnesses
would disrupt the orderly and efficient trial of the case or of other cases in
court, and (4) bad faith or willfulness in failing to comply with the court’s
order.
Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th Cir. 2011). The Tenth Circuit cautions that
“a scheduling order can have an outcome-determinative effect on the case and [that] ‘total
inflexibility is undesirable.’” Id. (quoting Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604

31

(10th Cir. 1997)). “A scheduling order which results in the exclusion of evidence is, moreover, ‘a
drastic sanction.’” Id. (quoting Summers, 132 F.3d at 1254).
The first, second, and third factors weigh heavily in favor of modifying the scheduling
order here. The most salient fact bearing on these factors is that no trial is currently scheduled for
this matter, and the court’s unusually crowded criminal trial docket will preclude scheduling a
trial to begin any earlier than February of 2020. As a result, there is “ample opportunity for
[defendants] to test the opinions of the new expert witness, review the witness’s reports, depose
the new witness, and adequately defend against that expert at trial.” Id. at 1255. Thus, defendants
“would not be prejudiced by a new scheduling order in the sense of being unable to mount a
defense against the new expert’s testimony,” which is “[t]he type of prejudice that rises to the
level of warranting the exclusion of a witness’s testimony.” Id.
Moreover, while defendants were entitled to place some measure of reliance on the extant
scheduling order, they would surely have been aware that the exclusion of expert testimony on
one of the most important issues in this case might precipitate the addition of a new expert
witness. See Summers, 132 F.3d at 605 (“Defendant could hardly have been surprised that
plaintiffs would attempt to procure alternative expert testimony in the event the court granted
defendant’s motion to exclude [plaintiffs’ expert witnesses].”).
Additionally, as explained above, the exclusion of Dr. Merrill’s death causation opinion
does not entitle the Entity Defendants to summary judgment. Thus, whether or not the court
amended the scheduling order to accommodate the addition of a new causation expert, the Entity
Defendants will remain party to this case.
Finally, the fourth factor also weighs in favor of modifying the scheduling order in that
the court can discern no bad faith or willful conduct attributable to plaintiffs. Plaintiffs

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designated Dr. Merrill in a timely manner and there is nothing to suggest that they had reason to
believe his testimony on the cause of Mr. Aus’ death would be excluded. But this court has
nevertheless concluded that he would testify so inconsistently that the court would find his
testimony unreliable. Indeed, a district judge has considerable discretion in determining whether
particular expert testimony is admissible under Rule 702. Under that rule, as the Tenth Circuit
has noted, “‘different courts relying on essentially the same science may reach different results,’
but we could still affirm both decisions due to our ‘deferential standard of review.’” Etherton v.
Owners Ins. Co., 829 F.3d 1209, 1217 (10th Cir. 2016) (quoting Hollander v. Sandoz Pharms.
Corp., 289 F.3d 1193, 1206 (10th Cir. 2002)). In short, there is nothing to suggest that plaintiffs
willfully created the conditions requiring modification of the scheduling order.
Because there is no trial date set in this matter, the court finds that there is ample time to
cure any minimal prejudice to defendants caused by a modification of the scheduling order. The
court will therefore modify it to allow sufficient time to designate additional experts necessitated
by the exclusion of Dr. Merrill’s causation opinion.
B. THE § 1983 DEFENDANTS’ MOTION IN LIMINE
After setting aside opinions that the § 1983 Defendants seek to exclude that either do not
correspond to the § 1983 claim or relate to death causation, the following opinions remain
subject to their motion in limine:
a. Dr. Merrill’s opinion that “[a] failure to follow the recommended taper protocol
announced by the psychiatric care practices causes a patient to suffer an extremely
high level of physical and emotional discomfort as well as a heightened risk of
seizure and possible death.”

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b. “A change in mental status or seizure activity in a patient discontinued from
benzodiazepines requires either a rescue dose of benzodiazepine or advanced
care.”
Dr. Merrill’s expertise in the symptoms, complications, and treatment of benzodiazepine
withdrawal cannot reasonably be challenged. He has spent 18 years observing and treating
patients—mostly in a closed inpatient setting—suffering from benzodiazepine withdrawal
syndrome. The opinions above are squarely in his ken, and their reliability is overwhelmingly
established by independent medical authorities in the record. The record is replete with
descriptions of untreated benzodiazepine withdrawal as causing “an extremely high level of
physical and emotional discomfort as well as a heightened risk of seizure and possible death.”
And every single medical authority in the record forecloses the propriety of abrupt cessation of
benzodiazepines for patients who are physiologically dependent. Finally, multiple record
sources, like the Bureau of Prisons’ guidelines, indicate that “[p]atients showing signs of late
(severe) withdrawal [including delirium, changes in consciousness, and seizures] should be
hospitalized.” (ECF No. 94-10 at 16). Thus, Dr. Merrill’s opinions on these matters, informed by
highly relevant training and experience and corroborated by authoritative sources, are facially
reliable and will not be excluded now or at trial.
C. Wellcon’s Motion in Limine
Aside from the death causation opinion, Wellcon seeks to exclude Dr. Merrill’s opinions
that (1) “Wellcon breached the applicable standard of care when providing care and treatment to
Mr. Aus”; and (2) Mr. Aus’ seizures were caused by benzodiazepine withdrawal. The court
considers each in turn.

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1. Dr. Merrill’s Standard of Care Opinion
Wellcon contends that Dr. Merrill’s dearth of experience working in correctional
healthcare renders his opinions on the correctional standard of care unreliable. The court does
not agree. Dr. Merrill’s deposition testimony evinces that he took the time to ascertain whether
there are differences in the standard of care in the context of the life-threatening condition of
withdrawal from a high-dose, long-term benzodiazepine regimen. He could find none, an
unsurprising result considering the concordance of medical authorities describing untreated
benzodiazepine withdrawal as presenting unmitigable risks of seizures and death. It would be an
untrustworthy source indeed that concludes that individuals may be abruptly taken off of longterm, high-dose benzodiazepine regimens by virtue of their carceral status.
And to the extent the correctional standard of care actually differs from the traditional
standard of care, the record itself contains independent validations of Dr. Merrill’s opinion as to
the correctional standard of care. The Bureau of Prisons Clinical Practice Guidelines—
developed, no doubt, to guide the delivery of healthcare in a correctional setting—states, without
qualification, that “[b]ecause of the high risk of delirium, seizures, and death, benzodiazepine
withdrawal should always be treated.” (ECF No. 101-10 at 15) (emphasis added). That
correctional guide further mandates a gradual taper for benzodiazepine-dependent inmates,
forecloses the propriety of using CIWA scores for withdrawal monitoring, and warns that
patients prescribed beta-blockers for hypertension require extra supervision because that class of
medications masks indicators of severe benzodiazepine withdrawal. Indeed, aside from
Wellcon’s own ipse dixit, there is nothing in the record to suggest that the correctional standard
of care for this condition is anything but what Dr. Merrill describes.
In sum, Dr. Merrill’s opinions about the appropriate standard of care are entirely
consistent with standards developed explicitly for custodial facilities. Thus, his relative
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inexperience in that setting is of no moment. Moreover, Dr. Merrill has considerable experience
treating patients in a closed environment—a state hospital with involuntary patients—not
dissimilar from jails.
2. Dr. Merrill’s Opinion that Mr. Aus’ Seizures were Caused by Severe
Benzodiazepine Withdrawal
Wellcon’s general argument in seeking to exclude Dr. Merrill’s opinion that Mr. Aus’
seizures were caused by severe benzodiazepine withdrawal is that because Dr. Merrill conceded
that acute hydrocephalus would also produce seizure activity, he is without a sufficient factual
basis to opine that Mr. Aus’ seizures were caused by benzodiazepine withdrawal. Wellcon
further argues that Dr. Merrill’s inability to point to any objective evidence that benzodiazepine
withdrawal, rather than acute hydrocephalus, caused the seizures also requires the exclusion of
this opinion. Again, the court disagrees.
Contrary to his death causation testimony, Dr. Merrill’s deposition testimony regarding
the relationship between Mr. Aus’ withdrawal syndrome and his seizures was entirely consistent,
and was premised on clearly articulated facts and reasoning borne from his extensive experience
treating benzodiazepine withdrawal syndrome. Upon a careful review of his deposition
testimony, it is clear that Dr. Merrill—explicitly relying on record evidence about Mr. Aus’
symptomatic presentation—employed his experience, training, and specialization in this
particular syndrome to reach his opinion that it was more likely than not that Mr. Aus seized
multiple times due to severe benzodiazepine withdrawal. Contrary to Wellcon’s argument, that
process of reasoning and the experience that underlies it is reliable and will clearly assist the trier
of fact to determine a fact in issue. Wellcon is, of course, free to vigorously cross-examine Dr.
Merrill and argue to the jury that his opinion cannot be confirmed with 100% certainty by

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observable phenomena, but this argument goes to the opinion’s weight rather than its
admissibility.
D. REMAINING EVIDENCE SUBJECT TO THE § 1983 DEFENDANTS’ MOTION TO STRIKE
The § 1983 Defendants28 move to strike two exhibits appended to plaintiffs’
memorandum in opposition to the § 1983 Defendants’ motion for partial summary judgment:
Exhibit H, an affidavit executed by Dr. Merrill, and Exhibit L, an audio recording of an interview
conducted by plaintiffs’ counsel of Mr. Aus’ cellmate, Justin Bane. The court considers each in
turn.
1. Exhibit H
Exhibit H is an affidavit executed by Dr. Merrill that was submitted alongside plaintiffs’
memoranda opposing the instant motions for summary judgment and motions in limine. Aside
from Dr. Merrill’s death causation opinion, which has already been excluded, the § 1983
Defendants take issue only with Dr. Merrill’s correction of his deposition testimony regarding
the time at which Mr. Aus would have been at the greatest risk of experiencing seizures and
other severe withdrawal syndromes.
As an initial matter, in the expert context, the line between permissible—indeed,
required—supplementation of expert opinions and prohibited untimely or wrongly withheld
expert materials is a thin one. But Dr. Merrill’s affidavit opinion regarding the timeline of

Wellcon also filed a motion to strike Dr. Merrill’s affidavit, but its argument in support is that
Dr. Merrill’s causation opinion renders it a sham affidavit designed to preclude summary
judgment. Because Dr. Merrill’s death causation opinion has been excluded, Wellcon’s motion
to strike is denied as moot.
28

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withdrawal from clonazepam falls clearly into the category of permissible, and timely, 29
supplementation by virtue of its corrective character.
During Dr. Merrill’s deposition, it appears that all participants erroneously believed that
Mr. Aus seized and died on his eighth day at the Jail. Dr. Merrill testified that Mr. Aus would be
most likely to experience peak withdrawal symptoms at that time due to the half-life of klonopin.
Dr. Merrill seeks to correct that opinion, now stating that withdrawal from klonopin would have
produced peak withdrawal symptoms on the tenth day of withdrawal, the earliest point at which
all traces of klonopin would have been eliminated from his system.
While Dr. Merrill’s inclination to provide testimony most supportive of his client’s cause
of action is perhaps unseemly—though indistinguishable from virtually every retained expert—
the critical question is which of the two opinions is correct. Here, there is ample record evidence
to support Dr. Merrill’s corrected opinion that for a patient dependent on clonazepam—a
benzodiazepine with a comparatively longer half-life—the peak withdrawal period, and therefore
the height of seizure risk, arises between the seventh and fourteenth day after the patient’s last
dose. The court will not strike Dr. Merrill’s accurate opinion to that effect merely because he
once erroneously testified otherwise.
2. Exhibit L
Next, defendants seek to strike Exhibit L, an audio recording of an interview of Mr. Aus’
cellmate Justin Bane conducted by plaintiffs’ counsel. The parties appear to be litigating this
issue under the dubious assumption that counsel’s decision to conduct this interview after the
close of fact discovery amounts to a discovery failure under Rule 37(c)(1) of the Federal Rules of

Under Rule 26(e)(2), “additions or changes” to an expert’s report and deposition testimony
may be supplemented up to the time at which pretrial disclosures are due. Because no trial date
has yet been set in this matter, Dr. Merrill’s supplementation is obviously timely.
29

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Civil Procedure. That rule provides that “[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
But defendants have not established that plaintiffs had an obligation—whether under the
initial disclosure requirements or pursuant to defense-propounded discovery requests—to
produce this information. Instead, defendants seem to believe that the close of fact discovery
amounts to the bookending of the record; that only those materials and evidence exchanged
during fact discovery may be used on summary judgment or at trial. The rules do not support this
proposition, and defendants were as able as plaintiffs to find and interview Mr. Bane, an
individual who would have appeared to any reasonably competent lawyer to be an important fact
witness who was within none of the parties’ control.30
In any event, the court need not rely on this interview for purposes of resolving the §
1983 Defendants’ motion for summary judgment. Mr. Bane’s observations of the relevant events
are contained in myriad other materials in the summary judgment record, most prominently in
documents chronicling the Jail’s own post-mortem investigation. The court notes, however, that
the interview will be freely admissible at trial provided it is not otherwise excludable under the
Federal Rules of Evidence.31
IV.

ORDER

For the reasons articulated, the court orders that:
30

Moreover, it is clear from the record that the County already interviewed Mr. Bane when he
was within its custody or control as an inmate at the Jail.
31

The § 1983 Defendants further object that the interview is not supported by an affidavit or
declaration by Mr. Bane. The court construes this objection as questioning the recording’s
authenticity. At trial, plaintiffs will, of course, be required to authenticate any evidence to which
defendants, in good faith, assert an objection relating to authenticity.
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1. The § 1983 Defendants’ motion for summary judgment (ECF No. 82) is DENIED.
2. Wellcon’s motion in limine (ECF No. 88) is GRANTED IN PART AND DENIED
IN PART.
a. Dr. Merrill’s opinion as to the cause of Mr. Aus’ death is excluded.
b. In all other respects, Wellcon’s motion in limine is denied.
3. Wellcon’s motion for summary judgment (ECF No. 88) is DENIED.
4. The § 1983 Defendants’ motion to strike (ECF No. 97) is DENIED.
5. Wellcon’s motion to strike (ECF No. 104) is DENIED AS MOOT.
6. The § 1983 Defendants’ motion in limine (ECF No. 85) is GRANTED IN PART
AND DENIED IN PART.
a. Dr. Merrill’s opinion as to the cause of Mr. Aus’ death is excluded.
b. In all other respects, the § 1983 Defendants’ motion in limine is denied.
7. The parties are ORDERED to meet and confer and, within 28 days of the date of this
order, propose an amended scheduling order containing new deadlines for expert
designation, expert discovery, and any motions seeking to exclude expert testimony.

Signed July 10, 2019
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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