Latson v. Clarke et al

Filing 245

OPINION and ORDER denying 151 Motion to Strike ; denying 174 Motion to Strike ; granting 183 Motion to Limit the Testimony of Dr. Aradhana Bela Sood; granting in part and denying in part 185 Motion to Exclude or Limit Certain Expert Testimony. Signed by Judge James P. Jones on 8/16/18. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
REGINALD CORNELIUS LATSON,
Plaintiff,
v.
HAROLD W. CLARKE, ET AL.,
Defendants.

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Case No. 1:16CV00039
OPINION AND ORDER
By: James P. Jones
United States District Judge

Caitlin Marie Kasmar, Andrew R. Louis, and John Bell Williams III,
Buckley Sandler LLP, Washington, D.C., and Elliot M. Mincberg, Washington
Lawyers’ Committee for Civil Rights and Urban Affairs, Washington, D.C., for
Plaintiff; Jeff W. Rosen, Pender & Coward, PC, Virginia Beach, Virginia, and
Laura Maughan, Office of the Attorney General, Richmond, Virginia, for
Defendants.
In advance of trial, the parties have filed motions in limine seeking the
exclusion of certain expert witness opinion testimony. The motions have been
fully briefed and are ripe for decision.
The plaintiff, Reginald Cornelius Latson, a former inmate with the Virginia
Department of Corrections (“VDOC”), is alleged to suffer from autism spectrum
disorder, post-traumatic stress disorder, and intellectual disability. He asserts in
this action that he was denied proper medical treatment for these conditions and
subjected to abusive conduct, lack of due process, and retaliation during his
incarceration for eight months in 2014-2015 at the Marion Correctional Treatment

Center (“MCTC”), a VDOC facility. In 2015, at age 24, he was pardoned by the
Governor of Virginia.

Latson asserts claims based on the First, Eighth, and

Fourteenth Amendments to the Constitution, as well as the Americans with
Disabilities Act and the Rehabilitation Act. The present defendants are the VDOC,
Harold W. Clarke, Director of VDOC, and Larry Jarvis and Dara Robichaux, the
former Warden and Assistant Warden, respectively, of MCTC.
Latson moves to exclude or limit the trial testimony of three of defendants’
designated experts — Aradhana Bela Sood, M.D., James R. Thompson, and Carl
A. Manis. In turn, the defendants wish to exclude the testimony of one of Latson’s
experts, Johannes Rojahn, Ph.D. I will consider these motions seriatim. 1
Aradhana Bela Sood, M.D.
Dr. Sood is a psychiatrist and Professor of Psychiatry and Pediatrics at
Virginia Commonwealth University and has been board certified in both adult and
child psychiatry for many years. She is a retained expert for the defendants and
has submitted two disclosures in the form of letter reports, the first dated October
11, 2017, and a supplemental report dated October 27, 2017. In addition, her
1

Of course, pretrial rulings on motions in limine as to particular evidence are
usually conditional, based upon events at trial. United States v. Dalton, No.
1:17CR00024, 2018 WL 356205, at *1 n.1 (W.D. Va. Jan. 10, 2018). However, in the
event counsel desires the court to reconsider any ruling limiting or excluding testimony
made herein because of later events at trial, I direct counsel not to refer to or seek to
introduce the subject evidence without first seeking a ruling by the court outside of the
jury’s presence.
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deposition was taken by the plaintiff’s counsel on December 4, 2017. Dr. Sood has
never examined Latson, and bases her medical opinions on her knowledge and
experience and her review of relevant documents.
Latson does not contest Dr. Sood’s qualifications or her ability to state
opinions as to his medical conditions and treatment. Instead, Latson wishes to
exclude what he views as inadmissible opinions by Dr. Sood regarding Lisa
Greenman, an attorney who served as an advocate for Latson during his
incarceration and who likely will be called as a fact witness for him at trial.
Presumably, Latson intends to use Greenman’s communications with
MCTC staff to demonstrate that they were aware of his suffering but failed to
adequately treat him. In her supplemental report, Dr. Sood addresses Greenman’s
communications with MCTC and opines that Greenman’s conclusions regarding
Latson’s conditions were erroneous and of no value to the treatment staff. While
those opinions are not objectionable on their own, some of Dr. Sood’s statements
are beyond the scope of proper expert testimony. For example, Dr. Sood states that
Greenman’s emails “were sent to create an impression that Mr. Latson was
suffering because of the conditions of the MCTC and that he was regressing.”
Mem. Supp. Pl.’s Mot. to Limit Expert Test. of Dr. Aradhana Bela Sood, Louis
Decl. Ex. B, Sood Suppl. Report 5, ECF No. 184-3 (emphasis added). In addition,
Dr. Sood is of the view that Greenman’s frequent emails to MCTC staff “are the
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foundation of creating a documentation trail that underscores the allegations in
this litigation with Mr. Latson’s treatment.” Id. at 4 (emphasis added). While Dr.
Sood can explain why, in her opinion, Greenman’s concerns about Latson’s
condition were not useful because they were contrary to the recorded observations
of Latson by MCTC staff, her comments suggesting that Greenman was simply
trying to build a case are out of bounds.

Conclusions about Greenman’s

motivations and credibility are best left to the jury, without comment by Dr. Sood.
Johannes Rojahn, Ph.D.
The defendants have moved to strike the expert designation of Johannes
Rojahn, Ph.D. Dr. Rojahn is a Professor Emeritus of Psychology at George Mason
University who was retained in 2014 by the U.S. Department of Justice to evaluate
Latson’s treatment at MCTC prior to the commencement of this litigation. He
prepared a report of his evaluation dated February 16, 2015, in which he found that
the treatment of Latson’s behavioral problems at MCTC was not effective. The
defendants assert that Latson’s expert designation of Dr. Rojahn was untimely and
his opinions are irrelevant.
Despite best efforts, the scheduling in this case of pretrial disclosures,
discovery, and the trial itself has proceeded in fits and starts and viewed as whole,
is somewhat muddled. Following the transfer of the case to this court from the
Eastern District of Virginia, the initial Scheduling Order, entered November 1,
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2016, set a trial for December 2017. On the joint motion of the parties, a first
Amended Scheduling Order, entered July 31, 2017, continued the trial to February
of 2018. That order also required Latson to “serve reports from retained expert
witnesses on the opposing parties by no later than 150 days before trial.” ECF No.
132. Approximately a month before the scheduled trial, the defendants moved to
postpone it on the ground that they had lost their lead attorney, which motion was
granted. On January 31, 2018, the court scheduled the present trial dates of
January 7 to 21, 2019.
On December 8, 2017, Latson disclosed Dr. Rojahn as a non-retained expert
pursuant to Federal Rule of Civil Procedure 26(a)(2)(C). At that time the case was
still set for trial in February of 2018, and the defendants argue that the disclosure
was untimely and prejudicially so, since the discovery cutoff was (and remains)
January 12, 2018.
In response, Latson points out that Dr. Rojahn is a non-retained expert and
thus his disclosure was not scheduled by order of the court but was governed by
Federal Rule of Civil Procedure 26(a)(2)(D)(i) which requires expert disclosures to
be made 90 days before trial. Thus the remedy lies in Rule 37(c)(1) (failure to
disclose or admit) rather than Rule 16(f)(1)(C) (failure to obey a scheduling order).
Latson concedes that his disclosure of Dr. Rojahn was ten days late, but argues that
such untimely disclosure was substantially justified and harmless. Specifically,
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Latson contends that (1) the defendants suffered no harm and could have cured any
surprise; (2) there will be no disruption to trial, which is scheduled months from
now; (3) Dr. Rojahn’s testimony is important; and (4) the delay in disclosure was
justified. See Rambus, Inc. v. Infineon Techs. AG, 145 F. Supp. 2d 721, 726 (E.D.
Va. 2001) (describing proper factors for court to consider under Rule 37(c)(1)).
Although I do not find Latson’s argument regarding justifiable delay persuasive, I
do agree with the rest of his contentions.2
“District courts are accorded broad discretion in determining whether a
party’s nondisclosure or untimely disclosure of evidence is substantially justified
or harmless.” Bresler v. Wilmington Trust Co., 855 F.3d 178, 190 (4th Cir. 2017)
(internal quotation marks and citations omitted).

Courts are guided by the

following factors when making this determination: (1) the surprise to the party
against whom the evidence would be offered; (2) the ability of that party to cure
the surprise; (3) the extent to which allowing the evidence would disrupt trial; (4)
the importance of the evidence; and (5) the nondisclosing party’s explanation for
untimely disclosure. Bresler, 855 F.3d at 190; S. States Rack & Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).

2

Latson argues that disclosure of Dr. Rojahn was justified due to counsel’s
preparations for an upcoming mediation of the case. I find this argument unpersuasive, in
light of the number of attorneys representing Latson and the relatively small effort
required to make a timely disclosure.
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The primary purpose of Rule 37(c) is to prevent ambush at trial, and “the
focus of a preclusion inquiry is mainly upon surprise and prejudice.” Michelone v.
Desmarais, 25 F. App’x 155, 158 (4th Cir. 2002) (unpublished) (citation omitted).
The defendants cannot reasonably claim surprise by the ten-day untimely
disclosure because they had Dr. Rojahn’s 2015 report before litigation
commenced. In fact, Latson obtained the report through discovery produced by the
defendants. The report has also been mentioned on more than one occasion during
depositions. See e.g., Opp’n Defs.’ Mot. Strike Expert Designation Johannes
Rojahn, Williams Decl. Ex. A, Sood Dep. 175, ECF No. 193-2; id at Ex. B,
McGrady Dep. 191, ECF No. 193-3. Latson intends to call Dr. Rojahn to testify
about the facts and opinions set forth in his report. Therefore, if there is any
surprise to the defendants, it is limited simply to the fact that Dr. Rojahn may
testify at trial, not to any of the substantive opinions in his report.
Of course, if there was any doubt as to Dr. Rojahn’s opinions, the defendants
could have easily cured such doubt by deposing Dr. Rojahn. After the disclosure,
they still had over a month within the discovery period to do so. Moreover, at no
time did the defendants seek permission to do so after the close of discovery.
Instead, they waited until after the discovery and summary judgment deadlines to
file their present motion. There would have been no actual disruption to trial or
other docket concerns, because trial is not scheduled to begin until January 7,
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2019.

See Scott v. Holz-Her, U.S., Inc., Civil No. 6:04CV00068, 2007 WL

3171937, at *7 (W.D. Va. Oct. 26, 2007) (finding that any potential harm to late
expert disclosure was mitigated by trial date four months away).
The third factor, importance of the evidence, also weighs against the
defendants’ motion. Dr. Rojahn conducted an independent evaluation of Latson
and the conditions of his confinement during the period at issue in this case. His
report was based on a first hand interview with Latson and MCTC staff.
Therefore, his testimony will be important in providing insight into Latson’s
condition during his incarceration at MCTC, which makes his testimony uniquely
relevant.
The defendants also argue that Dr. Rojahn’s testimony is irrelevant because
his opinions demonstrate that he felt Latson would be better off out of prison. For
the same reasons that Dr. Rojahn’s testimony is important under the previous
analysis, I find his opinions are relevant and admissible.
James R. Thompson and Carl A. Manis.
Latson moves to exclude the testimony of James R. Thompson and Carl A.
Manis, both VDOC employees. Thompson is a psychologist providing mental
health treatment to inmates at Buckingham Correctional Center, a VDOC facility.
He holds a masters degree in psychology and has been employed in similar
positions by the VDOC for 31 years at several different prisons. Manis is the
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Warden of Wallens Ridge State Prison, a VDOC facility. He has been employed
by the VDOC for 29 years and has been a prison warden since 2011. Both
witnesses were disclosed as non-retained experts on October 27, 2017, in the form
of letter reports dated that day. 3 Their depositions were taken on December 12,
2017 (Manis) and December 14, 2017 (Thompson). Thereafter, on December 19,
2017 (Manis) and December 21, 2017 (Thompson), the defendants provided
supplemental report letters to Latson’s counsel.
In

summary,

Thompson

opines

that

“Latson’s

health

care

and

accommodations were reasonable,” and “MCTC was not deliberately indifferent to
Mr. Latson’s disability.” Mem. Supp. Mot. Exclude or Limit Certain Expert Test,
Louis Decl. Ex. A, Thompson Report 3, ECF No. 186-2. Thompson also is of the
opinion that “to a reasonable degree of medical certainty, Mr. Latson’s medical
care at MCTC was adequate.” Id. at 4. His opinions were based upon his “review
of the documents and experience in the VADOC.” Id. at 3.
Manis opines that “Latson’s conditions of confinement at MCTC were
reasonable,” “Latson’s access to medical and mental health services were [sic]
more than adequate,” and “[t]he accommodations received by Mr. Latson while he
was housed at MCTC were reasonable.” Id. at Ex. B, Manis Report 4-5, ECF No.
3

October 27, 2017, (120 days before trial) was the deadline date for
“responding reports from retained rebuttal expert witnesses,” according to the July
31, 2017, Amended Scheduling Order, ECF No. 132.
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186-3. Manis bases his opinions “on [his] experiences in the VADOC,” as well as
VDOC policies and procedures. Id. at 4.
Latson has filed two motions seeking to exclude testimony from these
witnesses.

In his first motion, ECF No. 151, filed January 2, 2018, Latson

contends that the disclosures were untimely and inadequate. He argues that (1) the
witnesses were retained or specially employed to provide expert testimony, rather
than being non-retained experts as claimed, and accordingly the reports lack the
requirements of a retained expert’s disclosure; and (2) that the witnesses were not
true rebuttal experts, and thus their disclosures were untimely. Latson complains
that the untimeliness particularly prejudiced him because the supplemental
disclosures came after the witnesses’ depositions.

In response, the defendants

argue that Thompson and Manis are in fact non-retained rebuttal experts. They
contend that the supplemental report letters contain no substantive changes to the
opinions of the witnesses previously disclosed, but merely add information
relevant to that required for disclosures of retained experts, as “an act of
precaution.” Defs.’ Resp. Opp’n Mot. Strike and Exclude Test. 9, ECF No. 158.
Finally, the defendants assert that any irregularities in the disclosures should not
result in any exclusion of the witnesses’ testimony or other sanction.
In support of his second motion to exclude Thompson and Manis, filed
February 28, 2018, after the trial had been continued to 2019, Latson contends that
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neither witness “possesses relevant experience outside the VDOC system that
would allow him to apply industry standards or common practices to the issues
upon which they opine.” Mem. Supp. Mot. Exclude or Limit Certain Expert Test.
1, ECF No. 186. Moreover, it is argued, neither expert attempts to address any
such industry-wide standards, customs, or practices regarding adequate care and
treatment. In the alternative, Latson requests that their testimony be limited to
rebutting whether MCTC followed VDOC policies with respect to his treatment.
Certainly Thompson’s academic background affords him specialized
knowledge in psychology. However, he does not rely on that knowledge as a basis
for his opinions.

Instead, his opinion that Latson’s health care and

accommodations were reasonable is based solely on a comparison with VDOC
policies. For example, he states that VDOC “expedited a direct assignment from a
Virginia jail to MCTC. This is the first time a direct jail intake is known to have
happened at MCTC in at least 13 years. This assignment to a treatment center
represents an extraordinary accommodation in support of Mr. Latson’s health and
well-being.” Id. at Louis Decl. Ex. A, Thompson Report 3, ECF No. 186-2.
Furthermore, Thompson basis his opinion that Latson’s accommodations and
health care were reasonable because VDOC policy “requires that psychiatrists see
patients at MCTC a minimum of once every 60 days,” and Latson was treated “on
an average of once every fourteen days.” Id.
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I also agree with Latson that Manis has insufficient specialized knowledge
outside of the VDOC setting, and that his opinions are essentially based on VDOC
standards. Manis reaches his opinions by comparing the policies and standards set
forth in the VDOC Operating Procedures with the treatment Latson was provided.
Manis’ experience is limited to the VDOC, and that experience is inapplicable to
the issue of whether Latson’s treatment and care was reasonable compared with
objective, non-VDOC standards, customs or practices. See Fed. R. Evid. 702
advisory committee’s note to 2000 amendments (where expert relies solely on
experience, he must explain “why that experience is a sufficient basis for [his]
opinion.”). 4
Because I find that the defendants have failed to show that Thompson and
Manis have sufficiently supported their opinions on the reasonableness or
adequacy of the medical treatment or conditions of confinement of the plaintiff or
whether such treatment or conditions met the standard of care, I will exclude such
testimony. On the other hand, I find that their testimony as to the policies and
procedures of the VDOC applicable to the plaintiff at MCTC and their opinions as
to the extent to which the medical treatment and conditions of confinement of the

In his deposition, Manis testified that his experience outside of the VDOC that
informed his opinion was a trip “six or eight weeks ago” to a mental health correctional
facility in North Carolina and “[i]t was very similar to what [MCTC] does.” Louis Decl.
Ex. D, Manis Dep. 175, ECF No. 186-5. I do not find that limited experience sufficient
to qualify the witness to give the opinions sought.
4

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plaintiff met or exceeded the minimum requirements of such policies and
procedures is relevant to issues in the case. See Porter v. Clarke, 290 F. Supp. 3d
518, 532 (E.D. Va. 2018) (discussion of relevancy of prison policies regarding
proof of subjective element of Eighth Amendment deliberate indifference claim),
appeal docketed, No. 18-6257 (4th Cir. Mar. 15, 2018). Such testimony is
supported by the witnesses’ experience, and will assist the jury in resolving factual
disputes in the case.
Under the circumstances, I find that any procedural defects in the disclosures
of these witnesses, even if shown, are harmless, and I will deny Latson’s motion to
exclude their testimony on such grounds.
Accordingly, it is ORDERED as follows:
1.

Plaintiff Reginald Cornelius Latson’s Motion to Strike and Exclude

the Reports and Testimony of Purported Experts Carl A. Manis and James R.
Thompson, ECF No. 151, is DENIED;
2.

Defendants’ Motion to Strike Expert Designation of Johannes Rojahn,

Ph.D, ECF No. 174, is DENIED;
3.

Plaintiff Reginald Cornelius Latson’s Motion to Limit the Testimony

of Dr. Aradhana Bela Sood, ECF No. 183, is GRANTED. Dr. Sood will not be
permitted to state her opinion as to the motivations or credibility of Lisa Greenman
in Greenman’s interactions with MCTC staff concerning the plaintiff; and
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4.

Plaintiff Reginald Cornelius Latson’s Motion to Exclude or Limit

Certain Expert Testimony, ECF No. 185, is GRANTED IN PART AND DENIED
IN PART. Witnesses Thompson and Manis will be permitted to testify as to the
policies and procedures of the VDOC applicable to the plaintiff at MCTC and the
extent to which the medical treatment and conditions of confinement of the
plaintiff met or exceeded the minimum requirements of such policies and
procedures. They will not be permitted to testify as to their opinions of the
reasonableness or adequacy of the medical treatment or conditions of confinement
of the plaintiff or whether such treatment or conditions met the standard of care.
ENTER: August 16, 2018
/s/ James P. Jones
United States District Judge

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