Parenti et al v. County Of Monterey et al, No. 5:2014cv05481 - Document 87 (N.D. Cal. 2017)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART 76 PLAINTIFFS' MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY; AND REFERRING 76 RULE 26 DISCLOSURE ISSUES TO MAGISTRATE JUDGE SUSAN VAN KEULEN FOR DISPOSITION. Signed by Judge Beth Labson Freeman on 5/3/2017. (blflc1S, COURT STAFF) (Filed on 5/3/2017)
Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN JOSE DIVISION 9 10 JACOB PARENTI, et al., Plaintiffs, United States District Court Northern District of California 11 Case No. 14-cv-05481-BLF 15 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY; AND REFERRING RULE 26 DISCLOSURE ISSUES TO MAGISTRATE JUDGE SUSAN VAN KEULEN FOR DISPOSITION 16 [Re: ECF 76] 12 13 14 v. COUNTY OF MONTEREY, et al., Defendants. 17 18 This action arises out of the death of thirty-three year old Jacob Parenti, who died in his 19 cell at the Monterey County Jail where he was being held on a probation violation. Plaintiffs are 20 the Estate of Jacob Parenti, Mr. Parenti’s minor son, and Mr. Parenti’s mother. Plaintiffs assert 21 violations of federal and state law by Monterey County, Sheriff Scott Miller, and Deputy Collins 22 (“County Defendants”), as well as California Forensic Medical Group and Dr. Taylor Fithian 23 (“CFMG Defendants”). 24 Plaintiffs assert that the CFMG Defendants have designated an excessive number of 25 retained and non-retained experts who offer duplicative and/or inadmissible opinions, and that the 26 CFMG Defendants’ disclosures of non-retained experts did not comply with Federal Rule of Civil 27 Procedure 26. Plaintiffs also assert that the County’s retained experts offer inadmissible opinions. 28 Plaintiffs ask the Court to (1) limit the CFMG Defendants to one retained expert on the topics of 1 cause of death and adequacy of medical care, (2) exclude inadmissible opinions of experts retained 2 by the CFMG Defendants and the County Defendants, and (3) prohibit testimony by the CFMG 3 Defendants’s non-retained experts who were not adequately disclosed as required by Rule 26. 4 For the reasons discussed below, Plaintiffs’ motion is GRANTED IN PART AND 5 DENIED IN PART, and the Rule 26 disclosure issues are REFERRED to Magistrate Judge Susan 6 van Keulen for disposition. 7 I. DISCUSSION CFMG Defendants’ Retained Experts – Duplication 8 A. 9 Plaintiffs contend that the CFMG Defendants have designated multiple retained healthcare professionals who will offer duplicative and cumulative opinions regarding the cause of Mr. 11 United States District Court Northern District of California 10 Parenti’s death and whether the medical services provided to Mr. Parenti met the standard of care. 12 Plaintiffs ask the Court to exercise its discretion to limit CFMG to a single retained expert on these 13 topics. In response, the CFMG Defendants assert that their retained experts come from different 14 backgrounds and thus offer different bases for their opinions, and that no one expert’s opinion 15 overlaps in its entirety with any other opinion. 16 “The court may exclude relevant evidence if its probative value is substantially outweighed 17 by a danger of . . . needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Moreover, the 18 Court has authority to limit the extent of discovery otherwise allowed by federal or local rules if 19 “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some 20 other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 21 26(b)(2)(C)(i). 22 The Court finds it impossible to determine based on the current record whether exclusion 23 of any of CFMG’s experts is appropriate under these standards. Trial is not set to commence for 24 eighteen months, and none of the experts has yet been deposed. The Court understands that 25 Plaintiffs brought this motion at least in part for the very purpose of avoiding the costs of those 26 depositions. See Olney Decl. ¶ 4 (“To even depose each of CFMG’s experts at their required rates 27 of up to $650 per hour, Plaintiffs’ costs and fees could easily exceed $30,000.”), ECF 76-1. 28 However, the CFMG Defendants have the right to designate the experts of their choice, and it does 2 1 not appear – at least on this record – that there is complete overlap with respect to any one expert 2 witness which would justify that expert’s exclusion. There is no suggestion that the disclosure is 3 in bad faith or for any improper purpose. Accordingly, Plaintiffs’ request that the Court limit the 4 CFMG Defendants to a single retained expert on the issues of cause of death and standard of care 5 is DENIED. 6 The Court does, however, direct the parties to meet and confer regarding the order of the 7 depositions so that the retained experts who are most likely to testify are deposed first. Plaintiffs 8 may wish to depose the one or two experts most likely to testify and seek permission to conduct 9 late depositions of the other experts after the close of discovery in the event such depositions become necessary. In the event that experts who appeared most likely to testify are not called at 11 United States District Court Northern District of California 10 trial, the Court would entertain a motion by Plaintiffs for cost-shifting with respect to the 12 depositions of those experts. CFMG Defendants’ Retained Experts – Admissibility 13 B. 14 Plaintiffs also challenge the admissibility of certain aspects of the opinions offered by two 15 16 17 of the CFMG Defendants’ retained experts, Kimberly Pearson, R.N., and Frank Sheridan, M.D. 1. Ms. Pearson Ms. Pearson, a Registered Nurse, offers opinions regarding the standard of medical care 18 provided to Mr. Parenti by the CFMG nursing staff and the cause of Mr. Parenti’s death. See 19 Pearson Report, Exh. 2 to Olney Decl., ECF 76-1. Plaintiffs do not dispute Ms. Pearson’s 20 qualifications to offer such opinions. However, Plaintiffs do object to Ms. Pearson’s statements 21 regarding other individuals’ state of mind as well as statements that could be construed as legal 22 opinion. For example, Ms. Pearson opines that the CFMG nursing staff “were not subjectively 23 aware whether or not Mr. Parenti had a serious medical condition beyond signs and symptoms of 24 an upper respiratory infection in January 2014, and they did not consciously disregard his 25 healthcare needs.” Id. at 14. She also opines that “CFMG nursing staff did not attempt to harm 26 Mr. Jacob Parenti.” Id. at 18. Those opinions would be inadmissible at trial. See Siring v. 27 Oregon State Bd. of Higher Educ. ex rel. E. Oregon Univ., 927 F. Supp. 2d 1069, 1077 (D. Or. 28 2013) (“Courts routinely exclude as impermissible expert testimony as to intent, motive, or state 3 1 of mind.”); Pinal Creek Grp. v. Newmont Mining Corp., 352 F. Supp. 2d 1037, 1043 (D. Ariz. 2 2005) (expert witness may not give an opinion on a question of law). 3 Plaintiff’s motion to exclude is GRANTED with respect to Ms. Pearson’s opinions 4 regarding the state of mind of other individuals or questions of law. Ms. Pearson may, however, 5 testify regarding the conduct of individuals in response to properly stated questions. 2. 6 Dr. Sheridan Dr. Sheridan, a pathologist, offers the opinion that the cause of Mr. Parenti’s death was 7 8 acute heroin toxicity. See Sheridan Report, Exh. 2 to Olney Decl., ECF 76-1. Plaintiffs assert that 9 Dr. Sheridan’s opinion is inadmissible because he failed to perform an adequate differential diagnosis. “Differential diagnosis, or differential etiology, is a standard scientific technique of 11 United States District Court Northern District of California 10 identifying the cause of a medical problem by eliminating the likely causes until the most probable 12 one is isolated.” Clausen v. M/V NEW CARISSA, 339 F.3d 1049, 1057 (9th Cir. 2003) (citation 13 omitted). “The first step in the diagnostic process is to compile a comprehensive list of 14 hypotheses that might explain the set of salient clinical findings under consideration.” Id. “After 15 the expert rules in all of the potential hypotheses that might explain a patient’s symptoms, he or 16 she must then engage in a process of elimination, eliminating hypotheses on the basis of a 17 continuing examination of the evidence so as to reach a conclusion as to the most likely cause of 18 the findings in that particular case.” Id. at 1058. Federal courts generally have found properly 19 conducted differential diagnoses to be admissible under Daubert v. Merrell Dow Pharmaceuticals, 20 Inc., 509 U.S. 579 (1993). Clausen, 339 F.3d at 1057. However, a district court is justified in 21 excluding evidence if the expert fails to explain why an alternative cause was ruled out. Id. at 22 1058. 23 Plaintiffs appear to assume that Dr. Sheridan performed a differential diagnosis and they 24 challenge the adequacy of that diagnosis based on Dr. Sheridan’s failure to rule out as a possible 25 cause of death – or even to address – a finding in the Monterey County toxicology report that Mr. 26 Parenti’s blood sample revealed a level of amitriptyline in the toxic range. That argument is 27 unpersuasive, because Dr. Sheridan’s report does not indicate that he utilized differential diagnosis 28 methodology to reach his conclusion regarding cause of death. See Sheridan Report, Exh. 2 to 4 1 Olney Decl., ECF 76-1. Dr. Sheridan states that his opinion is based on review of two separate 2 autopsy reports, microscopic slides from both autopsies, toxicology reports, investigative reports, 3 and other materials. Id. He notes that the autopsy report prepared by Monterey County 4 determined the cause of death to be “Acute mixed drug intoxication,” while the autopsy report 5 prepared by Dr. David Posey determined the cause of death as “viral flu syndrome complicated by 6 pneumonia, sepsis, systemic inflammatory response syndrome, septic shock and multi-organ 7 system failure.” Id. at 125. Dr. Sheridan then opines that “[t]he evidence in this case points 8 clearly to death being the result of acute heroin toxicity” and gives his reasons for rejecting the 9 conclusion of sepsis and organ failure presented in Dr. Posey’s autopsy report. Id. Dr. Sheridan does not purport to address “all of the potential hypotheses that might explain a patient’s 11 United States District Court Northern District of California 10 symptoms” as would be required for a differential diagnosis. See Clausen, 339 F.3d at 1058. 12 Since it does not appear that Dr. Sheridan performed a differential diagnosis at all, Plaintiffs’ 13 argument that he did not perform an “adequate” differential diagnosis provides no basis for 14 exclusion. 15 To the extent that Plaintiffs argue that differential diagnosis is the only methodology which 16 may be used to determine cause of death, such argument is unsupported by the case law. “While 17 the Ninth Circuit has stated that ‘a reliable differential diagnosis passes muster under Daubert,’ it 18 has not required experts to use that method when reaching their conclusions.” Carrion v. United 19 States, No. 2:13-cv-00419-RFB-NJK, 2016 WL 4087104, at *5 (D. Nev. July 28, 2016) (quoting 20 Clausen, 339 F.3d at 1058). Thus a district court need not exclude an expert’s opinion on 21 causation simply because the expert did not apply differential diagnosis. See Millenkamp v. 22 Davisco Foods Int’l, Inc., 562 F.3d 971, 979 (9th Cir. 2009) (Exclusion was not warranted 23 because expert “did not purport to employ differential diagnosis, and Clausen does not preclude 24 the use of all other methods to determine the cause of an illness”); Carrion, 2016 WL 4087104, at 25 *5 (“While differential diagnosis is one universally accepted method for establishing medical 26 causation in certain contexts, a plaintiff can nonetheless present expert medical testimony that 27 does not include this method provided that it meets Rule 702’s threshold reliability requirement.”). 28 The cases cited by Plaintiffs are not to the contrary. In Nelson and Whisnant, the Ninth 5 1 Circuit held that the district courts had not abused their discretion in excluding expert opinions 2 that expressly relied on differential diagnosis but failed to consider alternate causes. Nelson v. 3 Matrixx Initiatives, Inc., 592 F. App’x 591, 592 (9th Cir. 2015); Whisnant v. United States, 274 F. 4 App’x 536, 537 (9th Cir. 2008). In Morin, the Ninth Circuit held that the district court had not 5 abused its discretion in concluding that the expert’s methodology was not sufficiently reliable 6 where it was unclear whether or how the expert had applied differential diagnosis. Morin v. 7 United States, 244 F. App’x 142, 143 (9th Cir. 2007). 8 9 Plaintiffs’ motion to exclude Dr. Sheridan’s opinion for lack of an adequate differential diagnosis is DENIED. County Defendants’ Retained Experts – Admissibility C. 11 United States District Court Northern District of California 10 Plaintiffs also challenge the admissibility of the opinions offered by the County 12 Defendant’s two retained experts, James Sida and Timur Durrani, M.D. 13 1. 14 Mr. Sida is offered as an expert on jail operations, policies and procedures. Plaintiffs 15 contend that he goes well beyond that subject matter and offers numerous inadmissible legal 16 opinions, medical opinions, and other opinions outside the scope of his expertise. The parties, and 17 in particular the County Defendants, have provided what amounts to a line-by-line analysis of Mr. 18 Sida’s lengthy report. See Sida Report, Exh. 1 to Olney Decl., ECF 76-1. The Court declines to 19 address Mr. Sida’s report at that level of detail at this stage of the proceedings, that is, before Mr. 20 Sida is deposed and a year and a half before trial. However, Plaintiffs’ motion is well-taken with 21 respect to the categories of opinions they identify, as discussed below. 22 Mr. Sida a. Legal Opinions 23 “Expert testimony is admissible when it will assist the trier of fact in understanding the 24 evidence or determining a disputed issue of fact.” Pinal Creek Grp., 352 F. Supp. 2d at 1042. 25 However, experts may not opine about how the law should apply to the facts of a particular case. 26 Id. “Testimony which articulates and applies the relevant law . . . circumvents the [fact finder’s] 27 decision-making function by telling it how to decide the case.” Id. (internal quotation marks and 28 citation omitted) (alterations in original). 6 1 Mr. Sida offers a number of opinions purporting to apply the relevant law to the facts of 2 this case in a manner expressly prohibited by the above standards. For example, he states that “it 3 is clear to me that the Sheriff and County is [sic] not indifferent to crowding and other jail issues,” 4 and that “[i]t is my conclusion that the medical services provided in the Monterey County Jail 5 meet Constitutional requirements from a jail management perspective.” Sida Report, Exh. 1 to 6 Olney Decl. at 24, 29, ECF 76-1. These and all similar opinions would be excluded at trial. 7 Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s legal opinions. The Court notes that Mr. Sida does appear to be qualified to testify regarding jail management, 9 policies, and practices. Therefore, while some of his opinions are inartfully cast as legal opinions 10 in his report, he may be able to testify regarding the underlying subject matter of those opinions in 11 United States District Court Northern District of California 8 response to proper questioning. 12 b. 13 Medical Opinions “A witness who is qualified as an expert by knowledge, skill, experience, training, or 14 education may testify” if the expert’s “specialized knowledge will help the trier of fact to 15 understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. Mr. Sida is not a 16 medical professional, yet he offers medical opinions regarding the standard of medical care 17 provided by the CFMG Defendants and the cause of Mr. Parenti’s death. Plaintiffs cite numerous 18 examples of such opinions in their motion, only a few which are set forth here by way of example. 19 Mr. Sida states that “I have found that the Monterey County Sheriff’s Department, by way of their 20 jail staff, does provide adequate custodial medical care which meets the standard of medical care 21 in the community.” Sida Report, Exh. 1 to Olney Decl. at 24-25, 29, ECF 76-1. He also opines 22 that “I believe that Mr. Parenti passed very quickly and therefore it would be unreasonable to 23 expect that Deputy Collins could have foreseen the serious consequence of Mr. Parenti’s ingestion 24 of heroin.” Id. at 35. In another example, Mr. Sida “assert[s] that the Monterey County Sheriff’s 25 Department and their medical service contractor, CFMG did, in fact, comply with professional 26 standards established in the State of California, which includes competent and appropriate medical 27 treatment to Mr. Parenti and their timely response in the emergency that preceded Mr. Parenti’s 28 death.” Id. at 53. These and similar medical opinions would be excluded at trial. 7 1 Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s medical opinions. 2 While Mr. Sida may not offer medical opinion regarding the adequacy of medical services actually 3 provided to Mr. Parenti, he does appear to be qualified to testify regarding the appropriate level of 4 medical services for which a facility such as the Monterey County Jail should contract. c. 5 6 Opinions Regarding Drug Smuggling Mr. Sida offers opinions regarding the smuggling of drugs into the Monterey County Jail. While he appears to be qualified to opine regarding drug smuggling in jails generally, his report 8 does not disclose an adequate basis for his opinions regarding smuggling in Monterey County Jail 9 in particular. See Lopez v. I-Flow Inc., No. CV 08-1063-PHX-SRB, 2011 WL 1897548, at *10 10 (D. Ariz. Jan. 26, 2011) (“Under Rule 26, an expert’s written report must include an explanation 11 United States District Court Northern District of California 7 of the basis and reasons for each expressed opinion.”). Accordingly, Mr. Sida’s opinions 12 regarding drug smuggling in the Monterey County Jail would be excluded at trial. 13 Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s opinions regarding 14 drug smuggling at the Monterey County Jail. He may testify regarding drug smuggling in jails 15 generally. 16 17 d. Opinions Regarding In-Custody Deaths Mr. Sida also offers opinions regarding the statistical significance of the number of in- 18 custody deaths that occurred at the Monterey County Jail. For example, he opines that the three 19 in-custody deaths that occurred in 2014 “are simply events and not trends relating to in custody 20 deaths in the jail.” Sida Report, Exh. 1 to Olney Decl. at 39, ECF 76-1. Mr. Sida’s report does 21 not identify any background, education, or training in the field of statistics. He provides a chart 22 comparing in-custody deaths in Monterey County with such deaths in fourteen other “comparable 23 counties,” but he does not provide an adequate basis for limiting his comparison to the selected 24 counties while excluding dozens of other California counties. Accordingly, Mr. Sida’s opinions 25 regarding the statistical significance of the in-custody deaths at the Monterey County Jail would 26 be excluded at trial. 27 28 Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s opinions regarding the statistical significance of in-custody deaths at the Monterey County Jail. 8 e. 1 Rebuttal Opinion 2 “[A] rebuttal expert cannot offer evidence that does not contradict or rebut another expert’s 3 disclosure.” Theoharis v. Rongen, No. C13-1345RAJ, 2014 WL 3563386, at *3 (W.D. Wash. July 4 18, 2014). Plaintiffs argue that portions of Mr. Sida’s rebuttal report to one of Plaintiffs’ experts, 5 Jeffrey Schwartz, go beyond mere rebuttal and are intended to buttress opinions offered in Mr. 6 Sida’s own expert report. See Sida Rebuttal Report, Exh. 10 to Olney Decl., ECF 76-2. Plaintiffs’ 7 argument is well-taken, and the County Defendants offer no meaningful opposition. 8 9 10 Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s rebuttal opinions which do not actually contradict or rebut Mr. Schwartz’s opinion. The Court notes that the County Defendants argue that the rebuttal report of Plaintiffs’ United States District Court Northern District of California 11 expert, Mr. Schwartz, also exceeds the permissible scope of rebuttal evidence. The County 12 Defendants have not moved to exclude testimony of Plaintiffs’ expert, and thus their argument 13 regarding Mr. Schwartz’s rebuttal report is not addressed in this order. 14 2. Dr. Durrani 15 Dr. Durrani offers opinions primarily regarding the services provided by the Monterey 16 County Public Health Department. See Durrani Report, Exh. 1 to Olney Decl., ECF 76-1. For 17 example, he opines that the Department “acted appropriately in assisting the jail by balancing the 18 needs to protect public health while not placing an onerous burden on the jail, the staff and the 19 inmates.” Id. at 78. Dr. Durrani further opines that the Public Health Department “meets the 20 standard of care expected of local health officers when dealing with disease outbreaks in 21 correctional facilities. Id. at 79. Plaintiffs contend that Dr. Durrani is not qualified to give these 22 and similar opinions because he does not have any background in the correctional field. Plaintiffs 23 also contend that Dr. Durrani does not actually offer any original analysis but merely parrots the 24 deposition testimony of Ms. Kristy Michie. 25 The Court concludes that Dr. Durrani may testify on topics within his area of expertise, 26 such as the functioning of the Monterey County Public Health Department and the standard of 27 care for a county public health department. However, the Court is troubled by Dr. Durrani’s 28 opinions regarding a correctional facility’s ability to implement commonly applied public health 9 1 techniques for identifying the nature of a contagious pathogen and mitigating its transmission. It 2 appears that Dr. Durrani has relied on Ms. Michie’s testimony regarding the correctional facility’s 3 capabilities. To the extent that Dr. Durrani’s opinions are based solely on Ms. Michie’s testimony, 4 they will be excluded at trial. See Dep’t of Toxic Substances Control v. Technichem, Inc., No. 12- 5 CV-05845-VC, 2016 WL 1029463, at *1 (N.D. Cal. Mar. 15, 2016) (excluding expert opinion in 6 part because expert “often does no more than regurgitate information given to him by other 7 sources”). At the hearing counsel for the County Defendants stated that Dr. Durrani’s opinions are 8 offered only to counter any claim of liability based on deficiencies by the Monterey County Public 10 Health Department, not to bolster the County’s position regarding the jail’s response. Insofar as it 11 United States District Court Northern District of California 9 is not clear whether this issue will be presented at trial, and the County Defendants’ clarification 12 of Dr. Durrani’s potential testimony, the Court is not prepared to exclude Dr. Durrani entirely at 13 this time. Accordingly, Plaintiffs’ motion to exclude Dr. Durrani is GRANTED to the extent that his 14 15 opinions are based solely on Ms. Michie’s testimony and otherwise is DENIED. CFMG Defendants’ Non-Retained Experts – Rule 26 Disclosure Issues 16 D. 17 Finally, Plaintiffs argue that the CFMG Defendants’ non-retained experts should be 18 stricken because the CFMG Defendants’ disclosures did not satisfy Federal Rule of Civil 19 Procedure 26. The Rule 26 disclosure issues raised by Plaintiff are REFERRED to Magistrate 20 Judge Susan van Keulen for disposition. Judge van Keulen’s chambers will contact counsel if 21 Judge van Keulen wishes supplemental briefing or oral argument on these issues. 22 II. ORDER 23 IT IS HEREBY ORDERED THAT: 24 (1) expert on the issues of cause of death and standard of care is DENIED; 25 26 (2) Plaintiff’s motion to exclude Ms. Pearson’s opinions regarding the state of mind of other individuals and questions of law is GRANTED; 27 28 Plaintiffs’ request that the Court limit the CFMG Defendants to a single retained (3) Plaintiffs’ motion to exclude Dr. Sheridan’s opinions is DENIED; 10 1 (4) categories of opinions identified in this order and otherwise is DENIED; 2 3 (5) Plaintiffs’ motion to exclude Dr. Durrani’s opinions is GRANTED IN PART as to opinions based solely on Ms. Michie’s testimony and otherwise is DENIED; and 4 5 Plaintiffs’ motion to exclude Mr. Sida’s opinions is GRANTED IN PART as to the (6) Plaintiffs’ motion to exclude the CFMG Defendants’ non-retained experts for 6 failure to comply with Federal Rule of Civil Procedure 26 is REFERRED to 7 Magistrate Judge Susan van Keulen for disposition. 8 9 10 United States District Court Northern District of California 11 Dated: May 3, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11