Nagle et al v. Gusman et al, No. 2:2012cv01910 - Document 286 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting in part and denying in part Plaintiffs' MOTION 246 to exclude the testimony of Dr. James F. Hooper under Federal Rule of Evidence 702.. Signed by Judge Sarah S. Vance on 2/10/16. (jjs)
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Nagle et al v. Gusman et al Doc. 286 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARGARET GOETZEE NAGLE and J OHN ERIC GOETZEE CIVIL ACTION VERSUS NO. 12-1910 SHERIFF MARLIN GUSMAN, ET AL. SECTION "R" (2) ORD ER AN D REASON S Plaintiffs Margaret Goetzee Nagle and J ohn Eric Goetzee m ove to exclude the testim ony of Dr. J am es F. Hooper under Federal Rule of Evidence 70 2. Dr. Hooper is the proposed expert of defendant Dr. Charles “Mike” Higgins. For the following reasons, the Court GRANTS IN PART and DENIES IN PART the m otion. I. BACKGROU N D A. Factu al Backgro u n d This action arises out of the August 7, 20 11 suicide of William Goetzee, an inm ate of Orleans Parish Prison (“OPP”). Following Goetzee’s death, Margaret Goetzee Nagle and J ohn Eric Goetzee filed this section 1983 civil rights suit and state-law suit against num erous em ployees of the Orleans Parish Sheriff’s Office, including Dr. Charles “Mike” Higgins.1 Plaintiffs are 1 R. Doc. 1. Dockets.Justia.com the siblings of decedent William Goetzee.2 Dr. Higgins is a licensed psychiatrist, and at the tim e of Goetzee’s death, Higgins was the Director of Psychiatric Services for the Sheriff’s Office. According to the job description for this position, Dr. Higgins was generally responsible for overseeing the provision of psychiatric services within OPP and for supervising the daily operations of OPP’s Mental Health Unit.3 Goetzee was a commander in the United States Coast Guard Reserve and a civilian em ployee of the Coast Guard. On the m orning of August 2, 20 11, Goetzee approached a m arked Federal Protective Services vehicle occupied by a uniform ed law-enforcem ent officer. Goetzee opened the front passenger door, entered the vehicle, and seated him self in the front passenger seat. Goetzee lunged for the officer’s weapon, exclaim ing, “I want to kill m yself, give m e your gun.” Federal agents arrested Goetzee and transported him to OPP later that day. The next day, on August 3, prison officials brought Goetzee to federal court for his initial appearance on charges related to his conflict with the 2 The Court derives the following factual sum m ary from its earlier sum m ary judgm ent order. See R. Doc. 113. The Court has indicated where it relies on newlysupplied inform ation. 3 R. Doc. 284, Exhibit B (attached in support of Dr. Higgins’s Motion for Sum m ary J udgm ent). 2 federal officer during his suicide attem pt the day before. While at court, Goetzee behaved strangely in the presence of his attorney, federal officers, and the judge. Goetzee’s attorney inform ed the court that he was “obviously having m ental issues.” Back at OPP, a nurse alerted Dr. Higgins to Goetzee’s behavior, and Dr. Higgins ordered that Goetzee be transported to University Hospital to “rule out delirium .”4 Two days later, on August 5, University Hospital discharged Goetzee back to OPP with a diagnosis of psychosis. On August 6, Dr. Higgins conducted an “Initial Psychiatric Evaluation” of Goetzee. From this evaluation, Dr. Higgins ordered that Goetzee be housed in OPP’s Mental Health Tier, given a “Suicide Sm ock,” and placed on direct observation.5 Dr. Higgins’s “direct observation” order required a Sheriff’s Office em ployee to “m aintain direct and constant observation” of Goetzee at all tim es, i.e., “suicide watch.” Goetzee was under suicide watch on August 6 and 7, 20 11. On the m orning of August 7, OPP Deputy William Thom pson was assigned to m aintain supervision of Goetzee. During his suicide watch shift, Thom pson left his post at least three tim es, leaving Goetzee unobserved each tim e. 4 R. Doc. 266, Exhibit I (attached in opposition to Defendants’ Motions for Sum m ary J udgm ent). 5 Id. 3 During these absences, Goetzee went unobserved for an hour and a half, fifteen m inutes, and two hours, respectively. During Thom pson’s final absence, an inm ate notified another on-duty officer that Goetzee was lying on the floor of his cell, unresponsive. Apparently, Goetzee had repeatedly swallowed wads of toilet paper while Thom pson was not m onitoring him and asphyxiated him self. As a result of these events, Thom pson pleaded guilty to the felony of m alfeasance in office. While under oath, and as part of his plea, Thom pson accepted the state’s factual basis for the charge. The factual basis specified that Thompson was assigned to monitor Goetzee continuously; that Thompson left his post three tim es for one and one-half hours, fifteen m inutes, and two hours, respectively; that another inmate discovered Goetzee unconscious while Thom pson was not m onitoring him ; and that Thom pson had fraudulently subm itted an observation checklist for August 7, 20 11, because the checklist indicated that Thom pson had continuously m onitored Goetzee all day when in fact Thom pson had not done so. In addition, the Court has already granted sum m ary judgm ent in favor of plaintiffs on their section 1983 and state-law claim s against Thom pson. The Court has also granted sum m ary judgm ent against Sheriff Gusm an on plaintiffs’ state-law vicarious liability claim s and partial sum m ary judgm ent 4 on plaintiffs’ section 1983 claim s. B. D r. Jam e s H o o p e r’s Pro ffe re d Exp e rt Op in io n Dr. Higgins enlisted J am es F. Hooper, M.D., as an expert witness to testify on his behalf. Dr. Hooper is a board-certified neurologist and psychiatrist who is licensed to practice in Alabam a. Dr. Hooper served as the Chief Psychologist for the Tuscaloosa County J ail from 20 0 4 to 20 10 .6 Dr. Hooper purports to offer eleven expert opinions about “the reasonableness of the actions and conduct of Dr. Charles M. Higgins and others.”7 Plaintiffs now m ove to exclude Dr. Hooper’s testim ony and expert report for two reasons.8 First, plaintiffs argue that Dr. Hooper has im perm issibly opined on witness credibility. Second, plaintiffs argue that one of Dr. Hooper’s opinions purports to offer a legal conclusion about which he cannot testify. Plaintiffs’ argum ents regarding witness credibility rely on Dr. Hooper’s 6 R. Doc. 246, Exhibit B, at 1. 7 See generally id. Dr. Hooper appears to have m isnum bered the last three of his enum erated opinions; regardless, there are eleven total. 8 R. Doc. 246; R. Doc. 246-1. Plaintiffs also argue in a footnote that Dr. Hooper attem pts to offer an expert opinion on Deputy Thom pson’s conduct and that this opinion is nothing m ore than a statem ent of uncontested facts. See R. Doc. 264-1 at 2 n. 1. The Court finds this argum ent unpersuasive. It is true that none of the facts about Thom pson’s conduct is in dispute given Thom pson’s guilty plea, the accom panying factual basis, and the sum m ary judgm ent granted by this Court. Fairly read, however, Dr. Hooper’s report relies on Thom pson’s conduct in form ing his opinion about the scope of Dr. Higgins’s duties and the reasonableness of his behavior. 5 deposition testim ony that he believed that “Dr. Higgins’ version of events was m ore truthful” than an explanation provided by another witness.9 At the deposition, plaintiffs’ counsel repeatedly asked Dr. Hooper whether he determ ined that Dr. Higgins was “truthful” or “credible” before form ing his expert opinions. Dr. Hooper responded affirm atively when asked if he “factored” Dr. Higgins’s “version of events” into his opinions.10 Later in his deposition, Dr. Hooper also explained that he reviewed all of the evidence, but declined to m ake any credibility determ inations. Specifically, Dr. Hooper testified that he did not “give m ore weight” to or prefer Dr. Higgins’s testim ony over the testim ony of other witnesses.11 Plaintiffs also argue that one of Dr. Hooper’s opinions is instead a legal conclusion. In his expert report, Dr. Hooper opines that “Dr. Higgins was not ‘deliberately indifferent’ to the plight of inm ates” at OPP.12 He notes as support for this opinion that “Dr. Higgins repeatedly tried to correct the lack of services and staffing” and that “Dr. Higgins was the sole psychiatrist who 9 R. Doc. 251, Exhibit B. 10 Id. at 10 9-12. 11 R. Doc. 251, Exhibit A, at 210 -12. 12 R. Doc. 246, Exhibit B, at 7. 6 stayed after Hurricane Katrina to care for the inm ates.”13 At his deposition, Dr. Hooper also testified at length about whether Dr. Higgins was deliberately indifferent. Dr. Hooper defined “deliberate indifference” as “not car[ing] at all and not do[ing] anything to try to fix things.”14 Dr. Hooper also offered exam ples of what, in his m ind, does and does not constitute deliberate indifference.15 Finally, Dr. Hooper explained that he bases his understanding of deliberate indifference on his reading of two “landm ark” Suprem e Court cases. Dr. Hooper also com pared the facts of those cases to the conduct of Dr. Higgins.16 The Court now analyzes whether Dr. Hooper’s opinions are adm issible. II. LEGAL STAN D ARD When expert testim ony offered by one party is subject to a Daubert challenge, the court m ust act as a “gatekeeper” under Federal Rule of Evidence 70 2. A district court has considerable discretion to adm it or exclude expert 13 Id. 14 R. Doc. 251, Exhibit A, at 132. 15 Id. at 132-33, 135, 151. 16 Id. at 20 9-10 . 7 testim ony under Rule 70 2. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 20 0 F.3d 358, 371 (5th Cir. 20 0 0 ). Rule 70 2, which governs the adm issibility of expert witness testim ony, provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education m ay 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 determ ine a fact in issue; (b) the testim ony is based on sufficient facts or data; (c) the testim ony is the product of reliable principles and m ethods; and (d) the expert has reliably applied the principles and m ethods to the facts of the case. Fed. R. Evid. 70 2. In Daubert v. Merrell Dow Pharm aceuticals, Inc., the Suprem e Court held that Rule 70 2 requires the district court to act as a gatekeeper to ensure that “any and all scientific testim ony or evidence adm itted is not only relevant, but reliable.” 50 9 U.S. at 589; see also Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 147 (1999) (clarifying that the Daubert gatekeeping function applies to all form s of expert testim ony). The Court’s gatekeeping function thus involves a two-part inquiry into reliability and relevance. First, the Court m ust determ ine whether the proffered expert testim ony is reliable. The party offering the testim ony bears the burden of establishing its reliability by a preponderance of the evidence. See Moore v. Ashland 8 Chem . Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry requires the Court to assess whether the reasoning or m ethodology underlying the expert’s testim ony is valid. See Daubert, 50 9 U.S. at 592-93. The aim is to exclude expert testim ony based m erely on subjective belief or unsupported speculation. See id. at 590 . The Court in Daubert articulated a flexible, non-exhaustive, five-factor test to assess the reliability of an expert’s m ethodology: (1) whether the expert’s theory can be or has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; (4) the existence and m aintenance of standards and controls; and (5) the degree to which the technique or theory has been generally accepted in the scientific com m unity. Id. at 593-95. The Suprem e Court has em phasized, however, that these factors “do not constitute a ‘definitive checklist or test.’” Kum ho, 526 U.S. at 150 (quoting Daubert, 50 9 U.S. at 593). Rather, district courts “m ust have considerable leeway in deciding in a particular case how to go about determ ining whether particular expert testim ony is reliable.” Id. at 152. A district court’s gatekeeper function does not replace the traditional adversary system or the role of the jury within this system . See Daubert, 50 9 U.S. at 596. As the Suprem e Court noted in Daubert: “Vigorous 9 cross-exam ination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible evidence.” Id. The Fifth Circuit has held that, in determ ining the adm issibility of expert testim ony, district courts m ust accord proper deference to “the jury’s role as the proper arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its adm issibility and should be left for the jury’s consideration.” United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty ., Miss., 80 F.3d 10 74, 10 77 (5th Cir. 1996) (quoting Viterbo v. Dow Chem . Co., 826 F.2d 420 , 422 (5th Cir. 1987)). Second, the Court m ust determ ine whether the expert’s reasoning or m ethodology is relevant. The question here is whether the reasoning or m ethodology “fits” the facts of the case and will thereby assist the trier of fact to understand the evidence. See Daubert, 50 9 U.S. at 591. “[F]undam entally unsupported” opinions “offer[] no expert assistance to the jury” and should be excluded. Guile v. United States, 422 F.3d 221, 227 (5th Cir. 20 0 5) (citing Viterbo, 826 F.2d at 422). III. D ISCU SSION 10 Here, plaintiffs do not challenge Dr. Hooper’s expert opinion in the classic sense that would require the Court to distinguish between speculative or unreliable scientific m ethodology and legitim ate expertise. Plaintiffs have not argued that Dr. Hooper is unqualified or that his m ethodology is unsound. Instead, plaintiffs argue that Dr. Hooper’ opinion testim ony is unhelpful, and therefore inadm issible, because Dr. Hooper has invaded the jury’s role by determ ining witness credibility and reaching legal conclusions. A. D r. H o o p e r D o e s N o t Pu rp o rt to Op in e o n W itn e s s Cre d ibility Plaintiffs first argue that Dr. Hooper’s expert testim ony is inadm issible because, according to plaintiffs, his deposition testim ony offers an “opinion” on witness credibility. To be adm issible, expert testim ony m ust “help the trier of fact to understand the evidence or determ ine a fact in issue.” Fed. R. Evid. 70 2. As a general rule, an expert m ay not opine on another witness’s credibility because this testim ony does not help the trier of fact, who can m ake its own credibility determ inations. See, e.g., United States v. Hill, 749 F.3d 1250 , 1260 (10 th Cir. 20 14) (collecting cases). The jury is “the final arbiter of the facts,” and thus testim ony about witness credibility or state of m ind is unnecessary and unhelpful. See United States v. Libby , 461 F. Supp. 2d 3, 7 (D.D.C. 20 0 6) 11 (citation om itted). Accordingly, courts often preclude experts from testifying that, in their expert opinion, a certain witness is or is not believable. See, e.g., Hill, 749 F.3d at 1263 (reversing for plain error when expert testified at trial about whether defendant was lying); N im ely v. City of N ew York, 414 F.3d 381, 398 (2d Cir. 20 0 5) (finding abuse of discretion when district court allowed a m edical expert to testify about how often he believed police officers lied); United States v. W ertis, 50 5 F.2d 683, 685 (5th Cir. 1974) (affirm ing district court’s exclusion of a psychiatrist offered to testify about a witness’s ability to “distinguish[] truth from non-truth”). Here, the Court has reviewed both Dr. Hooper’s expert report and his deposition testim ony. None of Dr. Hooper’s proffered opinions, as articulated in his expert report, am ounts to a credibility determ ination. According to his expert report, as well as his deposition testim ony, Dr. Higgins reviewed volum inous evidence to prepare his opinions, including m edical records; form s and policies and procedures from OPP; and the deposition transcripts of num erous witnesses, am ong other docum ents. Dr. Hooper also testified that he carefully reviewed all of the available evidence and that he equally considered each witness’s testim ony. The deposition responses that plaintiffs challenge reflect that Dr. Hooper m ay have resolved a disputed fact in favor of one party before reaching his 12 opinions. This does not render his testim ony inadm issible. While Daubert’s reliability analysis applies to “the facts underlying the expert’s opinion,” expert testim ony need only be based on “sufficient facts or data.” Fed. R. Evid. 70 2; Moore v. Int’l Paint, LLC, 547 F. App’x 513, 515 (5th Cir. 20 13). “When facts are in dispute, experts som etim es reach different conclusions based on com peting versions of the facts.” Fed. R. Evid. 70 2, Advisory Com m ittee Note; Moore, 547 F. App’x at 515. Indeed, as plaintiffs argue in support of their own expert,17 “experts m ay rely on one version of a disputed fact.” Arnold v. Canal Barge Co., Inc., No. 13-4966, 20 14 WL 2465313, at *2 (E.D. La. 20 14); accord Micro Chem ., Inc. v. Lextron, Inc., 317 F.3d 1387, 1392 (Fed. Cir. 20 0 3) (noting both sides presenting experts who based their opinions on the hiring party’s version of the disputed facts); W alker v. Gordon, 46 F. App’x 691, 69596 (3d Cir. 20 0 2) (“An expert is, nonetheless, perm itted to base his opinion on a particular version of disputed facts . . . .”); Little v. Nat’l R.R. Passenger Corp., 865 F.2d 1329, 1988 WL 1450 95, at *2 (D.C. Cir. 1988) (holding that an expert m ay assum e a disputed fact as true so long as “a factual predicate for the testim ony . . . exist[s]”). Questions related to the bases and sources of an expert’s opinion affect the weight accorded to that opinion, rather than its 17 R. Doc. 260 at 10 (Plaintiffs’ Mem orandum in Opposition to Defendants’ Motions to Exclude the Opinions of Dr. J effrey Metzner). 13 adm issibility. United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty ., Miss., 80 F.3d 10 74, 10 77 (5th Cir. 1996). “[T]he fact-finder is entitled to hear [an expert’s] testim ony and decide whether it should accept or reject that testim ony after considering all factors that weigh on credibility, including whether the predicate facts on which [the expert] relied are accurate.” Pipitone v. Biom atrix, Inc., 288 F.3d 239, 250 (5th Cir. 20 0 2).18 B. D r. H o o p e r’s Op in io n th a t D r. H iggin s W as N o t “D e libe rate ly In d iffe re n t” Is an In ad m is s ible Le gal Co n clu s io n Although an expert’s opinion m ay “em brace an ultim ate issue” to be decided by the trier of fact, expert witnesses are not perm itted to offer legal conclusions. See Fed. R. Evid. 70 4; Goodm an v. Harris Cty ., 571 F.3d 388, 399 (5th Cir. 20 0 9); C.P. Interests, Inc. v. California Pools, Inc., 238 F.3d 690 , 697 (5th Cir. 20 0 1). An expert who usurps either the role of the judge by instructing the jury on the applicable law or the role of the jury by applying the law to the facts at issue “by definition does not aid the jury in m aking a decision[.]” N im ely v. City of N ew York, 414 F.3d 381, 397 (2d Cir. 20 0 5) (citations om itted); see also Burkhardt v. W ash. Metro. Area Transit Auth., 18 Nonetheless, the Court will not allow questions regarding whether an expert believes certain witnesses to be “credible” or “truthful.” See Hill, 749 F.3d at 1256-63 (finding plain error when counsel questioned an expert regarding defendant’s truthfulness). 14 112 F.3d 120 7, 1212 (D.C. Cir. 1997) (“Expert testim ony that consists of legal conclusions cannot properly assist the trier of fact . . . .”). Rather, such an expert “undertakes to tell the jury what result to reach and thus attem pts to substitute the expert’s judgm ent for the jury’s . . . .” Nim ely , 414 F.3d at 397 (citation om itted). Accordingly, although “an expert m ay offer his opinion as to facts that, if found, would support a conclusion that the legal standard at issue was satisfied . . . he m ay not testify as to whether the legal standard has been satisfied.” Burkhardt, 112 F.3d at 1212-13. Here, Dr. Hooper offers as one of his expert opinions that “Dr. Higgins was not ‘deliberately indifferent’ to the plight of inm ates.” At his deposition, Dr. Hooper explained this opinion by defining “deliberate indifference,” analyzing Suprem e Court precedent, and com paring and contrasting Dr. Higgins’ conduct to hypothetical exam ples. “Deliberate indifference” is a legal term . See Stew art v. Murphy , 174 F.3d 530 , 541 n.9 (5th Cir. 1999). And “[i]t is the responsibility of the court, not testifying witnesses, to define legal term s.” Bradley v. City of Ferndale, 148 F. App’x 499, 50 8 (6th Cir. 20 0 5). Dr. Hooper’s opinion and testimony regarding “deliberate indifference” plainly constitutes a legal conclusion. It is therefore inadm issible. See, e.g., Cutlip v. City of Toledo, 488 F. App’x 10 7, 120 -21 (6th Cir. 20 12) (excluding an expert’s opinion regarding “conscious indifference”); Om ar v. Babcock, 177 F. 15 App’x 59, 63 n.5 (11th Cir. 20 0 6) (excluding portions of an affidavit in which an expert opinion as to whether appellants acted with “deliberate indifference”); W oods v. Lecureux, 110 F.3d 1215, 1219-21 (6th Cir. 1997) (excluding expert’s testim ony on “deliberate indifference”). To be clear, the Court excludes only Dr. Hooper’s opinion on whether Dr. Higgins was deliberately indifferent. As an expert in psychiatry with experience in correctional facilities, Dr. Hooper m ay testify at trial about the professional standard of care expected of a prison psychiatrist such as Dr. Higgins, and whether Dr. Higgins’s conduct conform ed to the applicable standard of care. Dr. Hooper m ay also testify about purported staffing inadequacies at OPP and whether Dr. Higgins responded reasonably to those deficiencies. But Dr. Hooper m ay not offer a conclusion as to whether Dr. Higgins’s conduct am ounted to “deliberate indifference.” 16 IV. CON CLU SION For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART plaintiffs’ m otion to exclude Dr. J am es F. Hooper. 10th New Orleans, Louisiana, this _ _ _ day of February, 20 16. ____________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 17
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