Nagle et al v. Gusman et al, No. 2:2012cv01910 - Document 287 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting in part and denying in part 234 Motion in Limine to exclude the testimony and expert report of Dr. Elizabeth Ford.. Signed by Judge Sarah S. Vance on 2/12/16. (jjs)
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Nagle et al v. Gusman et al Doc. 287 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 Defendant Dr. Charles “Mike” Higgins m oves the Court to exclude the testim ony and expert report of Dr. Elizabeth Ford under Federal Rule of Evidence 70 2. 1 Dr. Ford is the proposed psychiatric expert of plaintiffs Margaret Goetzee Nagle and J ohn Eric Goetzee. 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, his siblings, Margaret Goetzee Nagle and J ohn Eric Goetzee, filed this section 1 R. Doc. 234. Dockets.Justia.com 1983 civil rights and state-law suit against numerous em ployees of the Orleans Parish Sheriff’s Office. 2 Goetzee was a comm ander in the United States Coast Guard Reserve and a civilian em ployee of the Coast Guard. On the morning of August 2, 20 11, Goetzee approached a m arked Federal Protective Services vehicle occupied by a uniform ed law enforcement officer. Goetzee opened the front passenger door, entered the vehicle, and seated himself 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 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. Charles “Mike” Higgins to Goetzee’s behavior, and Dr. Higgins ordered that Goetzee be 2 R. Doc. 1. 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 newly-supplied inform ation. transported to University Hospital to “rule out delirium .”3 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 and placed on direct observation. 4 Dr. Higgins’s “direct observation” order required a Sheriff’s Office employee 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. 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 3 R. Doc. 266, Exhibit I (attached in opposition to Defendants’ Motions for Sum m ary J udgm ent). 4 Id. swallowed wads of toilet paper and asphyxiated him self while Thom pson was not m onitoring him . As a result of these events, Thompson pleaded guilty to the crime of m alfeasance in office. While under oath, and as part of his plea, Thompson accepted the state’s factual basis for the charge. The factual basis specified that Thom pson was assigned to continuously m onitor Goetzee; that Thom pson left his post three tim es for one and one-half hours, fifteen m inutes, and two hours, respectively; that another inm ate 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. The Court has already granted sum m ary judgment in favor of plaintiffs on their section 1983 and state-law claim s against Thompson. The Court has also granted sum mary judgm ent against Sheriff Gusm an on plaintiffs’ statelaw vicarious liability claim s and partial sum m ary judgm ent on plaintiffs’ section 1983 claim s. B. D r. Elizabe th Fo rd ’s Pro ffe re d Exp e rt Op in io n Plaintiffs enlisted Elizabeth Ford, M.D., as an expert witness to testify about Goetzee’s psychiatric condition. Dr. Ford is a board-certified psychiatrist, neurologist, and forensic psychiatrist. Dr. Ford currently serves as the Chief of Psychiatry for Correctional Health Services for New York City Health and Hospitals. Her areas of expertise include “the diagnosis and treatm ent of m ental illness in jails, research in correctional settings, violence and suicide risk assessments, and psychiatric education.”5 In addition, Dr. Ford has written and/ or contributed to a num ber of publications regarding psychiatry and the crim inal justice system . 6 Dr. Ford prepared a fifteen-page expert report regarding the “mental health issues and/ or psychiatric diagnoses” that Goetzee m ay have suffered from before or at the tim e of his death at OPP. In preparing her opinions, Dr. Ford interviewed Goetzee’s fam ily, friends, and co-workers and reviewed Goetzee’s medical records and jail records. 7 Dr. Ford divided her expert report into four sections: Goetzee’s fam ily, development, and employment history; Goetzee’s clinical history; the circum stances surrounding Goetzee’s August 2, 20 11 suicide attem pt; and Dr. Ford’s expert conclusions. 8 5 R. Doc. 234-2 at 17-18. 6 Id. at 19-20 . 7 R. Doc. 234-2, Exhibit A (Dr. Ford’s Expert Report). 8 See generally id. Defendant Dr. Higgins now moves to exclude Dr. Ford’s testim ony and expert report. 9 According to Dr. Higgins, Dr. Ford reaches factual conclusions that are unhelpful to the jury, presents evidence cum ulative of the facts presented in Geotzee’s medical records, and offers speculative opinions not supported by reliable evidence. 10 To support his argum ents, Dr. Higgins points to excerpts of the “Conclusion” section of Dr. Ford’s report that he considers “problem atic.” For exam ple, Dr. Higgins challenges the following sentences, am ong others, as factual conclusions that the jury can determ ine on its own without any specialized expertise: • Based on the available records . . . [Mr. Goetzee] did not suffer from a m ental illness until symptom s began to em erge in the spring of 20 11 in the context of significant and chronic sleep deprivation possibly exacerbated by the m otor vehicle accident . . . and brief treatm ent with steroid medications. 11 • The m ost obvious and realistic trigger to [Mr. Goetzee’s] psychosis was his consistent lack of sleep, initially the result of a chaotic work 9 R. Doc. 234. 10 See generally R. Doc. 234-1. 11 R. Doc. 234-2 at 12. schedule . . . but then later also a function of anxiety and insom nia that was m ost likely worsened by continuing sleep deprivation. 12 • Based on the available inform ation, I am not able to m ake a definitive DSM-V psychiatric diagnosis for Mr. Goetzee at the tim e of his death. 13 • The associated psychosis can be as severe as with schizophrenia, however unlike m any patients with schizophrenia, treatm ent of the underlying medical condition (e.g., resolution of the sleep debt) typically results in full resolution of the psychosis. 14 Dr. Higgins also challenges the following statements as cum ulative of Goetzee’s medical records, therefore rendering Dr. Ford’s expert opinion unnecessary and inadm issible: • While Mr. Goetzee likely m inim ized his sym ptoms to others, it does appear that he was less agitated and psychotic for at least several weeks following his discharge from the psychiatric hospitalization in J une. 15 12 Id. 13 Id. at 13. 14 Id. 15 Id. • The history m ost fits the diagnosis of Psychotic Disorder Due to Another Medical Condition, with delusions. In Mr. Goetzee’s case, sleep deprivation would be the m edical conditions involved. . . . Additional factors m ay exacerbate the sym ptoms such as treatm ent with steroids. 16 Finally, Dr. Higgins challenges Dr. Ford’s expert opinion as speculative and unreliable because, in her expert report, Dr. Ford uses terms such as “if,” “likely,” “unlikely,” and “m ight.” Som e of the “problem atic” statements include: • If Mr. Goetzee’s psychosis was a result of a chronic m ental illness, it is highly unlikely that such a short hospitalization and such a short time on m edication would have significantly im proved his sym ptom s. 17 • Also included on the diagnostic differential is Brief Psychotic Disorder with m arked stressors, however [sic] the diagnostic requirement that the episode duration be no longer than one m onth cannot be firm ly established in this case. 18 16 Id. 17 Id. (em phasis added). Here, the Court em phasizes the term s that Dr. Higgins challenges as speculative and therefore unreliable. 18 Id. at 13-14. • While Mr. Goetzee was significantly im paired at the tim e of his arrest on 0 8/ 0 2/ 11 – agitated, suicidal, violent, delusional to the point where he believed that his death was the only way to relieve his and others’ suffering – there were several m issed opportunities for psychiatric interventions following his arrest that w ould have had a m eaningful effect on his symptom s and w ould have m ost likely prevented his suicide. 19 • [Mr. Goetzee] could have continued his relationship with his fiancée and fam ily, and if retained in custody, worked closely with an attorney to m ount a defense. Given his psychosis and suicidal thinking related to the circum stances of his arrest, there is reason to think that his charges m ight have been reduced. 20 According to Dr. Higgins, because Dr. Ford’s expert opinion is peppered with the foregoing issues, her expert testim ony should be entirely excluded. The Court now analyzes whether Dr. Ford’s opinions are adm issible. 19 Id. at 14. 20 Id. 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 testim ony under Rule 70 2. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 13839 (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 determine 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 Supreme 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 testimony). 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 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 merely 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 Supreme Court has emphasized, 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 crossexam ination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means 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]undamentally 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 The Court begins by noting that Dr. Higgins does not challenge Dr. Ford’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. Dr. Higgins does not argue that Dr. Ford is unqualified or that her opinions rest on unsound m ethodology. Indeed, Dr. Ford’s education and experience in psychiatry and forensic psychiatry, especially her experience in corrections facilities, qualify her to offer expert testim ony in this case. But Dr. Higgins argues that portions of Dr. Ford’s opinions are instead factual conclusions that do not require specialized expertise; Dr. Ford’s opinions are cum ulative of Goetzee’s m edical records; and Dr. Ford’s opinions are speculative because she uses terms such as “if,” “likely,” and “m ight.” A. D r. Fo rd ’s Te s tim o n y Is Pro p e rly Gro u n d e d in H e r Sp e cialize d Exp e rtis e An d Is N o t Cu m u lative o f Go e tze e ’s Me d ical Re co rd s The Court has reviewed Dr. Ford’s expert report and deposition testim ony and finds Dr. Higgins’s argum ents for exclusion m eritless. First, Dr. Ford’s opinion does not m erely reflect factual conclusions unrelated to any medical or specialized expertise. Drawing on her psychiatric expertise and experience in correctional facilities, Dr. Ford has opined on, am ong other things, the likely cause or causes of Goetzee’s psychiatric state, the severity of Goetzee’s sym ptoms, and whether Goetzee could have been rehabilitated to norm al functioning. None of these opinions falls within the general understanding of the average juror. See, e.g., United States v. Ebron, 683 F.3d 10 5, 136-37 (5th Cir. 20 12) (“[T]he distinction between lay and expert witness testim ony is that lay testim ony results from a process of reasoning fam iliar in everyday life, while expert testim ony results from a process of reasoning which can be m astered only by specialists in the field.”). Many of the statem ents that Dr. Higgins challenges as “factual” depend on Dr. Ford’s expertise. 21 See, e.g., United States v. Dixon, 185 F.3d 393, 399 21 “[Mr. Goetzee] did not suffer from a mental illness until sym ptom s began to emerge in the spring of 20 11 in the context of significant and chronic sleep deprivation . . . .” Id. at 12. “The m ost obvious and realistic triffer to [Mr. Goetzee’s] psychosis was his consistent lack of sleep . . . but also a function of anxiety and insom nia that was m ost likely worsened by (5th Cir. 1999) (“An expert psychiatrist can assist a jury by giving an opinion in his area of expertise: whether a patient is suffering from a particular m ental disease.”). Because a jury could not evaluate this evidence using only their com m on knowledge and experience, Dr. Ford’s testim ony is sufficiently likely to assist the jury in understanding the scientific evidence relevant to Goetzee’s suicide to be adm issible. For the sam e reasons, the Court finds that Dr. Ford’s testim ony is not cum ulative of Goetzee’s medical records. The average juror does not have the specialized knowledge or experience necessary to understand or interpret a patient’s medical records. See, e.g., Greeno v. Daily , 414 F.3d 645, 658 (7th Cir. 20 0 5) (noting that understanding m edical records and patient treatm ent likely requires expert testim ony); Fow ler v. Carrollton Pub. Library , 799 F.2d 976, 982 (5th Cir. 1986) (holding that a district court erred in adm itting m edical records “with no accom panying expert explanation of their significance”). Her opinion is therefore adm issible. See Fed. R. Evid. 70 2. continuing sleep deprivation.” Id. “The associated psychosis can be as severe as with schizophrenia, however, unlike m any patients with schizophrenia, treatm ent of the underlying medical condition (e.g., resolution of the sleep debt) typically results in full resolution of the psychosis.” Id. at 13. To the extent that Dr. Ford m akes any factual statem ents in her report as she explains her expert opinion, this is not im perm issible. Expert testim ony m ust be based on sufficient facts or data to be reliable under the Federal Rules of Evidence and Daubert. See Fed. R. Evid. 70 2, 70 3; Moore v. Int’l Paint, LLC, 547 F. App’x 513, 515 (5th Cir. 20 13). So long as those facts are the type that other experts in the field would reasonably rely on, the expert’s opinion based on those facts is adm issible. See Factory Mut. Ins. Co. v. Alon USA LP, 70 5 F.3d 518, 523 (5th Cir. 20 13) (citing Fed. R. Evid. 70 3). And an expert m ay offer her opinion as to facts that, if found, would help the jury resolve a particular issue. See Burkhardt v. W ash. Metro. Area Transit Auth., 112 F.3d 120 7, 1212-13 (D.C. Cir. 1997). Dr. Ford has not included facts in the opinion section of her expert report to urge that those facts are necessarily true or correct. Rather, Dr. Ford references the relevant facts which underlie her psychiatric assessm ent of Goetzee’s m ental condition at the tim e of his suicide. Indeed, just as Dr. Higgins’s own expert delineates in his report the facts upon which his opinions depend, 22 Dr. Ford does so here as well. This argum ent is without m erit. 22 See generally R. Doc. 246-3 (Expert Report of J ames F. Hooper, M.D., DLFAPA). B. D r. Fo rd ’s Te s tim o n y Is N o t Sp e cu lative o r U n re liable Dr. Higgins also argues that Dr. Ford’s expert opinions are speculative and therefore unreliable. To support this argument, Dr. Higgins points to certain statem ents in which Dr. Ford does not opine that a particular fact or circum stance is absolutely true. Instead, Dr. Ford opines, am ong other things, that it is “highly unlikely” that Goetzee suffered from a chronic m ental illness; that Goetzee “m ost likely” suffered from Brief Psychotic Disorder, but that a necessary sym ptom “cannot be firm ly established in this case”; and that som e post-arrest psychiatric intervention “would have” meaningfully im proved Goetzee’s systems and “m ost likely” prevented his suicide. As a general rule, expert testim ony “must be grounded in the m ethods and procedures of science and m ust be m ore than unsupported speculation or subjective belief.” Curtis v. M&S Petroleum , Inc., 174 F.3d 661, 668 (5th Cir. 1999). However, “absolute certainty is not the goal of expert testim ony.” See Tang v. Thom as Trucking, LLC, No. 6:13-cv-40 7, 20 14 WL 6847652, at *2 (E.D. Tex. Dec. 2, 20 14) (citing Daubert v. Merrell Dow Pharm s., Inc., 50 9 U.S. 579, 589 (1993)). “It would be unreasonable to conclude that the subject of scientific testim ony m ust be ‘known’ to a certainty; arguably, there are no certainties in science.” Daubert, 50 9 U.S. at 590 . This is especially true “when experts attem pt to deduce explanations for earlier events based on their later observations,” as Dr. Ford does here. See Kirkland v. Marriott Int’l Inc., 416 F. Supp. 2d 480 , 485 (E.D. La. 20 0 6) (citing Jones v. Otis Elevator, 861 F.2d 655, 662 (11th Cir. 1988); Kahn v. United States, 795 F. Supp. 473, 475 (D.D.C. 1992)). Dr. Ford has drawn on her psychiatric expertise and experience to arrive at her conclusions about Goetzee’s mental diagnosis before his suicide. Based on the evidence she reviewed, Dr. Ford ruled out certain ailm ents to determ ine that “psychotic disorder due to another m edical condition, with delusions” and “brief psychotic disorder with m arked stressors” were the m ost likely causes of Goetzee’s m ental distress. Having reached an opinion on the m ost likely causes of Goetzee’s psychosis, Dr. Ford was then opined on whether his condition was treatable or perm anently debilitating. Dr. Ford’s opinion that it is “highly unlikely” that Goetzee suffered from a chronic m ental illness, that Goetzee’s sym ptoms “would alm ost certainly have” improved, and that psychiatric intervention “would have m ost likely” prevented his suicide reflect the requisite degree of m edical certainty and reliability to m ake her testim ony adm issible. Dr. Ford’s failure to use certain “m agic words,” such as “within a reasonable degree of m edical certainty,” is not fatal to her opinions. Estate of Sanders v. United States, 736 F.3d 430 , 437 (5th Cir. 20 13). Because “the im port of the expert’s testim ony is apparent . . . that is enough.” Id. C. D r. Fo rd May N o t Op in e On th e Me rits o f Go e tze e ’s Crim in al Pro s e cu tio n Dr. Ford includes in her expert report a brief discussion of Goetzee’s crim inal charges stem m ing from his conflict with the federal officer during his suicide attem pt on August 2, 20 11. Dr. Ford writes, “if retained in custody, [Goetzee could have] worked closely with an attorney to m ount a defense. Given his psychosis and suicidal thinking related to the circum stances of his arrest, there is reason to think that his charges m ight have been reduced.”23 At her deposition, Dr. Ford conceded that she cannot testify about the potential outcom e of Goetzee’s crim inal prosecution. 24 Dr. Ford has no basis for predicting how the crim inal charges against Goetzee would have been resolved. This testim ony is beyond the scope of Dr. Ford’s psychiatric expertise and therefore inadm issible. 23 R. Doc. 234-2 at 14. 24 R. Doc. 281-9 at 116. IV. CON CLU SION For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART defendant’s m otion to exclude Dr. Elizabeth Ford. 12th New Orleans, Louisiana, this _ _ _ day of February, 20 16. ____________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE
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