Jones v. Anderson

          ORDER

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Presently before the Court is Defendants Doyle Wooten and Kim Phillips' (“Defendants”) Motion to Strike the Opinions and Preclude the Testimony of Plaintiff's Expert, Michael A. Berg. (Doc. 69.) Plaintiff filed a Response, (doc. 71), Defendants filed a Reply, (doc. 78), and Plaintiff filed a Surreply, (doc. 85). For the reasons and in the manner set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion.

         Mr. Berg's Expert Report exemplifies the principle that a witness may be a well-qualified expert but still not provide reliable expert testimony. As explained below, Plaintiff has failed to meet his burden to lay the foundation for the admission of the overwhelming majority of Mr. Berg's opinions. Plaintiff has failed to clarify what opinions Mr. Berg intends to offer, much less establish that the opinions fall within Mr. Berg's area of expertise, are the product of reliable principles and methods, are based in reliable facts or data, and will assist the jury at the trial of this case.

         Despite these general deficiencies, Mr. Berg will be permitted to provide limited testimony regarding detainee classification. He may opine that “acceptable correctional classification systems incorporate all known facts regarding a detainee such as medical, criminal and behavioral (past and present), to formulate the most applicable housing plan possible to ensure the safety of the inmate and all others concerned.” (Doc. 71-1, p. 29.) Mr. Berg may also opine that:

Classification must be the center point of all inmate activities and status decisions. Trained classification personnel ensure that all pertinent information is consolidated into a totally encompassing custody plan. This information is acquired from intake information, medical screening, criminal and medical histories and security/observation needs required. As new information is accumulated and received pertaining to an inmate, it must be proved to the Classification Unit prior to anything happening with the inmate involved.

(Id. at p. 38.) Further, Mr. Berg may testify that “no classification process was ever incorporated in the Griffin Jones incarceration plan.” (Id. at p. 29.) For the reasons explained below, Mr.

         Berg's testimony will be strictly limited to these opinions alone, and the Court strikes the remainder of his opinions. Plaintiff will not be permitted to introduce or otherwise rely upon any other opinions from Mr. Berg.

         BACKGROUND

         I. Plaintiff's Complaint

         This case arises from Mrs. Brandi Jones' detention at the Coffee County Jail from July 8 through July 11, 2015, as an Atkinson County pre-trial detainee. Defendant Wooten is the Sheriff of Coffee County, and Defendant Phillips is the Jail Administrator for Coffee County. Plaintiff asserts Mrs. Jones suffered from mental health issues and that she was under the care of a physician who prescribed her several medications prior to her detention. (Doc. 11, pp. 8-9.) According to Plaintiff, Mrs. Jones did not receive any of her medications while she was housed at the Coffee County Jail. (Id. at p. 12.) As a result, Plaintiff maintains Mrs. Jones began exhibiting “obvious manifestations of withdrawal from her prescription medications[, ]” yet staff at the Coffee County Jail failed to address her symptoms. (Id.) Mrs. Jones began having “seizure-like activity in her cell and lost consciousness[]” on July 11, 2015, and she was taken to Coffee Regional Medical Center. (Id.) Mrs. Jones was pronounced dead on July 15, 2015. (Id. at p. 13.)

         Plaintiff Sredrick Jones, the surviving spouse of Mrs. Jones, originally filed a cause of action in the Coffee County State Court, claiming that Defendants caused or contributed to his wife's death. (Doc. 1-2.) Defendants filed a Notice of Removal on June 1, 2017. (Doc. 1.) Though Plaintiff originally named the Coffee County Sheriff's Office as a Defendant, the Sheriff's Office moved for dismissal of all claims against it; Plaintiff did not oppose that Motion. (Docs. 25, 29.) The Court granted that Motion, holding that the Sheriff's Office is not a legal entity subject to suit.^[1]

         Plaintiff filed an Amended Complaint on June 7, 2017. (Doc. 11.) On August 8, 2017, the Court issued a Scheduling Order that limited the first phase of discovery to “to those issues necessary to address the Coffee County Defendants' defense of qualified immunity.” (Doc. 34, p. 2.) Among other things, the Scheduling Order required Plaintiff to serve all expert witness reports regarding the first phase of discovery by September 8, 2017, and Defendants to serve all expert reports for the first phase by October 9, 2017. (Id. at p. 3.) The parties were to complete all expert depositions regarding the first phase of discovery by December 15, 2017. (Id.)

         II. Mr. Berg's Expert Report

         On September 4, 2017, Mr. Berg penned a report entitled “Preliminary Expert Report of Michael A. Berg.” (Doc. 71-1, pp. 14-62.) In his Report, Mr. Berg states that he is “an independent consultant in the field of corrections with over forty-four years of experience in criminal justice management, primarily in the area of corrections.” (Id. at p. 14.) He details his 25-year work history with the Office of the Sheriff, Jacksonville, Florida, his over 12-year career with the Florida Department of Corrections, and his past work as an expert witness. (Id. at pp. 14-15.) Mr. Berg's more than forty-four (44) years' experience primarily relates to the field of corrections and includes “direct experience with management and security.” (Id. at p. 14.) Mr. Berg has experience with administrative and operational management of jails and prisons of all sizes, including correctional and police-related administrative issues from a person's arrest to his or her release. (Id. at p. 15.) Mr. Berg's experience also includes correctional operational policy and procedure development. Additionally, Mr. Berg has been qualified as an expert witness in the corrections field on nearly forty (40) occasions and has provided testimony relating to this field, particularly as to wrongful death, classification, housing conditions, and private-for-profit contracts for medical and mental health services. (Id. & at pp. 56-61.) In his Report, Mr. Berg also provides a list of materials that he reviewed in formulating his opinions in this case, but he does not provide any description of those materials. (Id. at pp. 16-27.)

         Mr. Berg's Report next includes a Section entitled “Opinion” in which he offers broad and sweeping accusations against the Coffee County Sheriff's Office and South Georgia Correctional Medicine. (Id. at pp. 27-41.) Mr. Berg does not offer his conclusions in any organized format, and it is difficult to follow what opinions he intends to offer. However, the Court has endeavored to decipher his Report, and it appears he offers accusations in five areas.

         First, Mr. Berg repeatedly opines that Mrs. Jones' death was caused by various acts or omissions by the Coffee County Sheriff's Office and South Georgia Correctional Medicine caused. Second, Mr. Berg frequently offers legal conclusions, including statements that the Coffee County Sheriff's Office and South Georgia Correctional Medicine violated constitutional obligations owed to Mrs. Jones. Third, Mr. Berg opines at various points that aspects of the care and supervision provided to Mrs. Jones (or alleged lack thereof) violated unwritten standards of the corrections industry. Fourth, Mr. Berg opines that the Coffee County Sheriff's Office and South Georgia Correctional Medicine violated a number of written industry standards in the classification, housing, and medical care provided to Mrs. Jones. Fifth, Mr. Berg faults unnamed members of the administration of the Sheriff's Office and South Georgia Correctional Medicine for failures in supervision, training, and policy implementation.

         As noted above, Mr. Berg labels his Report a “Preliminary Report.” (Id. at p. 14.) He states:

Due to it being early in the discovery phase of the plaintiff's case regarding the Brandi Nicole Griffin Jones matter, I am certain that the negligence and deliberate indifference reported here will become even more apparent as additional material is produced. In that factual material is limited at this time, it is hoped that additional material will be produced in the near future.

(Id. at p. 29.) He repeatedly notes that he had not received, much less reviewed, any policies or procedures from the Sheriff's Office or South Georgia Correctional Medicine. (Id. at p. 36 (“[T]o date, no Coffee County or South Georgia Correctional Medicine Policy and Procedures have been received through discovery . . . .”); (Id. at p. 38 (“As a note-it must be stated again that neither Coffee County Sheriff's Office nor South Georgia Correctional Medicine has produced any policies and procedures regarding their operations.”); (Id. at p. 40 (“Clear and concise policy and procedures, although not provided by either the County or the health care provider . . . .”). Mr. Berg also states he had not received or reviewed any “cell observation logs pertaining to the incarceration of Ms. Griffin Jones.” (Id. at p. 36.)

         III. Defendants' Motion to Strike

         On February 1, 2018, Defendants filed their Motion to Strike Mr. Berg's opinions and preclude him from testifying in this action. (Doc. 69.) Defendants request that the Court exclude Mr. Berg's testimony and opinions in their entirety. (Id.) Defendants argue that Mr. Berg fails to explain how his experience as a correctional officer and administrator informed his opinions. (Id. at p. 7.) They also argue that Mr. Berg lacks the qualifications to provide the medical opinions included in his Report. (Id. at p. 8 (“Berg is simply not qualified to discuss Mrs. Jones' alleged medical diagnoses, nor do his qualifications provide a basis for him to opine on the screening documents or processes used by Southern Correctional Medicine in determining Mrs. Jones' medical needs.”).) Additionally, Defendants argue that Mr. Berg bases his opinions on the premise that Mrs. Jones was being treated for “‘drug dependence withdrawal, psychiatric disorder/s and manic depression'”, and there is no support in the record for this premise. (Id. (quoting Berg Report).) Defendants contend both of these alleged flaws (Mr. Berg's lack of medical qualifications and his faulty premise) combine to plague his opinion that Mrs. Jones' medical conditions “‘would call for special correctional housing that required constant or very frequent medical and/or security observation.'” (Id. (quoting Berg Report).) Additionally, Defendants argue that Mr. Berg has no qualification or basis for opining that Mrs. Jones' death resulted from the lack of special housing and medical or security observation. (Id. at p. 9.)

         Defendants next attack the reliability of Mr. Berg's methodology. (Id. at pp. 9-12.) They maintain that an expert cannot testify as to whether a particular defendant was deliberately indifferent and that the underlying unreliability of Mr. Berg's methodology makes his deliberate indifference testimony particularly troubling. (Id. at pp. 9-10.) Further, Defendants contend that, while Mr. Berg describes the Jail's policies, training, and supervision as deficient, he does not identify these deficiencies with any specificity. (Id. at p. 10.) Defendants also argue Mr. Berg's opinions that the Coffee County Sheriff and South Georgia Correctional Medicine violated certain policies and procedures should be stricken as unreliable, because he simply cites to the tables of contents of the policies without explaining how he applied the policies to the facts of this case. (Id. at pp. 10-11.) Additionally, Defendants argue Mr. Berg's opinions are not grounded in any accepted premise but rather in ipse dixit reasoning. (Id. at pp. 11-12.)

         Further, Defendants contend that Berg's opinions are not helpful to the jury, as they are akin to a lawyer's closing arguments and convey matters within the understanding of the average lay person. (Id. at pp. 12-13.) Finally, they maintain that Mr. Berg's numerous opinions regarding the applicable legal standards would not only be unhelpful to the jury but could also mislead and confuse the jury. (Id. at pp. 13-14.)

         On February 14, 2018, Plaintiff filed his Response in opposition to the Defendants' Motion to Strike. (Doc. 71.) Plaintiff argues that Mr. Berg is “imminently [sic] qualified” to testify competently in the field of corrections due to his “lengthy twenty-five-year (25) career as a corrections officer for the Office of Sheriff, Jacksonville, Florida, after which he served the Florida Department of Corrections as senior adviser overseeing all department education and training as well as all curriculum and policy development and implementation.” (Id. at p. 4.) In response to Defendants' contention that Mr. Berg's methodology is unreliable, Plaintiff asserts that Mr. Berg “conducted an extensive review of the records in this matter, including but not limited to reports, policies and procedures, and applicable case specific standards, and then formulated his opinions contained in his report based on his knowledge, training and experience.” (Id. at p. 5.) Plaintiff avers that Mr. Berg is not offering opinions as a medical expert but rather as an expert in the “applicable state and national standards imposed on correctional facilities.” (Id. at p. 6.) Lastly, Plaintiff maintains that Mr. Berg's testimony will assist the jury “in interpreting the significance of the evidence and the systems, policies, and training at the Coffee County Jail.” (Id. at p. 7.)

         Defendants filed a Reply to Plaintiff's Response on February 28, 2018. (Doc. 78.) Therein, Defendants argue that Plaintiff, as the proponent of Mr. Berg's testimony, has failed to address the deficiencies noted in their Motion to Strike. (Id.) Generally, they contend Plaintiff's sole focus on Mr. Berg's experience fails to explain how he applied that experience to the facts of this case. (Id.)

         Plaintiff then filed a Surreply to Defendant's Reply on March 12, 2018. (Doc. 85.) Therein, Plaintiff stipulates that Mr. Berg “will not render opinions or give testimony as to medical issues that require specialized medical knowledge and expertise. Nor will Mr. Berg render opinions or give testimony regarding legal implications of conduct such as ‘that Defendants were deliberately indifferent.'” (Id. at p. 3.) However, Plaintiff opposes Defendants' contentions that Mr. Berg's Report lacks analysis, that his opinions are deficient because he did not review the Coffee County Jail policies and procedures, and that his opinions lack reliability. (Id. at pp. 3-4.)

         STANDARD OF REVIEW

         In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court interpreted Federal Rule of Evidence 702 (“Rule 702”), which governs expert testimony. The Supreme Court stated that Rule 702 “compels the district courts to perform the critical ‘gatekeeping' function concerning the admissibility of expert scientific evidence.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (emphasis in original) (citing Daubert, 509 U.S. at 589 n.7, 597). The Supreme Court later held that “Daubert's general holding-setting forth the trial judge's general ‘gatekeeping' obligation-applies not only to testimony based on ‘scientific' knowledge, but also to testimony based on ‘technical' and ‘other specialized' knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (citing Fed.R.Evid. 702). Having adopted these decisions, amended Rule 702 provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

         The Court of Appeals for the Eleventh Circuit has set forth a rigorous three-prong inquiry encompassing the requirements of Daubert and its progeny and Rule 702. Under the three-prong inquiry, a court determining the admissibility of expert testimony must consider whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Frazier, 387 F.3d at 1260 (citations omitted). The proponent of an expert opinion bears the burden of establishing qualification, reliability, and helpfulness by a preponderance of the evidence. Daubert, 509 U.S. at 592, n.10; see also Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, 402 F.3d 1092, 1107 (11th Cir. 2005) (“‘The burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence.'”) (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999)). The ultimate objective of a court's Daubert gatekeeping function is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152.

         To satisfy the qualification prong, experts must have “specialized knowledge” regarding their proposed area of testimony. Fed.R.Evid. 702(a). However, an expert need not have formal education in order to testify. Rather, “experts may be qualified in various ways. While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status.” Frazier, 387 F.3d at 1260-61; see also Fed.R.Evid. 702 (A witness may be qualified as an expert by “knowledge, skill, experience, training, or education[.]”). When assessing qualification, a court must determine “whether the subject matter of the witness's proposed testimony is sufficiently within the expert's expertise.” In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 711 F.Supp.2d 1348, 1367 (M.D. Ga. 2010) (internal citation omitted).

         However, “the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express.” Frazier, 387 F.3d at 1261 (emphasis in original). Put another way, “one may be considered an expert but still offer unreliable testimony.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1342 (11th Cir. 2003) (internal citations omitted). Moreover, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

         Consequently, the reliability “criterion remains a discrete, independent, and important requirement for admissibility.” Frazier, 387 F.3d at 1261. Under Federal Rule of Evidence 702, the proponent of the expert testimony must establish that “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Moreover, the facts or data underlying the expert's opinion must be “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Fed.R.Evid. 703.

         In Daubert, the Supreme Court “set out a list of ‘general observations' for determining whether expert testimony is sufficiently reliable to be admitted under Rule 702.” United States v. Brown, 415 F.3d 1257, 1267 (11th Cir. 2005) (citation omitted). These factors or observations inquire into the expert's “theory or technique” and are: “(1) whether it can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) what its known or potential rate of error is, and whether standards controlling its operation exist; and (4) whether it is generally accepted in the field.” Id. (citation omitted). “Sometimes the specific Daubert factors will aid in determining reliability; sometimes other questions may be more useful.” Frazier, 387 F.3d at 1262. Particularly in cases of non-scientific experts, “the relevant reliability concerns may focus upon personal knowledge or experience.” Kumho Tire, 526 U.S. at 150. “Indeed, the Committee Note to the 2000 Amendments of Rule 702 expressly says that, ‘[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.'” Frazier, 387 F.3d at 1261 (emphasis in original) (quoting Fed.R.Civ.P. 702 Advisory Committee's Note to 2000 Amendments).

         Lastly, expert opinion testimony must assist the trier of fact. Id. “By this requirement, expert testimony is admissible if it concerns matters that are beyond the understanding of the average lay person.” Id. (citation omitted). Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments. Estate of Tessier, 402 F.3d at 1111.

         DISCUSSION

         I. Whether Plaintiff Generally Satisfies his Burden as the Proponent of Mr. Berg's Opinions

         As the proponent of Mr. Berg's opinions, Plaintiff shoulders the burden of satisfying all prerequisites of admissibility as to each of those opinions. Daubert, 509 U.S. at 592, n.10; Estate of Tessier, 402 F.3d at 1107. Plaintiff must make those showings “by a preponderance of the evidence.” Allison, 184 F.3d at 1306 (internal citation omitted). “Where the burden has not been satisfied, [Rule 702] precludes expert testimony.” Siharath v. Sandoz Pharm. Corp., 131 F.Supp.2d 1347, 1351 (N.D.Ga. 2001), aff'd sub nom., Rider v. Sandoz Pharm. Corp., 295 F.3d 1194 (11th Cir. 2002). This burden cannot be satisfied by conclusory arguments and should not be taken lightly.

         In Section II below, the Court delves into each of Mr. Berg's areas of opinion (at least as best the Court can discern them) and assesses whether Plaintiff has laid the requisite foundation to introduce those opinions specifically. However, at the outset, the Courts holds that, despite filing two briefs in opposition to Defendants' Motion, Plaintiff generally fails to carry his ...