United States District Court, S.D. Georgia, Waycross Division
SREDRICK JONES, as the surviving spouse of Brandi Nicole Griffin Jones, Plaintiff,
WALLACE STEVE ANDERSON, D.O.; TAMMY NICHOLE BASS, LPN; SOUTH GEORGIA CORRECTIONAL MEDICINE, LLC; KIM PHILLIPS; and DOYLE WOOTEN, Defendants.
STAN BAKER UNITED STATES MAGISTRATE JUDGE
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
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
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
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.
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.
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.)
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
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.)
Mr. Berg's Expert Report
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
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
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
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
Defendants' Motion to Strike
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.)
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.
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.)
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.)
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.
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.)
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.
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.
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).
“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).
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.”
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).
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.
Whether Plaintiff Generally Satisfies his Burden as the
Proponent of Mr. Berg's
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.
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 ...