Estate of Gerardo Cruz-Sanchez v. United States of America

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF GERARDO CRUZ- Case No.: 17-cv-569-AJB-NLS SANCHEZ, by and through his successor- 12 in-interest Paula Garcia Rivera, et al., ORDER GRANTING IN PART AND 13 DENYING IN PART DEFENDANTS’ Plaintiffs, AMENDED MOTION TO EXCLUDE 14 v. EXPERT ROGER CLARK 15 THE UNITED STATES OF AMERICA, 16 et al., (Doc. No. 106) 17 Defendants. 18 19 Presently before the Court is Defendants’ amended motion to exclude expert Roger 20 Clark. (Doc. No. 106.) Plaintiffs filed a response to Defendants’ motion. (Doc. No. 111.) 21 On December 20, 2018, the Court held a hearing on the instant motion. Based on the 22 arguments presented in the briefing as well as at the hearing, the Court GRANTS in part 23 and DENIES in part Defendants’ amended motion to exclude expert Roger Clark. 24 BACKGROUND 25 The instant matter revolves around the arrest, incarceration and eventual death of 26 Gerardo Cruz-Sanchez. (See generally Doc. No. 83.) Mr. Cruz-Sanchez was incarcerated 27 at the Otay Mesa Detention Center (“OMDC”). (Id. ¶ 1.) CoreCivic contracts with the 28 United States to provide detention services at OMDC. (Doc. No. 107-1 at 6.) CoreCivic 1 provides support to facilitate the delivery of healthcare services. (Id. at 8.) 2 On February 11, 2016, Mr. Cruz-Sanchez had an intake assessment and reported no 3 medical problems. (Id. at 12.) On February 12, 2016, Mr. Cruz-Sanchez was seen regarding 4 pain in his upper eye lid. (Id.) On February 14, 2016, Mr. Cruz-Sanchez was seen by a 5 nurse regarding a headache, sore throat, cough and nasal congestion for two days. (Id.) On 6 February 16, 2016, Mr. Cruz-Sanchez saw another nurse complaining that he had a cough, 7 body aches, and sore throat for one week. (Id.) On February 17, 2016, Mr. Cruz-Sanchez 8 saw a physician’s assistant regarding the same symptoms. (Id.) On February 26, 2016, an 9 emergency call was made for Mr. Cruz-Sanchez. (Id. at 16.) Mr. Cruz-Sanchez was then 10 brought to the medical clinic and seen by a doctor. (Id.) The doctor then called 911 and 11 Mr. Cruz-Sanchez was transported to the hospital. (Id.) On February 29, 2016, Mr. Cruz- 12 Sanchez passed away from pneumonia. (Id. at 20.) 13 Currently, Defendants seek to exclude Plaintiffs’ expert witnesses, Roger Clark 14 (“Clark”). (Doc. No. 106.) Plaintiffs designated Clark to opine on four areas: (1) failure to 15 render aid; (2) improper cell checks; (3) failure to train and supervise correctional officers; 16 and (4) improper continued classification in general population. (Id. at 3.) 17 LEGAL STANDARD 18 Federal Rule of Evidence 702 governs the admissibility of expert testimony. 19 Pursuant to Rule 702, 20 [a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an 21 opinion or otherwise if: (a) the expert’s scientific, technical, or 22 other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the 23 testimony is based on sufficient facts or data; (c) the testimony is 24 the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the 25 case. 26 Id. “The party offering the expert bears the burden of establishing that Rule 702 is 27 satisfied.” Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. 02 CV 2258 JM 28 (AJB), 2007 WL 935703, at *4 (S.D. Cal. Mar. 7, 2007). 1 2 Prior to admitting expert testimony, the trial court must make “a preliminary 3 assessment of whether the reasoning or methodology underlying the testimony is 4 scientifically valid and of whether that reasoning or methodology properly can be applied 5 to the facts in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993). 6 The trial court acts as a “gatekeeper” by making a preliminary determination of whether 7 the expert’s proposed testimony is not only relevant but reliable. Estate of Barabin v. 8 AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014). This two-step assessment requires 9 consideration of whether (1) the reasoning or methodology underlying the testimony is 10 scientifically valid (the reliability prong); and (2) whether the reasoning or methodology 11 properly can be applied to the facts in issue (the relevance prong). Daubert, 509 U.S. at 12 592–93; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998). 13 A district court has broad latitude in deciding how to measure reliability and in 14 making the ultimate reliability determination. Kumho Tire Co. v. Carmichael, 526 U.S. 15 137, 142 (1999). In essence, the Court must determine whether the expert’s work product 16 amounts to “good science.” Daubert, 509 U.S. at 593. In Daubert, the Supreme Court 17 outlined factors relevant to the reliability prong, including (1) whether the theory can be 18 and has been tested; (2) whether it has been subjected to peer review; (3) the known or 19 potential rate of error; and (4) whether the theory or methodology employed is generally 20 accepted in the relevant scientific community. Id. at 593–94. As later confirmed in Kumho 21 Tire, “Daubert’s list of specific factors neither necessarily nor exclusively applies to all 22 experts or in every case. Rather, the law grants a district court the same broad latitude when 23 it decides how to determine reliability as it enjoys in respect to its ultimate reliability 24 determination.” 526 U.S. at 141–42. 25 Under the relevance or “fit” prong, the testimony must be “‘relevant to the task at 26 hand,’ i.e., that it logically advances a material aspect of the proposing party’s case.” 27 Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) (quoting 28 Daubert, 509 U.S. at 597). Relevance requires opinions that would assist the trier of fact 1 in reaching a conclusion necessary to the case. See Kennedy, 161 F.3d at 1230. In general, 2 the Daubert analysis focuses on the principles and methodology underlying an expert’s 3 testimony, not on the expert’s ultimate conclusions. Daubert, 509 U.S. at 595. However, 4 the Supreme Court has cautioned that “conclusions and methodology are not entirely 5 distinct from one another.” Gen. Elec. v. Joiner, 522 U.S. 136, 146 (1997). As such, “[a] 6 court may conclude that there is simply too great an analytical gap between the data and 7 the opinion proffered.” Id. 8 DISCUSSION 9 Defendants move to exclude Clark’s opinions on the basis that: “(1) his report 10 provides nothing more than a factual narrative; (2) he is not qualified to provide medical 11 opinions; (3) his opinions rely on speculation and are ipse dixit; (4) his opinions are not 12 reliable; (5) his opinions contain impermissible legal opinions and conclusions; and (6) his 13 opinions are not relevant or helpful to a jury.” (Doc. No. 106-1 at 5.) 14 A. Improper Factual Narrative 15 Defendants argue that Clark’s testimony simply rehashes otherwise admissible 16 evidence that can be presented through percipient witnesses and documentary evidence. 17 (Doc. No. 106-1 at 6–7.) Specifically, Defendants point to the fact that Clark’s report 18 contains an overview for seven pages of a fifteen-page report. (Id.) Defendants rely upon 19 a case previously decided by this Court to establish that an expert report may be excluded 20 on the basis that the report offers nothing more than factual narrative of these documents. 21 (Doc. No. 106-1 at 7 (citing Johns v. Bayer Corp., 2013 WL 1498965, at *28 (S.D. Cal. 22 Apr. 10, 2013)).) 23 Unlike the expert report in Johns, where the report was merely facts, Clark offers 24 opinions as well as facts in his report. While, Clark does provide a background section of 25 his report, he also provides opinions regarding Defendants’ alleged actions in this case. 26 (Doc. No. 109 at 4.) Clark is not simply rehashing otherwise admissible evidence. 27 Accordingly, Clark’s opinion is not an improper factual narrative. 28 / / / 1 B. Opinion Regarding the Failure to Render Aid 2 Defendants argue that Clark’s opinions regarding failure to render aid are legal 3 conclusions. (Doc. No. 106-1 at 7.) “It is well-established . . . that expert testimony 4 concerning an ultimate issue is not per se improper.” Mukhtar v. Cal. State Univ., Hayward, 5 299 F.3d 1053, 1066 n. 10 (9th Cir. 2002). However, “an expert witness cannot give an 6 opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” Id. Here, 7 Clark’s testimony is that the information suggests that there was a failure to render aid, this 8 is not direct testimony that Clark has reached a legal conclusion that there is actually failure 9 to render aid. See Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1016–17 10 (9th Cir. 2004) (“While Caliri’s testimony that Defendants deviated from industry 11 standards supported a finding that they acted in bad faith, Caliri never testified that he had 12 reached a legal conclusion that Defendants actually acted in bad faith (i.e., an ultimate issue 13 of law).”) The Court does not find that any of Clark’s statements at issue in the briefing 14 regarding failure to render aid are legal conclusions, except for the statement regarding 15 coercive treatment that is explained in further detail below. 16 Clark must refrain from advocating for Plaintiffs. “Rule 706 does not contemplate 17 that expert witnesses be appointed to serve as an advocate for a party.” Aguilar v. Bates, 18 No. 15-cv-2446-MMA-AGS, 2018 WL 4896024, at *2 (S.D. Cal. Oct. 9, 2018). 19 Accordingly, Clark’s language stating a “grievous failure,” “serious departure,” and 20 “serious breach” are advocating for Plaintiff. (Doc. No. 106-2 at 10–11.) Therefore, Clark 21 may opine that the facts support a finding that there was a failure to render necessary aid 22 and a finding that there was a departure from the industry standards. However, Clark must 23 refrain from language that will be deemed advocating for Plaintiffs. 24 Further, Defendants argue that Clark’s opinions improperly vouch for Mr. Chavez’s 25 credibility. The jury must decide credibility, not an expert witness. Godinez v. Huerta, No. 26 16-cv-0236-BAS-NLS, 2018 WL 2018048, at *6 (S.D. Cal. May 1, 2018). Experts “are 27 not permitted to testify . . . in such a manner as to improperly buttress a witness’ 28 credibility.” Id. Specifically, Clark opines: 1 A(wchciocrhd iwnags tcoo rtrhoeb odraetpeods bityio hni s tceostnitmemonpyo roanf eAoulesj raencdorrod eCd hcaavllesz) 2 CoreCivic staff not only failed to respond to specific requests for 3 medical care, but actively dissuaded it.

4 If one believes that Mr. Cruz-Sanchez stopped seeking medical 5 care at some point during his incarceration that would have been 6 an expected result of this coercive treatment by CoreCivic staff, and a violation of correctional standards in its own right. 7 8 (Doc. No. 106-2 at 11.) Clark should refrain from opining that Mr. Chavez’s testimony was 9 corroborated by his contemporaneous recorded calls. Determining credibility is a task 10 suited for the jury. See Godinez, 2018 WL 2018048, at *6. 11 Defendants assert that the above statement regarding Mr. Cruz-Sanchez no longer 12 seeking medical care should be excluded because it is sheer speculation and ipse dixit. 13 (Doc. No. 106-1 at 10.) Clark’s opinion here is not based on sheer speculation, but rather, 14 is based on the facts that Clark was provided as well as his experience. See Kumho Tire 15 Co., Ltd., 526 U.S. at 156. 16 However, the above statement is a legal conclusion. Defendants argue that Clark’s 17 statement that this treatment is a “violation of correctional standards in its own right” is a 18 legal conclusion. (Doc. No. 106-1 at 10.) The Court agrees with Defendants that Clark’s 19 entire statement regarding Mr. Cruz-Sanchez no longer seeking medical care is a legal 20 conclusion. This statement is precluded in verbatim. However, as explained by the Court 21 at the hearing, a Daubert hearing may be appropriate to establish foundation for his 22 opinion. 23 C. Opinion Regarding Cell Checks 24 Clark offers several opinions regarding improper cell checks. Defendants argue that 25 several of his opinions are impermissible and should be excluded. First, Defendants argue 26 that Clark’s opinion that, “[a]nother well-recognized duty of correctional staff is to perform 27 regular checks of inmate housing units and to watch for signs of medical distress. This duty 28 1 exists whether or not an inmate affirmatively articulates a medical issue,” (Doc. No. 106- 2 2 at 11), is an impermissible legal conclusion. (Doc. No. 106-1 at 11.) However, simply 3 stating the industry standard is not a legal conclusion. 4 Next, Defendants assert that Clark’s opinion that “[e]very reasonable officer knows 5 and common-sense dictates that if an inmate is unable to eat or speak, cannot get out of 6 bed, or is having difficulty breathing, medical care should be sought without delay,” (Doc. 7 No. 106-2 at 11), is impermissible because it is a matter of common sense. (Doc. No. 106- 8 1 at 12.) The Court agrees that this is purely common sense and thus, is not helpful to the 9 jury. Accordingly, this statement is impermissible opinion testimony. 10 Defendants further assert that Clark’s opinions regarding the California Peace 11 Officer Standards in Training and CoreCivic’s Code of Ethics are improper since the jury 12 can simply read these standards and determine whether or not Defendants have complied 13 with these standards. (Doc. No. 106-1 at 12–13.) However, Clark is permitted to testify 14 whether Defendants’ conduct comported with the applicable standards. See Godinez, 2018 15 WL 2018048, at *6; Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. 2005); Cooke v. 16 City of Stockton, No. 14-cv-908-KJM-KJN, 2017 WL 6447999, at *5 (E.D. Cal. Dec. 18, 17 2017); Molina v. City of Visalia, No. 13-cv-1991-DAD-SAB, 2016 WL 8730723, at *6 18 (E.D. Cal. Sep. 16, 2016). 19 Clark further offers an opinion that: “it appears that CoreCivic’s deficient staffing 20 patterns may have contributed to the inadequate supervision of Mr. Cruz-Sanchez and 21 others.” (Doc. No. 106-2 at 12.) Defendants assert that there are three reasons why this 22 opinion is impermissible: it is purely speculative, Clark is not qualified to offer an opinion 23 on this matter, and this statement does not assist the trier of fact to understand the evidence 24 or determine a fact at issue. (Doc. No. 106-1 at 13.) First, Clark is qualified to opine 25 regarding staffing patterns. Clark has had experience in the administration of a custodial 26 facility. Second, Clark’s opinion is not purely speculative. Clark relied upon CoreCivic’s 27 documents and testimony of a former CoreCivic employee to establish his opinion. 28 However, the Court finds that this testimony is lacking in relevance. Plaintiffs did not 1 allege an understaffing claim in their third amended complaint. Here, the unfair prejudice 2 of allowing this evidence in at trial would outweigh the probative value. At the hearing, 3 Plaintiffs argued that this testimony would be presented as evidence of negligence and that 4 Clark has the foundation for this opinion. However, this was not laid out in the report. 5 Accordingly, the Court finds this opinion impermissible. 6 D. Opinion Regarding Failure to Train and Supervise Correctional Officers 7 Defendants assert that the following opinions regarding the failure to train and 8 supervise correctional officers are unsupported legal conclusions: 9 This case also demonstrates a serious lack of proper training of correctional officers. 10 11 And even when records reflected that [Defendant Landin] received some training, it was woefully deficient. 12 13 Thus, the evidence strongly suggests that insufficient training contributed to Mr. Cruz-Sanchez’s death. 14 15 Any reasonably trained officer would have recognized that Mr. Cruz-Sanchez was in medical distress, and that needed help. 16 17 CoreCivic apparently did not provide adequate training, with tragic results. 18 19 (Doc. No. 106-2 at 13–15.) First, as explained above, Clark must refrain from advocating 20 for the Plaintiffs. See Aguilar, 2018 WL 4896024, at *2. These statements resemble 21 arguments that an advocate would make. These statements as they are currently drafted 22 cross the threshold into advocacy, and therefore would be inadmissible. However, Clark 23 may testify as to the industry standards and whether Defendants have complied with the 24 standards. 25 E. Opinion Regarding Improper Continued Classification in General Population 26 Defendants assert that Clark improperly opines that Cruz-Sanchez should not have 27 remained in general population due to his worsening condition. (Doc. No. 106-1 at 15.) 28 Specifically, Clark opines that “Mr. Cruz-Sanchez should have been transferred to a 1 housing assignment where he could have been more closely monitor by medical staff. The 2 || failure to do so led directly to his death.” (Doc. No. 106-2 at 15.) The Court agrees that 3 Clark is not qualified to give medical testimony. See Valtierra v. City of Los Angeles, 99 4 ||F. Supp. 3d 1190, 1196 (C.D. Cal. 2015); Rascon v. Brookings, No. CV-14-749-PHX-JJT, 5 WL 2880442, at *3 (D. Ariz. Feb. 7, 2018); Wisler v. City of Fresno, No. CV F 06- 6 || 1694 AWI SMS, 2008 WL 2880442, at *3 (E.D. Cal. July 22, 2008); Ayala v. City of South 7 || San Francisco, No. C 06-02061 WHA, 2007 WL 2070236, at *6 (N.D. Cal. July 13, 2007). 8 || Therefore, Clark is not permitted to testify that the failure to transfer directly led to Mr. 9 || Cruz-Sanchez’s death. However, Clark may testify as to inmate-housing practices. 10 CONCLUSION 11 Based on the foregoing, the Court GRANTS in part and DENIES in part 12 || Defendants’ amended motion to exclude Roger Clark. 13 14 || IT IS SO ORDERED. 13 Dated: September 17, 2019 | □□ iz : LE 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28