Shipp v. Hoffman

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

CRAIG SHIPP PLAINTIFF

v. Case No. 4:18-cv-4017

STEVEN ARNOLD; DR.

MIMO LEMDJA; LENORA

TURNER; KINDALL SMITH;

and CORRECT CARE SOLUTIONS, LLC DEFENDANTS

ORDER

Before the Court is an Expedited Motion to Exclude Expert filed by Separate Defendants

Dr. Mimo Lemdja; Lenora Turner; Kindall Smith; and Correct Care Solutions, LLC (the “Medical

Defendants”). (ECF No. 89). Separate Defendant Steven Arnold has filed a response in support

of the motion. (ECF No. 90). Plaintiff Craig Shipp has filed a response in opposition to the motion.

(ECF No. 91). The Medical Defendants have filed a reply. (ECF No. 93). The Court finds the

matter ripe for consideration.

I. BACKGROUND

On March 26, 2018, Plaintiff, filed an amended complaint in this action pursuant to 42

U.S.C. § 1983, alleging that Defendants violated his constitutional rights when he was incarcerated

in the Southwest Arkansas Community Correction Center in Texarkana, Arkansas. Plaintiff, a

diabetic, alleges that Defendants deprived him of his orthotic shoes and inserts for several weeks,

which caused injury that ultimately required the amputation of his foot. Plaintiff asserts a federal

claim of Eighth Amendment deliberate indifference and a state-law claim of negligence.

Plaintiff initially retained Dr. Joseph William Wright as his “jail and medical” expert.

(ECF No. 80). Dr. Wright was a licensed physician, board certified in otolaryngology,1 who spent

eleven years practicing in the field of correctional medicine, serving as the medical director of the

El Paso County Criminal Justice Center in Colorado Springs, Colorado. (ECF No. 89-1, p. 2). On

June 7, 2019, the parties deposed Dr. Wright. On July 25, 2019, Plaintiff learned that Dr. Wright

passed away.

On August 1, 2019, Plaintiff filed a motion seeking leave to designate and substitute one

or more expert witnesses to replace Dr. Wright. The Court granted that motion with the caveat

that any new expert must hold substantively similar opinions that are not contrary to or inconsistent

with Dr. Wright’s opinions. (ECF No. 86, p. 5). The Court stated that Defendants could file a

motion to exclude any portion of the replacement expert’s testimony that concerned new opinions,

theories, or subject matter.

On October 3, 2019, the Medical Defendants filed the instant motion, indicating that

Plaintiff retained a nursing expert, Lori Roscoe. Roscoe’s expert report reveals that she is an

Advanced Practice Registered Nurse and is a Certified Healthcare Professional—Registered

Nurse. She has worked in various roles in correctional healthcare since 1995 and is currently the

principal of Correctional HealthCare Consultants LLC.

The Medical Defendants state that a review of Roscoe’s expert report reveals multiple

opinions that are either inconsistent with those of Dr. Wright’s or concern subject matters that she

is not qualified to opine on. Accordingly, they ask the Court to prohibit Roscoe from offering

these opinions, effectively excluding her entirely as an expert. Separate Defendant Arnold joins

in the motion, arguing for the same relief. Plaintiff opposes the motion.2

1 Otolaryngology is a medical sub-specialty dealing with conditions of the ear, nose, and throat, and related structures

of the head and neck.

2 The Medical Defendants argue in their reply that Plaintiff’s response is untimely and should not be considered, in

II. DISCUSSION

The Medical Defendants state that Dr. Wright’s expert report offered standard-of-care

opinions only as to Separate Defendants Dr. Lemdja and Arnold. The Medical Defendants also

state that at Dr. Wright’s deposition, he offered a breach-of-standard-of-care opinion only as to

Defendant Dr. Lemdja; that he specifically testified that Defendant Smith acted properly on

February 5, 2016; that he testified that Defendant Turner was not at fault; and that he declined to

opine as to the conduct of Correct Care Solutions, LLC because he had not been asked to evaluate

that.

The Medical Defendants ask the Court to exclude Roscoe’s opinions, for various reasons.

First, they state that Roscoe is a nurse, not a doctor, and accordingly, she cannot opine on the

standard of care for physicians.3 Thus, they ask that the Court bar Roscoe from offering opinions

related to Defendant Dr. Lemdja’s medical judgment and treatment. Second, the Medical

Defendants ask that the Court prevent Roscoe from offering nursing opinions as to any Defendant

because those opinions either were not previously offered by Dr. Wright or otherwise conflict with

Dr. Wright’s opinions. Third, they ask the Court to prohibit Roscoe from offering “administrative”

opinions as to Defendant Turner because those opinions either were not offered by Dr. Wright or

otherwise conflict with his opinions. Fourth, they ask that the Court keep Roscoe from offering

opinions as to Defendant Correct Care Solutions, LLC (“CCS”) because Dr. Wright offered no

opinion as to CCS and because Roscoe’s opinion is that CCS failed to properly train its employees,

which is not a claim in this case. Finally, the Medical Defendants ask the Court to exclude Roscoe

light of the fact that the instant motion was styled as an “expedited motion” and requested the Court to shorten

Plaintiff’s response time. However, the Court issued no such order and to the extent that the request to shorten

Plaintiff’s response time constitutes a formal motion, it has been rendered moot by Plaintiff’s response.

3 Plaintiff’s response argues that Roscoe is, in fact, a doctor because she holds doctorate degrees in health care

administration and nursing practice. Academic titles aside, however, there appears to be no dispute that Roscoe is not

a licensed physician.

as an expert witness entirely because exclusion of all the above-listed opinions would effectively

bar her from offering any of the opinions in her expert report.

Separate Defendant Arnold has joined in the Medical Defendants’ motion. He states that

Roscoe’s opinions as to him are inconsistent with those expressed by Dr. Wright and, thus, she

should not be allowed to offer those opinions. Accordingly, Separate Defendant Arnold likewise

asks that the Court exclude Roscoe as an expert witness.

Plaintiff argues in response that Roscoe’s opinions are substantially similar to those of Dr.

Wright’s. Specifically, Plaintiff argues that Dr. Wright specifically testified that his medical

opinions were not limited to Defendant Dr. Lemdja. Plaintiff argues that Defendants’ motion

should be denied because they have time to cross-examine Roscoe on her opinions and obtain a

rebuttal expert.

As the Court explained in its August 27, 2019, order, the purpose of allowing substitution

of another expert was to put Plaintiff in the same position he would have been in but for Dr.

Wright’s death. It was not an opportunity to designate a “better” expert who holds differing or

more advantageous opinions than Dr. Wright. To that end, the Court held that any new expert

must hold substantially the same opinions as Dr. Wright and that Defendants could move to

exclude any newly raised opinions, theories, or subject matter.

Bearing those instructions in mind, the Court turns to Roscoe’s expert report. For

illustrative purposes, the Medical Defendants submitted Roscoe’s expert report, with annotations

included at each section the Medical Defendants believe contain newly raised opinions. The Court

will address each challenged opinion, grouped into categories for ease of access.4

4 The Court expresses no opinion as to any part of Roscoe’s expert report that was not designated by the Medical

Defendants as containing a newly raised opinion.

A. Dr. Lemdja

Roscoe opines that Defendant Dr. Lemdja’s medical decisions and treatment of Plaintiff

breached the standard of correctional care because she failed to document certain encounters with

Plaintiff and failed to take steps to acquire Plaintiff’s orthotic shoes. There does not appear to be

an issue as to whether Roscoe’s opinions about Defendant Dr. Lemdja exceed the scope of Dr.

Wright’s opinions. Indeed, Roscoe’s opinions resemble Dr. Wright’s opinions on this subject.

However, Defendants argue that Roscoe, a nurse, cannot testify as to the standard of care for

physicians. Thus, they argue that she cannot offer expert opinions regarding Defendant Dr.

Lemdja. Plaintiff argues in response that Roscoe served as a primary care provider at jails and

provided healthcare to inmates and, therefore, she has identical experience to that of Defendant

Dr. Lemdja. Consequently, Plaintiff argues that, as an experienced nurse practitioner and nurse,

Roscoe is qualified to opine as to Defendant Dr. Lemdja.

An expert witness must be qualified “by knowledge, skill, experience, training, or

education.” Fed. R. Evid. 702. “Although a nurse may be an expert witness as to the standard of

care for other nurses, it is not proper for a nurse to offer testimony on [an] issue . . . outside the

area of their expertise.” Girlinghouse v. Capella Healthcare, No. 6:15-cv-6008, 2016 WL

5539610, at *6 (W.D. Ark. Sept. 28, 2016) (quoting Neal v. Sparks Reg’l Med. Ctr., 2012 Ark.

328, 10 n.1, 422 S.W.3d 116, 122 (2012)). The issue of causation lies outside nurses’ area of

expertise. Id. This is true for both Plaintiff’s section 1983 deliberate indifference claim and the

state-law negligence claim. See Neal, 2102 Ark. 282 10 n.1, 422 S.W.3d at 122 (stating that nurses

cannot offer causation opinions in medical malpractice cases)5; Earp v. Cty. of Tulare, No. 1:11-

5 The Arkansas Medical Malpractice Act “applies to all causes of action for medical injury” and “shall supersede any

inconsistent provision of law.” Ark. Code Ann. § 16-114-202. “Medical injury” is broadly defined to include “any

adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical

care provider.” Ark. Code Ann. § 16-114-201(3). Thus, the Arkansas Medical Malpractice Act governs in place of

cv-0196-MJS PC, 2012 WL 1076217, at *4 (E.D. Cal. Mar. 29, 2012) (collecting cases holding

that nurses cannot offer expert opinions on causation for section 1983 deliberate indifference

claims).

Roscoe is an Advanced Practice Registered Nurse, not a physician. Her expert report

makes this clear by stating that her “opinions and findings are made to a reasonable degree of

nursing . . . certainty.” (ECF No. 89-3, p. 12) (emphasis added). She may not offer expert opinions

on the medical standard of care for physicians because she has not been educated and trained as

such and, thus, that matter is outside her area of expertise. See Grafton v. Bailey, No. CV 13-2940,

2018 WL 2325410, at *5 (W.D. La. May 22, 2018) (excluding a nurse’s expert opinions on the

standard of care for physicians and the conduct of a defendant doctor in a section 1983 deliberate

indifference case); Girlinghouse, 2016 WL 5539610, at *6. Moreover, to the extent that Roscoe

opines that Defendant Dr. Lemdja’s medical decisions or inaction proximately caused Plaintiff’s

injuries, she cannot do so because, as a nurse, the issue of causation lies outside her area of

expertise. Girlinghouse, 2016 WL 5539610, at *6; see also Earp, 2012 WL 1076217, at *4. For

these reasons, Roscoe cannot offer expert opinions related to Defendant Dr. Lemdja’s medical

decisions and treatment of Plaintiff.

B. Nursing Opinions

Roscoe offers several opinions related to the nursing standard of care. There can be no

dispute that, as a nurse, she is qualified to opine on this subject. However, the Medical Defendants

argue that Dr. Wright expressed no nursing opinions and, thus, Roscoe’s opinions are newly raised

claims for ordinary negligence or other common-law torts when, like in this case, a plaintiff is seeking to recover for

a “medical injury.” Dodson v. Charter Behavioral Health Sys. of Nw. Ark., Inc., 335 Ark. 96, 104, 983 S.W.2d 98,

102 (1998). When the Arkansas Medical Malpractice Act governs a matter falling outside of common knowledge,

the plaintiff must prove the following with expert testimony: “(1) the standard of care for medical care providers in

[the locality] or a similar locality, (2) a breach of that standard of care, and (3) that any breach was the proximate

cause of the plaintiff’s damages.” Robertson v. McCormick, No. 6:17-cv-6064-SOH, 2019 WL 1997479, at *7 (W.D.

Ark. May 6, 2019) (citing Ark. Code Ann. § 16-114-206(a)(1)-(3)).

and must be excluded. The Court need not answer the question of whether Dr. Wright expressed

nursing opinions because each of Roscoe’s challenged nursing opinions are newly raised.

Roscoe opines that “many different nurses” breached the nursing standard of care by failing

to refer Plaintiff to sick call when he verbally communicated medical issues to them but did not

submit the required sick-call form. (ECF No. 89-3, p. 9). She also opines that the same unspecified

nurses violated the nursing standard of care by enlisting jail staff to inform them every time

Plaintiff was seen not using a wheelchair he was given. There is no evidence before the Court

showing that Dr. Wright expressed these opinions. Thus, Roscoe shall not be allowed to offer

these nursing opinions.

Roscoe also opines that Defendant Turner violated the nursing standard of care by writing

to Plaintiff on February 15, 2016 that he must be seen by medical staff to determine the need for

his orthotic shoes. (ECF No. 89-3, p. 10). She also opines that Defendant Turner violated the

nursing standard of care by failing to review Plaintiff’s medical file to determine the medical

necessity for the orthotic shoes. Plaintiff has not pointed the Court to evidence showing that Dr.

Wright expressed these opinions. Thus, Roscoe cannot offer these opinions.

Roscoe further opines that Defendant Smith and LPN Brown violated the correctional

standard of care by failing to advise their supervisors of Plaintiff’s need for orthotic shoes, despite

their knowledge of the same. To begin, the Court notes that LPN Brown is not a party to this case.

Even if that itself is of no import, there is no evidence before the Court that Dr. Wright offered an

opinion as to whether LPN Brown and Defendant Smith’s actions, or inactions, breached a

standard of care. In fact, Dr. Wright makes no mention of LPN Brown in any of the evidence

submitted with the briefing of the instant motion and the only mention of Defendant Smith is when

Dr. Wright testified that she acted properly on February 5, 2016. (ECF No. 89-2, p.2). Thus,

Roscoe cannot offer this opinion.

C. Administrative Opinions

Roscoe opines that Defendant Turner’s failure to review Plaintiff’s medical file to

determine his need for orthotic shoes violated the administrative standard of care. (ECF No. 89-

3, p. 10). Plaintiff has not pointed the Court to evidence showing that Dr. Wright expressed these

opinions. Thus, Roscoe cannot offer this opinion.

Roscoe opines that Defendant Turner breached the correctional standard of care by failing

to proactively take steps to obtain the orthotic shoes Plaintiff requested. However, there is no

record evidence that Dr. Wright expressed this opinion. Rather, the record shows that Dr. Wright

testified that it was not Defendant Turner’s fault that she received late notice of Plaintiff’s problem.

(ECF No. 89-2, p. 3). Plaintiff has not pointed the Court to any testimony of Dr. Wright’s stating

otherwise. Thus, Roscoe will not be allowed to opine that Defendant Turner breached the

correctional standard of care by failing to take steps to obtain the orthotic shoes.

Roscoe also opines that Defendant Turner breached the administrative standard of care by

failing to monitor CCS staff and their provision of healthcare to inmates. Putting aside that

Plaintiff has not asserted a failure-to-supervise claim in this case, Plaintiff has not pointed the

Court to evidence showing that Dr. Wright expressed this opinion. Thus, Roscoe cannot offer this

opinion.

Roscoe opines further that Defendant Turner and Regional Manager Hoffman—who is not

a party to this case—breached some unspecified standard of care by failing to initiate a discussion

with jail administration to establish a policy regarding whether the warden or medical

administrative staff are responsible for approving prisoners’ medical devices. Although Dr.

Wright opined generally on the lack of such a policy and stated that Defendant Arnold was

responsible for creating the confusing chain-of-command issue, Plaintiff has not shown that Dr.

Wright offered this opinion in association with either Defendant Turner or Hoffman. Therefore,

Roscoe cannot offer this opinion as to Defendant Turner or Hoffman.

D. Correct Care Solutions, LLC

Roscoe opines that CCS should have attempted to resolve the apparent confusion between

medical administrative staff and Defendant Arnold as to whose responsibility it was to approve

medical devices. Dr. Wright explicitly declined in his deposition to offer an opinion as to CCS’s

conduct, from a corporate standpoint. Although he testified generally about the apparent confusion

between the warden and medical administrative staff as to who approved medical devices, nothing

in the record shows that he opined that CCS itself was responsible or otherwise breached any

standard of care. Accordingly, Roscoe may not offer an expert opinion on the issue of whether

CCS breached a standard of care.

Roscoe also opines that CCS breached an administrative standard of care by failing to

properly train and monitor its staff. Putting aside that Plaintiff does not assert a failure-to-train or

failure-to-supervise claim in this case, Plaintiff has not pointed the Court to evidence showing that

Dr. Wright held this opinion.6 Accordingly, Roscoe will not be allowed to offer opinions on

whether CCS failed to train and monitor its staff.

E. Warden Arnold

Roscoe opines that Defendant Arnold breached the correctional standard of care on

multiple occasions by failing to take steps to facilitate approval of the orthotic shoes Plaintiff

6 The closest Dr. Wright came to offering such an opinion was when he was asked in his deposition if CCS should

have trained its employees to report requests for medical devices to either the warden or healthcare administrator.

However, Dr. Wright did not answer the question in the affirmative or negative, instead stating that the proper

procedure would be to report the request to a physician or nurse practitioner, and that the proper procedure was not

followed in Plaintiff’s case. (ECF No. 90-1, p. 14). The Court finds this answer insufficient to establish that Dr.

Wright believed CCS failed to adequately train its staff.

requested and because he improperly inserted himself into the process for approving Plaintiff’s

orthotic shoes. Defendant Arnold argues that this opinion falls outside the scope of Dr. Wright’s

prior opinions and, for the reasons discussed in the Medical Defendants’ motion, Roscoe should

be prevented from opining as to him.

The Court disagrees. Dr. Wright testified that, despite knowledge of Plaintiff’s requests

for the orthotic shoes, Defendant Arnold failed to arrange with medical administrative staff to

facilitate approval of the orthotic shoes. Dr. Wright also expressed the opinion that Defendant

Arnold wrongfully inserted himself in the process for approving medical devices, which should

ordinarily rest with medical administrative staff, thereby creating a confusing chain-of-command

issue and delaying Plaintiff’s access to the orthotic shoes. Roscoe offers substantially the same

opinions. The Court finds that Defendant Arnold’s short and conclusory arguments to the contrary

are unpersuasive. Therefore, Roscoe shall be allowed to offer these expert opinions as to

Defendant Arnold.

III. CONCLUSION

For the above-stated reasons, the Court finds that the Medical Defendants’ motion (ECF

No. 89) should be and hereby is GRANTED IN PART AND DENIED IN PART. Roscoe may

give expert testimony regarding Defendant Arnold. She may not offer the other challenged expert

opinions discussed in this order.

IT IS SO ORDERED, this 22nd day of October, 2019.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge