“Once a practitioner has 27 been summoned to examine and treat a prisoner, he or she is under a duty to exercise that 28 degree of diligence, care, and skill such as is ordinarily possessed by other members of the 1 profession. Failure to do so is malpractice.”
How later courts described this case
- “Once a practitioner has 27 been summoned to examine and treat a prisoner, he or she is under a duty to exercise that 28 degree of diligence, care, and skill such as is ordinarily possessed by other members of the 1 profession. Failure to do so is malpractice.”
- “We disagree 24 with the court’s premise that physicians who serve a prison population may be held to a 25 standard of care different from the one imposed on physicians in other contexts.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 THE ESTATE OF MICHAEL WILSON, Case No.: 3:20-cv-00457-RBM-DEB
by and through its successor-in-interest,
12
PHYLLIS JACKSON, and PHYLLIS ORDER:
13 JACKSON,
(1) DENYING CCMG’S DAUBERT
14 Plaintiff,
MOTION TO PRECLUDE EXPERT
15 v. OPINION FROM PLAINTIFF’S
EXPERT DR. ALON STEINBERG
16 COUNTY OF SAN DIEGO, et al.,
REGARDING CORRECTIONAL
17 Defendants. STANDARD OF CARE
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(2) GRANTING IN PART AND
19 DENYING IN PART THE
COUNTY’S MOTION TO EXCLUDE
20
OPINION TESTIMONY BY
21 PLAINTIFF’S EXPERT DR. ALON
STEINBERG
22
23 [Docs. 97, 99]
24
25 On June 13, 2023, the CCMG Defendants filed a Daubert motion to preclude the
26 expert opinion/ testimony from Plaintiff’s expert Dr. Alon Steinberg regarding the
27 correctional standard of care (“CCMG’s Motion”). (Doc. 97.) The same day, the County
28 Defendants filed a motion to exclude opinion testimony by Plaintiff’s expert Dr. Alon
1 Steinberg (“County’s Motion”). (Doc. 99.) In CCMG’s Motion, it argues Dr. Steinberg’s
2 expert opinion should be precluded because his standard of care opinion is not based on
3 published peer reviewed standards, and he is not an expert in the correctional standard of
4 care. (Doc. 97 at 7–11.)1 In the County’s Motion, it argues Dr. Steinberg’s expert opinion
5 should be excluded because he offers no opinion on the individual nurse or supervisory
6 Defendants, and he is not an expert on correctional medicine. (Doc. 99 at 1–5.) On August
7 2, 2023, Plaintiff filed a brief in opposition to CCMG’s Motion (Doc. 110), and a brief in
8 opposition to the County’s Motion (Doc. 111). On August 30, 2023, the CCMG
9 Defendants filed a reply brief (Doc. 128), and the County Defendants filed a reply brief
10 (Doc. 126).
11 For the reasons discussed below, CCMG’s Motion is DENIED and the County’s
12 Motion is GRANTED IN PART and DENIED IN PART.
13 I. RELEVANT BACKGROUND
14 Plaintiff designated Dr. Alon Steinberg as an expert in cardiology who may provide
15 testimony concerning “the standard of care provided to Michael Wilson and the results and
16 consequences of the failure to provide care to Mr. Wilson.” (Doc. 96-2 (Ex. Q) at 1.)2
17 In his deposition, Dr. Steinberg explained that he is not an expert in the standard of
18 care for nurses. (Doc. 96 (Ex. U) (“Steinberg Dep.”) 8:6–9.) Nor has he worked in a
19 correctional facility, except for a brief period on an internal medicine rotation as a medical
20 student about 30 years ago. (Id. at 9:15-16, 71:8-17.) He has never received any education,
21 training, or experience regarding correctional medicine. (Id. at 9:17-19.) He is not familiar
22 with the National Commission on Corrective Healthcare Standards (“NCCHS”) nor any
23 written or published standards specific to correctional health. (Id. at 9:20–25.) Dr.
24 Steinberg did not consider himself an expert in the standard of care in correctional
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27 1 The Court cites the page number displayed on the docketed document, not the CM/ECF
pagination, unless otherwise noted.
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1 medicine. (Id. at 10:1–3.) Nor did he know what resources a correctional healthcare
2 provider has available for use in the jail. (Id. at 49:24–50:12.)
3 Dr. Steinberg does not intend to offer any opinion on the jail’s policies or procedures.
4 (Id. at 70:9–11.) With respect to Defendant Gore, Dr. Steinberg explained that some of his
5 testimony will reflect on Defendant Gore if he is responsible for how things work at the
6 jail. (Id. at 73:10–74:5.) Dr. Steinberg did not intend to offer any opinion regarding
7 Defendants Germono, Ibanez, nor Kumar at trial. (Id. at 75:7-23, 76:8-22.)
8 In his declaration, Dr. Steinberg explained to properly opine on the cause of Wilson’s
9 death, he “must evaluate and assess the conduct of each medical provider at the Jail.” (Doc.
10 110-1 (Ex. 1) ¶ 8.) Dr. Steinberg stated his “opinions on causation are intertwined by
11 assessment and opinions regarding the conduct, or misconduct, of each individual
12 defendant.” (Id. at ¶ 9.) Dr. Steinberg asserted Wilson’s heart condition “should have been
13 treated in the same manner, whether he was incarcerated or receiving treatment at a clinic
14 or hospital.” (Id. at ¶ 10.) Dr. Steinberg added “[i]t would be obvious to any prudent
15 medical provider that continuing life-saving medications in a person with severe congestive
16 heart failure (“CHF”) is clearly the standard of care in any environment.” (Id. at ¶ 11.)
17 II. LEGAL STANDARD
18 Federal Rule of Evidence (“Rule”) 702 governs the admissibility of expert
19 testimony. Rule 702 provides:
20 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)
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the expert’s scientific, technical, or other specialized knowledge will help the
22 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
23
of reliable principles and methods; and (d) the expert has reliably applied the
24 principles and methods to the facts of the case.
25
26 Fed. R. Evid. 702. “The party offering expert testimony has the burden of establishing its
27 admissibility.” Bldg. Indus. Ass’n of Washington v. Washington State Bldg. Code Council,
28 683 F.3d 1144, 1154 (9th Cir. 2012).
1 Before finding expert testimony admissible, the trial court must make a “preliminary
2 assessment of whether the reasoning or methodology underlying the testimony is
3 scientifically valid and of whether that reasoning or methodology properly can be applied
4 to the facts in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993).
5 “Under Daubert, the trial court must act as a ‘gatekeeper’ to exclude junk science that does
6 not meet Federal Rule of Evidence 702’s reliability standards by making a preliminary
7 determination that the expert’s testimony is reliable.” Ellis v. Costco Wholesale Corp., 657
8 F.3d 970, 982 (9th Cir. 2011) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145,
9 147–49 (1999)).
10 The Court must find “that any and all scientific testimony or evidence admitted is
11 not only relevant, but reliable.” Daubert, 509 U.S. at 590. “Expert opinion testimony is
12 relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And
13 it is reliable if the knowledge underlying it has a reliable basis in the knowledge and
14 experience of the relevant discipline.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir.
15 2010). “[T]he court must assess [an expert’s] reasoning or methodology, using as
16 appropriate such criteria as testability, publication in peer reviewed literature, and general
17 acceptance.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th
18 Cir. 2013) (quoting Primiano, 598 F.3d at 564). “Reliable expert testimony need only be
19 relevant, and need not establish every element that the plaintiff must prove, in order to be
20 admissible.” Id. (citing Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir.
21 2007)).
22 The inquiry required by Rule 702 “is a flexible one.” Daubert, 509 U.S. at 594; see
23 also City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014) (citing
24 Alaska Rent-A-Car, Inc., 738 F.3d at 969). “In evaluating proffered expert testimony, the
25 trial court is ‘a gatekeeper, not a fact finder.’” City of Pomona, 750 F.3d at 1043 (quoting
26 Primiano, 598 F.3d at 565). “Challenges that go to the weight of the evidence are within
27 the province of a fact finder, not a trial court judge. A district court should not make
28 credibility determinations that are reserved for the jury.” Id. at 1044. “Shaky but
1 admissible evidence is to be attacked by cross examination, contrary evidence, and
2 attention to the burden of proof, not exclusion.” Primiano, 598 F.3d at 564 (citing Daubert,
3 509 U.S. at 596).
4 III. DISCUSSION
5 A. Correctional Standard of Care
6 The CCMG and County Defendants argue Dr. Steinberg, a cardiologist, is
7 unqualified to opine on the standard of care for correctional healthcare providers because
8 he is not an expert in correctional medicine and his opinions are not the product of reliable
9 principles and methods. (See Doc. 97-1 at 4, 7–12; Doc. 99-1 at 4–5.) Plaintiff responds
10 that the standard of care for inmates is not different than it is for persons outside of prison
11 and that Dr. Steinberg’s causation opinion requires an analysis of how each individual
12 Defendant’s actions contributed to Wilson’s death. (See Doc. 110 at 1–4.) Plaintiff further
13 argues that Dr. Steinberg’s opinions are based on published guidance discussing the
14 treatment of individuals with cardiovascular disease. (See id. at 4–5.) The CCMG
15 Defendants respond with objections to Dr. Steinberg’s declaration and Plaintiff’s reliance
16 on a non-designated expert’s opinion from a different case. (See Doc. 128 at 2–4.) The
17 CCMG Defendants further respond that there is a difference between the standard of care
18 in correctional and non-correctional medicine and that Dr. Steinberg’s causation opinion
19 does not require opining on the standard of care of individual
20 Defendants. (See id. at 4–7.) The County Defendants respond that the standard of care in
21 correctional settings is different than that for non-correctional settings, and that Dr.
22 Steinberg cannot opine on the standard of care for nurses. (See Doc. 126 at 3–5.) The
23 Court has reviewed Dr. Steinberg’s expert report. (See Doc. 96-2 (Ex. S), Dr. Alon
24 Steinberg Expert Report (“Steinberg Report”).)
25 In Ball v. Kootenai County, a deliberate indifference case, the defendants argued that
26 the plaintiff’s expert witness, a cardiologist, was unqualified to render opinions because he
27 was not an expert in correctional medicine and was not familiar with the correctional
28 nursing standards of care. See Case No. 2:14-cv-00246-EJL-CWD, 2016 WL 4974949, at
1 *5 (D. Idaho 2016). The district court declined to exclude the expert. Id. at *6. The district
2 court noted that the defendants did not challenge the expert’s qualifications as a
3 cardiologist or his opinions that went toward the causation of the plaintiff’s injuries. Id.
4 And the district court criticized the defendants for failing to cite any statutory authority or
5 case law supporting their position. Id. at *5–6. Here, the CCMG Defendants do not appear
6 to challenge Dr. Steinberg’s qualifications as a cardiologist or his causation opinion, but
7 they do cite several cases in support of their position.
8 The CCMG Defendants argue that this case parallels Pyramid Techs., Inc. v.
9 Hartford Cas. Ins. Co., 752 F.3d 807 (9th Cir. 2014). (See Doc. 97-1 at 8.) In Pyramids
10 Techs., Inc, the Ninth Circuit reviewed a district court’s exclusion of an expert’s report for
11 basing his opinion on insufficient facts and data. Id. at 817. Specifically, the expert opined
12 that an opposing expert’s opinion was improper for using military standards of suitability
13 instead of commercial standards in testing selected parts from the plaintiff’s inventory. Id.
14 At his deposition, the expert testified that he did not know what standards should have been
15 used instead and was not aware of the governing commercial standards because it was not
16 his field of expertise. Id. The Ninth Circuit concluded that, under those circumstances,
17 the district court did not abuse its discretion in excluding the expert’s report. Id.
18 The facts of Pyramids Techs., Inc are inapposite. Dr. Steinberg has not stated
19 another expert failed to use a particular standard of care of which Dr. Steinberg is himself
20 unaware. Rather, Dr. Steinberg’s opinion is the Defendants failed to take actions in
21 addressing Wilson’s CHF and need for cardiac medication, which contributed to his death.
22 The CCMG Defendants also rely on Dukes v. Georgia, 428 F. Supp. 2d 1298 (N.D.
23 Ga. 2006). (See Doc. 97-1 at 9–11.) In Dukes, a deliberate indifference and medical
24 malpractice case, the district court found Georgia’s heightened standards for experts in
25 medical malpractice cases applicable to the plaintiff’s expert. See id. at 1310–13. Under
26 these heightened standards, the district court found the expert was qualified in the field of
27 correctional medicine. See id. at 1314. However, the district court found the expert’s
28 opinions regarding correctional staff’s failure to engage in earlier treatment of the
1 plaintiff’s cryptococcal meningitis, a condition the expert had not personally treated, and
2 the standards for correctional health care, were unreliable. See id. at 1314–15.
3 Specifically, the district court found the expert failed to specify what standards or specific
4 experience he relied on in rendering his opinions. See id. at 1315–16; see also Burleson v.
5 Texas Dep’t of Crim. Just., 393 F.3d 577, 585–87 (5th Cir. 2004) (finding district court did
6 not abuse discretion in excluding expert’s opinion as unreliable where the expert presented
7 “no studies which demonstrate a statistically significant link between thorium dioxide
8 exposure in dust or fumes and [the plaintiff’s] type of lung or throat cancer.”).
9 Unlike the expert in Duke, Dr. Steinberg’s opinions in his expert report are based on
10 his extensive experience treating patients with cardiomyopathy and CHF. Thus, Dr.
11 Steinberg has adequately grounded his opinions in his relevant experience treating patients
12 with cardiomyopathy and CHF.
13 The County Defendants rely on Ocampo v. Corizon, LLC., No. 1:18-cv-00047-DCN,
14 2020 WL 6219790 (D. Idaho Oct. 21, 2020) to argue that Dr. Steinberg’s opinion should
15 be excluded. In Ocampo, a deliberate indifference case, the district court did not exclude,
16 but rather gave very little weight, to a nurse’s testimony because she had no experience in
17 correctional medicine, did not familiarize herself with correctional medicine standards, and
18 had no experience with the disease at issue in the case. See id. at *6–8. Unlike in Ocampo,
19 Dr. Steinberg has extensive experience in treating patients with CHF. And any lack of
20 experience or knowledge concerning the standards in correctional facilities goes to the
21 weight, not admissibility, of Dr. Steinberg’s testimony.
22 Additionally, the Court is not convinced that correctional providers are held to a
23 different standard of care. See D.C. v. Mitchell, 533 A.2d 629 (D.C. 1987) (“We disagree
24 with the court’s premise that physicians who serve a prison population may be held to a
25 standard of care different from the one imposed on physicians in other contexts.”); see also
26 Nelson v. State of California, 139 Cal. App. 3d 72, 81 (1982) (“Once a practitioner has
27 been summoned to examine and treat a prisoner, he or she is under a duty to exercise that
28 degree of diligence, care, and skill such as is ordinarily possessed by other members of the
1 profession. Failure to do so is malpractice.”). But even if they were, the CCMG and
2 County Defendants have failed to explain (1) why the standard of care applicable to non-
3 correctional healthcare providers does not apply to correctional healthcare providers or (2)
4 why the standards of correctional medicine are distinct in a material way when applied to
5 the facts at hand.
6 Thus, the Court DENIES CCMG’s Motion and County’s Motion to preclude or
7 exclude Dr. Steinberg’s opinions due to his unfamiliarity with the correctional standard of
8 care.3 For these reasons, the Court also overrules the CCMG Defendants’ objection to Dr.
9 Steinberg’s deposition.4
10 B. Standard of Care Provided to Wilson
11 The County Defendants move to preclude or exclude Dr. Steinberg’s opinions under
12 Federal Rule of Evidence 403 and for lack of foundation. (See Doc. 99-1 at 2.) The County
13 Defendants fail to make any specific argument under Rule 403. Thus, the Court declines
14 to preclude or exclude Dr. Steinberg’s opinion on that basis.
15 The County Defendants further criticize Dr. Steinberg for not offering opinions
16 concerning the individual nurse and supervisory Defendants. (See id. at 3–4.) Plaintiff
17 responds that Dr. Steinberg’s causation opinion requires an analysis as to how each medical
18 provider’s actions contributed to Wilson’s death. (See Doc. 111 at 1.) The County
19 Defendants respond that they agree with Plaintiff, but that Dr. Steinberg failed to offer any
20 opinions as to any of the County Defendants during his deposition. (See Doc. 126 at 1–2.)
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23 3 The CCMG Defendants argue that Dr. Steinberg can still render a causation opinion
without opining on whether individual Defendants breached the standard of care. (See
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Doc. 128 at 6–7.) Specifically, they argue that Dr. Steinberg could take Dr. Venters’
25 conclusions regarding breaches of the standard of care in correctional medicine and
determine whether those breaches had any causal relationship to the ultimate injury. (See
26
id.) In light of the Court’s ruling concerning the correctional standard of care, the Court
27 need not resolve the CCMG Defendants’ argument.
4 The Court notes that it did not rely on any non-retained expert’s opinion in rendering its
28
1 In the summary of facts in Dr. Steinberg’s expert report, he notes actions that
2 physicians and nurses, including Defendants Dr. Peter Freedland, Anil Kumar, Marylene
3 Ibanez, Macy Germono, and Vincent Ronald Natan, took and/or failed to take. (See Doc.
4 96-2 at 3–5.) In the opinion section of his report, Dr. Steinberg chiefly criticizes the
5 physicians, including Dr. Arturo Leon and Defendant Freedland, for failing to take certain
6 steps and/or respond to Wilson’s condition. (See id. at 11.) Dr. Steinberg also criticizes
7 unspecified medical providers for appearing to be unaware of Wilson’s prior history,
8 failing to perform an adequate or complete history, failing to ensure Wilson was on and
9 taking his critically important CHF medications, examining Wilson in the hallway rather
10 than an examination room, and showing no particular interest in his medical condition and
11 complaints. (See id. at 11–12.) Dr. Steinberg concluded that the failure to give Wilson his
12 cardiac medications led to his death. (See id.)
13 Nowhere in Dr. Steinberg’s report does he address the standard of care for either
14 physicians or nurses. In fact, Dr. Steinberg noted he was not qualified to render a standard
15 of care opinion for nurses. (See Steinberg Dep. 73:6–9.) Dr. Steinberg explained during
16 his deposition that his opinions in his report were supported by the 2022 AHA/ACC/HFSA
17 Guideline for the Management of Heart Failure: A Report of the American College of
18 Cardiology/American Heart Association Joint Committee on Clinical Practice Guideline.
19 (See Steinberg Dep. 22:19–23:11; Doc. 110-6 (Ex. 6).) Nowhere in Dr. Steinberg’s report
20 does he mention this guideline, which came out long after Wilson’s death. Nor was the
21 disclose of this guideline during Dr. Steinberg’s deposition timely as it was not contained
22 or mentioned in his expert report or a supplemental report. See Icon-IP Pty Ltd. v.
23 Specialized Bicycle Components, Inc., 87 F. Supp. 3d 928, 949 (N.D. Cal. 2015)
24 (precluding expert’s opinion concerning phone conversations that formed the basis of his
25 opinions in his report but were not disclosed until his deposition).
26 During his deposition, Dr. Steinberg declined to offer opinions regarding the
27 individual nurse and supervisory Defendants. (See Steinberg Dep. 73:10–76:22.)
28 However, in his expert report, Dr. Steinberg provided opinions concerning deficiencies in
1 physicians’ examinations of Wilson, including Dr. Leon and Defendant Freedland, and the
2 failure of medical providers to ensure he was taking his critically important medications
3 for CHF. (See Steinberg Report at 9–12.) While Dr. Steinberg can opine on deficiencies
4 in the care Wilson received and how that may have contributed to his death, he is precluded
5 from opining on the actions of specific nurse Defendants and the standard of care. He is
6 also precluded from offering opinions regarding the actions of the supervisory Defendants
7 as his report says nothing regarding their actions.
8 Thus, the Court GRANTS the County’s Motion only in so far as precluding Dr.
9 Steinberg from offering opinions regarding the actions of specific nurse Defendants and
10 the standard of care.
11 IV. CONCLUSION
12 For the reasons discussed above, CCMG’s Motion is DENIED and County’s Motion
13 is GRANTED IN PART and DENIED IN PART. (Docs. 97, 99.)
14 IT IS SO ORDERED.
15 DATE: December 1, 2023
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HON. RUTH BERMUDEZ MONTENEGRO
18 UNITED STATES DISTRICT JUDGE
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