Melendez v. Inch

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILLIAM H. MELENDEZ,

Plaintiff,

v. Case No. 3:20-cv-1023-BJD-JBT

RICKY DIXON, et al.,

Defendants.

______________________________

ORDER

This cause is before the Court on the following motions: (1) Plaintiff’s

motion to strike the expert report and limit the testimony of the Florida

Department of Correction’s (FDOC’s) retained expert, Dr. Dean Aufderheide

(Doc. 389); (2) Plaintiff’s motion to limit the testimony of the FDOC’s non-

retained employee experts, Rusty McLaughlin and Carl Wes Kirkland (Doc.

390); (3) the FDOC’s motion to exclude expert testimony of Plaintiff’s retained

expert Dr. Terry Kupers (Doc. 391); and (4) Plaintiff’s motion to limit the

testimony of the FDOC’s non-retained experts Dr. Jonathan Greenfield and

Dr. George Emanoilidis (Doc. 392).

Before addressing the motions, the Court notes that admissibility

questions generally should be ruled upon as they arise during trial “to allow

questions of foundation, relevancy, and prejudice to be resolved in context.” See

Stewart v. Hooters of Am., Inc., No. 8:04-cv-40-T-17-MAP, 2007 WL 1752873,

at *1 (M.D. Fla. June 18, 2007). Indeed, given Rule 702’s “permissive

backdrop,” courts generally should rely “upon lawyer-adversaries and sensible

triers of fact to evaluate conflicts.” Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 589, 596 (1993) (“Vigorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but admissible

evidence.”). “[A]fter Daubert … the rejection of expert testimony is the

exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s note to

2000 amendments. As such, at trial, any party may seek reconsideration of the

evidentiary rulings in this Order in light of the evidence presented and shall

make contemporaneous objections when evidence is elicited.

Under the Federal Rules of Evidence,

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.

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Fed. R. Evid. 702. In performing its “gatekeeping function,” a district court

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.” United States v.

Delva, 922 F.3d 1228, 1251 (11th Cir. 2019) (footnote omitted) (quoting United

States v. Holt, 777 F.3d 1234, 1265 (11th Cir. 2015)). These three elements

have some overlap but are distinct. United States v. Frazier, 387 F.3d 1244,

1260 (11th Cir. 2004). “The party offering the expert has the burden of

satisfying each of these three elements by a preponderance of the evidence.”

Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005).

A. Dr. Aufderheide’s Expert Report

Plaintiff moves to strike the expert report and limit the testimony of Dr.

Aufderheide on two grounds: the report was not timely disclosed under Rule

26(a)(2)(B); and Dr. Aufderheide’s opinions “rest on an unreliable methodology

and are unfounded and unduly prejudicial.” Doc. 389 at 1-2.

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i. Timing of Disclosure

In its response to Plaintiff’s motion (Doc. 420), the FDOC concedes it

disclosed Dr. Aufderheide’s Rule 26(a)(2)(B) report late but argues the late

disclosure was “substantially justified” and harmless because it initially

disclosed Dr. Aufderheide as a Rule 26(a)(2)(C) witness, and Plaintiff’s counsel

received the report before Dr. Aufderheide’s full-day deposition. See Doc. 420

at 3-4. Under Rule 37, “[i]f a party fails to provide information … as required

by Rule 26(a) or (e), the party is not allowed to use that information … to supply

evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In other words,

a party who fails to timely disclose information “may still be allowed to use

that information … provided that the failure was substantially justified or is

harmless.” Knight through Kerr v. Miami-Dade Cnty., 856 F.3d 795, 812 (11th

Cir. 2017) (internal quotation marks omitted). The party resisting the

“automatic sanction” under Rule 37 has the burden to show substantial

justification or harmlessness. Id.

The parties agree the report was disclosed late even if they disagree on

the reason or justification for the lateness. Regardless of whether the late

disclosure was justified, the Court finds the FDOC demonstrates its late

disclosure was harmless under the circumstances. Plaintiff received the report

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before Dr. Aufderheide’s deposition—albeit the day before. Plaintiff did not

seek an extension of the discovery deadline or to reschedule the deposition.

Plaintiff’s counsel, Alexa Van Brunt, deposed Dr. Aufderheide from 9:07 a.m.

until 4:46 p.m. (with lunch and comfort breaks). See Doc. 389-5 at 1, 315. To

counsel’s credit, her questions demonstrated her preparedness and

effectiveness. The cases on which Plaintiff relies are, thus, distinguishable. See

Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 719 (11th Cir. 2019) (affirming

partial exclusion of a supplemental report disclosed the day before the expert’s

deposition because “the severity of the harm” was compounded when the expert

“left his deposition after only three hours without the prior agreement of the

parties”); Hewitt v. Liberty Mut. Grp., Inc., 268 F.R.D. 681, 684 (M.D. Fla. 2010)

(finding a late disclosed expert report was not harmless because the defendant

had no opportunity to re-depose the expert after receiving the report).

Accordingly, the Court finds Dr. Aufderheide’s report is not due to be excluded

for being disclosed late, and Plaintiff’s motion is due to be denied as to this

request.

ii. Admissibility of Opinions

In its amended hybrid witness and impeachment disclosures (Doc. 367-

3), the FDOC represents as follows with respect to Dr. Aufderheide’s

background and expected testimony:

5

Dr. Aufderheide, clinical and forensic psychologist

with a board-certification in correctional psychology,

served the Department as its Chief Mental Health

Services at all times alleged in Plaintiff’s Complaint.

His testimony will include issues pertaining to

restrictive housing and effects on mental health, non-

suicidal self-injury, risk assessment and proper

documentation, and classification and management

tools for serial self-injurious behaviors. While working

for the Department, Dr. Aufderheide served as a

member of multiple ACA[1] committees and can speak

to the development of the national accreditation

standards and training materials utilized by FDOC.

Dr. Aufderheide will also testify regarding the mental

health care Plaintiff received while confined in close

management [(CM)], and the measures FDOC took to

ensure compliance with the Department’s rules and

procedures.

Doc. 367-3 at 7. In his report, Dr. Aufderheide states that he was retained to

“provide an expert opinion pertaining to [Plaintiff’s] access to necessary mental

health care during his current incarceration in the [FDOC], and whether the

mental health and services he received were provided in accordance with the

Department’s mental health policy and procedures, for which [Dr.

Aufderheide] was responsible.” Doc. 389-1 at 5.

Plaintiff does not challenge Dr. Aufderheide’s proposed testimony

regarding the procedures and policies in place at the FDOC for an inmate with

1 American Correctional Association.

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mental illness to access and receive necessary mental health treatment. See

generally Doc. 389. Rather, Plaintiff argues Dr. Aufderheide’s purported

opinions—expressed in his report and deposition testimony—are unreliable in

part or go beyond the parameters set forth in the FDOC’s disclosure. See id. at

10.

First, Plaintiff argues “Dr. Aufderheide should not be permitted to opine

on [Plaintiff’s] mental health or mental health treatment because he lacks a

reliable methodology to form those opinions.” Id. For instance, Plaintiff

challenges Dr. Aufderheide’s opinion that Plaintiff specifically—as opposed to

inmates generally—has had “unimpeded access to necessary mental health

treatment and services commensurate with his assessed mental health needs.”

Id. See also Doc. 389-1 at 11. Plaintiff maintains Dr. Aufderheide’s opinion is

unreliable because Dr. Aufderheide did not himself evaluate Plaintiff but

rather bases his opinion on a review of a “cherrypicked summary of Plaintiff’s

[FDOC] records” (a “timeline”) rather than a review of medical and other

records that “bear on the mental health treatment [he] received.” See Doc. 389

at 12, 14. According to Plaintiff, the timeline itself is unreliable because it was

created for this litigation and “does not accurately reflect the evidence in this

case,” and Dr. Aufderheide did not independently “vet” the information

included (or excluded). Id. at 15.

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Plaintiff does not cite to or rely upon Rule 703 in his motion, but his

argument that Dr. Aufderheide improperly relies on a timeline as opposed to

the source documents (i.e., Plaintiff’s medical records) implicates that Rule,

which provides as follows, in pertinent part:

An expert may base an opinion on facts or data in the

case that the expert has been made aware of or

personally observed. If experts in the particular field

would reasonably rely on those kinds of facts or data

in forming an opinion on the subject, they need not be

admissible for the opinion to be admitted.

Fed. R. Evid. 703.

In its response, the FDOC concedes that Dr. Aufderheide was not

retained to offer an opinion “on Plaintiff’s mental health.” See Doc. 420 at 5.

Moreover, Dr. Aufderheide himself acknowledges he cannot ethically do so

given he has never evaluated Plaintiff. See Doc. 389-1 at 32, 78; Doc. 389-5 at

43-44. However, in apparent contradiction, the FDOC also argues Dr.

Aufderheide is qualified to offer a reliable opinion that “Plaintiff’s mental

health treatment and accessibility to mental health care” was within FDOC’s

“guidelines and protocols.” See Doc. 420 at 6. The FDOC contends Dr.

Aufderheide reached such an opinion based on “a review of Plaintiff’s medical

records” and other institutional records. Id. Additionally, in apparent response

to the criticism that Dr. Aufderheide relied solely on the timeline, the FDOC

says, “Plaintiff’s medical records are a type of fact and data that is both reliable

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and reasonably relied upon … in forming [an] opinion as to the accessibility

and appropriateness of Plaintiff’s mental health care.” Id. at 10 (emphasis

added).

The fallacy in the FDOC’s argument regarding the timeline is that Dr.

Aufderheide did not review Plaintiff’s medical records. He references no

medical records in the section of his report in which he identifies the documents

he reviewed in preparing the report, see Doc. 389-1 at 7-8, and he testified at

deposition that he relied primarily on the timeline, which is “an extract of the

electronic medical record as it pertains to [Plaintiff’s] clinical contacts with

mental health,” see Doc. 389-5 at 39-40, 109-10. Dr. Aufderheide said he

reviewed Plaintiff’s electronic medical record for “[a] few hours,” though he

could not say with any specificity which items he reviewed or why, other than

to say he reviewed some items “that [he] thought … might be helpful … to

formulate [his] opinion.” Id. at 41, 286, 307-09.

Neither Dr. Aufderheide nor the FDOC contends that the timeline Dr.

Aufderheide relied upon is the kind of data “experts in the … field would

reasonably rely on … in forming an opinion on the subject.” See Fed. R. Evid.

703. Of particular concern is that Dr. Aufderheide opines, based purely on the

timeline, that the FDOC mental health providers have provided Plaintiff with

“appropriate care” and appear to have appropriately diagnosed him, but also

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concedes neither he nor another medical provider ethically could make a

diagnosis without examining a patient. See Doc. 389-5 at 33, 43-44, 78-82, 109-

10, 261-62, 267, 286-87.

To the extent Dr. Aufderheide simply parrots the opinion or conclusions

of others who may be considered experts, his opinion is not admissible. See,

e.g., Schoen v. State Farm Fire & Cas. Co., No. CV 21-00265-JB-N, 2022 WL

16586689, at *7 (S.D. Ala. Nov. 1, 2022) (“If an expert simply parrots another

individual’s out-of-court statement, rather than conveying an independent

judgment that only incidentally discloses the statement to assist the jury in

evaluating the expert’s opinion, then ... the expert thereby becomes little more

than a backdoor conduit for an otherwise inadmissible statement.” (alteration

in original)); La Gorce Palace Condo. Ass’n, Inc. v. Blackboard Specialty Ins.

Co., 586 F. Supp. 3d 1300, 1306 (S.D. Fla. 2022) (“[Rule 703] does not permit

an expert to ‘simply repeat or adopt the findings of another expert without

attempting to assess the validity of the opinions relied upon.’” (emphasis in

original)).

Accordingly, the Court finds Plaintiff’s motion is due to be granted in

part to the extent that Dr. Aufderheide may not offer opinions he reached based

solely on the timeline, including that Plaintiff has had unimpeded access to

necessary mental health care in the FDOC, that Plaintiff “possibly … may be

10

malingering his symptoms,” that Plaintiff may be self-harming for secondary

gain (or for “instrumental” reasons), or that Plaintiff’s mental health providers

have (or appear to have) properly, accurately, or appropriately diagnosed him.

See Doc. 389-1 at 21, 27; Doc. 389-5 at 84.2

Second, Plaintiff argues Dr. Aufderheide should not be permitted to offer

opinions on matters that go beyond his clinical expertise as stated in the

FDOC’s disclosure. See Doc. 389 at 17. Plaintiff notes Dr. Aufderheide’s

opinions offered in his report and at his deposition stray beyond those

identified in the disclosure because he addresses or opines on the following:

Plaintiff’s gang affiliation as it relates to his access to constitutionally

adequate mental health care at the FDOC; Plaintiff’s dangerousness as it

relates to his housing placement or access to constitutionally adequate mental

health care; Plaintiff’s presumed financial incentive in this litigation; and prior

litigation and settlements (not involving Plaintiff).3 Id. See also Doc. 389-1 at

10, 25, 29; Doc. 389-5 at 67-73, 85-86.

2 Not only does the FDOC not argue or demonstrate that the timeline Dr.

Aufderheide reviewed is the kind of data “experts in the … field would

reasonably rely on … in forming an opinion on the subject,” see Fed. R. Evid.

703, but his opinions on these topics appear speculative or conjectural, see

Daubert, 509 U.S. at 590 (explaining the word “knowledge” in Rule 702

“connotes more than subjective belief or unsupported speculation”).

3 It appears from Dr. Aufderheide’s deposition testimony and the FDOC’s

response that Dr. Aufderheide mentions other litigation to explain the context

in which he “form[ed] and implement[ed] appropriate mental health

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The FDOC appears to concede Dr. Aufderheide’s report strays beyond

the scope of the disclosure by clarifying in its response to Plaintiff’s motion that

Dr. Aufderheide has been retained “as an expert to discuss the mental health

treatment programs and procedures he developed for [FDOC] and provide an

opinion that Plaintiff’s treatment by the [FDOC] [was] guided and followed by

[sic] these protocols.” Doc. 420 at 1-2, 5-7. See also Doc. 389-5 at 30 (Dr.

Aufderheide testifying at deposition that he will offer opinions on Plaintiff’s

“access to necessary mental health care while incarcerated in [FDOC]” and

whether the mental health treatment Plaintiff received “was provided in

accordance with [FDOC’s] policies and procedures”).4 Accordingly, Plaintiff’s

motion is due to be denied in part as moot as to this argument.

procedures and protocols at [FDOC].” See Doc. 420 at 8. See also Doc. 389-5 at

36-37. In other words, the information appears to have been mentioned merely

as relevant to his background and experience. To the extent Dr. Aufderheide

intends to offer legal conclusions regarding whether Plaintiff’s mental health

treatment complies with the law, such opinions would be inadmissible. See

Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (“A

witness … may not testify to the legal implications of conduct; the court must

be the jury’s only source of law.”).

4 Page numbers for deposition transcripts correspond to those of the

document itself, not the Court’s electronic case management system.

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B. FDOC’s Hybrid Witnesses McLaughlin & Kirkland

McLaughlin and Kirkland are employed by the FDOC and have been

disclosed as non-retained experts under Rule 26(a)(2)(C).5 Plaintiff seeks an

order barring McLaughlin and Kirkland from “offering opinions about

Plaintiff’s conduct and conditions, [FDOC’s] ACA accreditation, and how

[FDOC’s] restrictive housing compares to those of other states.” See Doc. 390

at 1. Plaintiff argues these witnesses should be “limited to opining based on

their personal observations and knowledge” because they are non-retained

experts under Rule 26(a)(2)(C) who did not disclose expert reports under Rule

26(a)(B)(4),6 and because they do not satisfy the requirements for expert

testimony under Rule 702. See id. at 4-5.

A witness disclosed as an expert but who is not “retained or specially

employed to provide expert testimony” is not required to disclose a written

report. Fed. R. Civ. P. 26(a)(2)(C). See also Timpson by & through Timpson v.

Anderson Cnty. Disabilities & Special Needs Bd., 31 F.4th 238, 253 (4th Cir.

2022) (“Hybrid witnesses—fact witnesses with expertise that will inform their

5 These witnesses also were disclosed under Rule 30(b)(6). See Doc. 390-

2 (deposition notice). The Court’s ruling in this Order is limited solely to these

witnesses’ proposed testimony in their roles as non-retained or “hybrid”

witnesses.

6 There is no Rule 26(a)(B)(4).

13

testimony—do not fall under Rule 26(a)(2)(B)’s purview.”). Instead, a party

must disclose “the subject matter on which the witness is expected to present

evidence” and “a summary of the facts and opinions to which the witness is

expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). Plaintiff does not contend the

FDOC’s disclosure is incomplete or non-compliant. See Doc. 390 at 2, 4. Rather,

Plaintiff argues McLaughlin and Kirkland purport to offer opinions beyond the

scope of their day-to-day responsibilities. See id. at 6-7, 13.

Hybrid fact/expert witnesses “must testify from the personal knowledge

they gained on the job.” See Indianapolis Airport Auth. v. Travelers Prop. Cas.

Co. of Am., 849 F.3d 355, 371 (7th Cir. 2017). The First Circuit offers helpful

language demarcating the distinction between a Rule 26(a)(2)(B) “retained”

expert and a Rule 26(a)(2)(C) “non-retained” expert: “In order to give the

phrase ‘retained or specially employed’ any real meaning, a court must

acknowledge the difference between a percipient witness who happens to be an

expert and an expert who without prior knowledge of the facts giving rise to

litigation is recruited to provide expert opinion testimony.” Downey v. Bob’s

Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011). Whether an expert

is properly considered “non-retained” and therefore exempted from the report

requirement depends on the nature of the opinion he intends to offer and how

he formulated that opinion:

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[W]here . . . the expert is part of the ongoing

sequence of events and arrives at his causation opinion

[in that capacity], his opinion testimony is not that of

a retained or specially employed expert. If, however,

the expert comes to the case as a stranger and draws

the opinion from facts supplied by others, in

preparation for trial, he reasonably can be viewed as

retained or specially employed for that purpose, within

the purview of Rule 26(a)(2)(B).

Id. at 7 (internal citations omitted).

When a witness purports to offer opinions “not grounded in [his] own

experience,” the testimony must meet the standard for admission under Rule

702 and Daubert. See Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312,

1317 (11th Cir. 2011). For instance, when a witness provides opinion testimony

based on a hypothesis, as opposed to personal experience, it “crosses the line

from lay to expert testimony” and must satisfy Rule 702. Id. at 1317-18.

Plaintiff contends McLaughlin and Kirkland should be limited to offering

opinions “based only on their personal knowledge of [FDOC] policy, protocol,

and procedure, gained from their experience” and not “about the content of

Plaintiff’s disciplinary records, the privileges he may – or may not – have

actually received in [CM], [FDOC’s] purported ACA accreditation, and any

testimony about [FDOC] polices unrelated to their employment.” See Doc. 390

at 5-6. As to each witness, Plaintiff takes issue with discrete portions of their

proffered testimony. As such, the Court will address each in turn.

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i. McLaughlin

In its disclosure, the FDOC represents that McLaughlin will testify

regarding classification matters in his role as Bureau Chief of Inmate

Classification Management, see Doc. 390-1 at 5, a position he has held for about

fifteen years, see Doc. 390-3 at 19. Given his background, McLaughlin “is

experienced in the conditions inmates are subjected to in confinement status.”

Doc. 390-1 at 5. Plaintiff does not argue McLaughlin is not qualified to offer

opinions regarding “classification policies and procedures.” See Doc. 390 at 6-

7. Plaintiff takes issue with the following categories of testimony: Plaintiff’s

disciplinary record and a specific incident involving Officer Williams of which

McLaughlin has no independent personal knowledge; the interrelationship

between mental health and housing; the privileges Plaintiff received or was

denied when housed in CM; ACA accreditation; and whether the FDOC’s use

of CM housing and its attendant conditions are constitutional. Id. at 7-9, 14-

15.

The FDOC does not specifically address these categories of contested

testimony but rather broadly contends that McLaughlin’s “technical training

and specialized knowledge of . . . classification management systems” qualifies

him to offer the reliable and helpful opinions proffered. See Doc. 421 at 9-11.

Given McLaughlin’s experience and background and his deposition testimony,

16

the Court concludes he may offer opinions regarding relevant FDOC

classification policies or rules, the process for moving an inmate into and out

of CM status, and privileges available to inmates according to their housing

classification. See, e.g., Doc. 390-3 at 18-19, 26, 28-29, 35, 39, 55-56, 70-73, 146-

47 (explaining at his deposition that he has “experience and knowledge on

confinement issues … [and] why [the FDOC does] things in certain instances”;

the general conditions of confinement in CM cells and whether those conditions

comply with applicable rules; and the movement of inmates through CM).7

McLaughlin may not, however, offer expert testimony on matters outside

his admitted areas of expertise, that are based purely on speculation or

conjecture without factual foundation, or that are within the jury’s province,

including inmate discipline and security, mental health, ACA accreditation, or

whether CM housing is “constitutional.” See, e.g., id. at 23, 50, 63, 91, 128-30,

175-77, 202-05 (testifying that he is not “responsible for [ensuring compliance

with] use of force [rules]” and is “not the ACA expert”). See also Montgomery,

898 F.2d at 1541; Frazier, 387 F.3d at 1261 (“[I]t remains a basic foundation

for admissibility that ‘[p]roposed [expert] testimony must be supported by

7 Whether McLaughlin will be permitted to respond to specific

hypotheticals or to opine on Plaintiff’s classification status, the privileges he

received in CM, or incident/disciplinary reports Plaintiff incurred is best

addressed in context at trial in consideration of the evidence adduced. As such,

the Court will defer ruling on that portion of Plaintiff’s motion.

17

appropriate validation—i.e., good grounds, based on what is known.’” (internal

quotation marks omitted) (quoting Daubert, 509 U.S. at 590)). Accordingly,

Plaintiff’s motion will be granted in part.

ii. Kirkland

The FDOC contends Kirkland will “testify based on his more than thirty

years as an FDOC corrections professional including serving as the Bureau

Chief of Security Operations.” See Doc. 390-1 at 3. Kirkland has experience and

knowledge regarding FDOC’s “practices, procedures and policies involving

individuals incarcerated at FDOC, including but not limited to … all inmates

who are placed in confinement.” Id. He will describe the profile of the FDOC’s

inmate population and the necessity for “close custody prisons.” Id.

The Court will not summarize the entirety of the FDOC’s disclosure as

to Kirkland because Plaintiff challenges only two categories of Kirkland’s

proposed expert opinion testimony: how the FDOC’s security policies compare

to those of other states; and that Plaintiff is a violent person whose placement

in CM is warranted. See Doc. 390 at 10-11, 15-16. The FDOC does not address

these discrete components of Kirkland’s proffered testimony in their response

but rather clarifies that Kirkland’s opinion testimony will relate to “subjects

within [his] professional ken,” including “whether there is a penological

purpose for CM, the internal placement processes and privileges an inmate in

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CM is entitled to, and the distinction from other types of restrictive housing

such as AC [administrative confinement].” See Doc. 421 at 5, 11-12. Given this

portion of Plaintiff’s motion is unopposed, the Court finds the motion is due to

be granted to the extent Kirkland may not offer opinion testimony on the

FDOC’s security policies compared to those of other states or that Plaintiff is a

violent person whose CM placement is warranted.

C. Dr. Kupers’s Expert Testimony

Defendant Dixon, on behalf of the FDOC, seeks to limit the testimony of

Plaintiff’s expert Dr. Kupers. See Doc. 391 at 1, 13. The FDOC argues Dr.

Kupers should be limited to testifying about Plaintiff’s mental health diagnosis

and should not be permitted to offer “opinions on American prison systems or

inmates in general” because he is not a “data scientist and his qualitative

studies on inmates generally are not reliable or relevant.” Id. at 13.

Additionally, the FDOC argues, to the extent Dr. Kupers formed his opinions

in reliance on “his generalized opinion of America’s prison conditions,” his

testimony is inadmissible under Rule 703 “because psychiatrists do not

generally rely upon such opinions to form their medical diagnoses.” Id. at 3,

13. In response (Doc. 419), Plaintiff contends Dr. Kupers is “a nationally

recognized psychiatric expert on the effects of solitary confinement on mental

19

health,” who is being proffered as an expert to opine on the effect Plaintiff’s

prolonged CM confinement has had on his mental health. Doc. 419 at 1.

First, the Court finds Dr. Kupers is sufficiently “qualified to testify

competently regarding the matters he intends to address.” See Delva, 922 F.3d

at 1251. His qualifications are explained in detail in his expert report dated

September 16, 2021, and summarized in Plaintiff’s response. See Doc. 391-1 at

21-40, 43-44. See also Doc. 419 at 4-5. Notably, the FDOC does not argue Dr.

Kupers is not qualified to testify as an expert, nor does the FDOC contest the

opinions offered in Dr. Kupers’s multiple reports. See generally Doc. 391.

Rather, the FDOC challenges the reliability and relevance of some of Dr.

Kupers’s statements he made at his deposition in response to specific

questions. Id. The FDOC says Dr. Kupers’s deposition makes clear “that he

intends to erroneously opine on matters and issues that fall outside of his

medical expertise,” including “blanket assertions that concern his book” about

solitary confinement; relying on his own qualitative research without

identifying a control group; and relying on third party social psychologists and

reigning field standards of prison conditions, which themselves are hearsay

and not relevant to Dr. Kupers’s opinions about Plaintiff’s mental health

diagnoses. Id. at 3, 5, 7, 9.

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It appears the FDOC misinterprets Dr. Kupers’s deposition testimony or

references discrete statements out of context. First, at his deposition, Dr.

Kupers was asked to explain the book he published, which he references in the

section of his September 16, 2019 report summarizing his background and

qualifications. See Doc. 391-2 at 80; Doc. 391-1 at 43. The FDOC says Dr.

Kupers’s response to that deposition question “fails to meet Rule 702’s

helpfulness standard.” See Doc. 391 at 7. But the response to the question itself

contains no opinions related to Plaintiff; Dr. Kupers merely summarized his

book. See Doc. 391-2 at 80-81. As such, it is unclear what opinion testimony the

FDOC is asking the Court to exclude. Any specific testimony about Dr.

Kupers’s book that may be proffered or elicited at trial is best considered in

context at that time.

To the extent the FDOC contends Dr. Kupers’s research on “supermax

prisons” is not relevant to the issues before the Court because it is unrelated

to Dr. Kupers’s mental health diagnoses of Plaintiff, the position is

unconvincing. Dr. Kupers was retained to opine on more than just Plaintiff’s

present mental health diagnoses. He is being offered to “provide opinions about

the repercussions of [Plaintiff’s] confinement in [CM]” over an extended period.

See Doc. 391-1 at 44. His opinions regarding the effect prolonged CM

confinement has had on Plaintiff’s mental health are informed by “research

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and from [his] own and others’ expert investigations for the courts[] about the

harm of solitary confinement.” Id. at 45, 63-66.

According to Dr. Kupers, “[s]olitary confinement exacerbates mental

illness,” and thus Plaintiff’s extended stay in solitary confinement caused

“more depression, more delusions, [and] more hallucinations,” leading to self-

harm. See Doc. 391-2 at 117. As such, Dr. Kupers’s extensive research and

experience related to solitary confinement are relevant.

Second, the FDOC contends Dr. Kupers testified at his deposition that

his qualitative research did not have a control group. See Doc. 391 at 5. That

is not accurate. Dr. Kupers explained that his research is qualitative (based on

stories of people) as opposed to quantitative (based on sophisticated statistical

methods).8 See Doc. 391-2 at 95-93. He says both are “about equally as reliable

and as important in the field.” Id. at 96. Based on his qualitative research,

which included a control group, he has found there is “very little self harm

among adult men who are not in solitary confinement,” while a “significant

proportion of [inmates in solitary confinement] are self-harming.” Id. Dr.

Kupers explained that based on his research, he reached a “valid scientific

conclusion … [that] more people in solitary confinement [] are self-harming

8 Dr. Kupers acknowledges that he is not a data scientist, but he is “up

to date on statistical methods in data science sufficiently to read critically the

literature of medicine and psychiatry.” See Doc. 391-2 at 104.

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than … people who [are not] in solitary confinement.” Id. at 96-97. The control

group consisted of the people not in solitary confinement. See id.

Third, the FDOC argues Dr. Kupers’s opinions are not reliable because

they are based on a “regurgitation of third party data” that did not inform his

diagnoses of Plaintiff and that he could not explain in detail at his deposition.

See Doc. 391 at 9, 11. These arguments take Dr. Kupers’s deposition testimony

out of context or are based on a misunderstanding.9 At his deposition, Dr.

Kupers was asked why he cited (in his report) a particular article by Dr. Craig

Haney, “a very prominent researcher in the field” whose published articles

have a methodology and are peer reviewed. See Doc. 390-2 at 86, 90. Dr. Kupers

explained the article he cited was a summary of research Dr. Haney conducted

regarding “the detrimental effects of long-term isolation.” Id. at 86-88, 90. The

attorney continued asking Dr. Kupers to explain the methodology and data

derived from “the study,” but Dr. Kupers stressed multiple times he was not

referring to a specific study but rather “a summary of all of the research that

[Dr. Haney] was aware of.” Id. at 91-93. That Dr. Kupers could not respond to

the attorney’s repeated questions that demonstrated a lack of understanding

9 To the extent the FDOC maintains Dr. Kupers’s reliance on third party

data is not relevant to his opinions about Plaintiff, the Court finds the

argument unpersuasive as already noted.

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says nothing about the reliability of Dr. Kupers’s opinions on the topic under

discussion.

To the extent the FDOC argues Dr. Kupers’s opinions are unreliable

because they are based on “a summary of studies,” Dr. Kupers testified that he

cited the summary in a footnote of his report merely “to reference how other

experts have discussed the same [topics]” as him. Id. at 86. He did not say he

reached his opinions based solely on the summary. Id. On the contrary, he

explained his opinions are informed by his own research, research conducted

by others, and by “read[ing] … extant literature in the field.” Id. at 95. Dr.

Kupers also testified that his “research is valid … and is recognized as such in

the profession.” Id. The FDOC points to no evidence to the contrary.

The FDOC also takes issue with Dr. Kupers’s reliance on the National

Commission on Correctional Health Care (NCCHC) in forming his opinions,

contending Dr. Kupers could not say who founded the commission and does not

know how many states have sought accreditation from it. See Doc. 391 at 12.

Dr. Kupers explained at his deposition that the NCCHC is the “accrediting

body for correctional facilities.” See Doc. 391-2 at 42. According to Dr. Kupers,

Florida “is not in compliance with [the] standards” set forth by the NCCHC

and other associations, which “require the exclusion of people with mental

illness from solitary confinement.” Id. at 41-42. That Dr. Kupers could not say

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who “accredited the NCCHC” or who founded it does not make his opinions

unreliable. Indeed, Dr. Kupers stated the NCCHC is “prominent . . . . [and is]

recognized by all departments of correction, even if [a] department of correction

opts not to seek accreditation.” Id. at 45. The FDOC points to no evidence to

the contrary.10

Any criticisms counsel has about how Dr. Kupers formulated his

opinions or the basis upon which those opinions rest may be explored on cross-

examination. See Daubert, 509 U.S. at 596. And any objections to specific

testimony that may be elicited at trial is best addressed when the evidence is

proffered and in consideration of the other evidence already before the jury.

Accordingly, the FDOC’s motion will be denied.

D. FDOC’s Hybrid Witnesses Drs. Greenfield & Emanoilidis

Plaintiff seeks to limit the testimony of the FDOC’s non-retained experts

Dr. Greenfield, a psychiatrist, and Dr. Emanoilidis, a clinical psychologist, who

work within or for the FDOC. See Doc. 392 at 1. Plaintiff asserts two grounds

for the relief requested: (1) the FDOC’s disclosure does not comply with Rule

26(a)(2)(C); and (2) the witnesses intend to “testify beyond the scope of their

observations and opinions made in the course of treating Plaintiff.” Id. at 2-3.

10 Even one of the FDOC’s hybrid witnesses cites to the NCCHC as a

source of relevant standards for clinicians in the corrections field. See Doc. 392-

7 at 111-12, 253, 255 (deposition transcript of Dr. Emanoilidis).

25

Alternatively, Plaintiff argues the experts’ proposed testimony is inadmissible

under Rule 702 and Daubert as unreliable and unhelpful. Id. at 3. Plaintiff

does not challenge the adequacy of either witness’s credentials to opine on their

“first-hand observations of Plaintiff [] made in the course of their treatment

and based on the medical records they created and reviewed in providing that

treatment.” Id.

The proposed scope of the witnesses’ testimony is set forth in the

provided disclosure, which the Court will not reproduce here. See Doc. 392-1 at

6-7. Based on those summaries, the proposed scope of each witness’ opinion

testimony is fairly narrow. See id. The “summary disclosure” requirement

under Rule 26(a)(2)(C) is not onerous, and courts are to “take care against

requiring undue detail.” Fed. R. Civ. P. 26 advisory committee’s note to 2010

amendment. Given Drs. Greenfield and Emanoilidis each testified at a

preliminary injunction hearing,11 see generally Docs. 392-8, 392-13, their own

attorney clarified by email the scope of their expected expert opinion

11 The parties should not interpret the Court’s reference to prior

testimony admitted without objection in a different procedural context to mean

that all opinion testimony offered and accepted in that prior context will be

admissible at trial under the applicable Federal Rules of Evidence. “[T]hat 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.” Moore v. Intuitive Surgical, Inc., 995 F.3d 839, 851 (11th

Cir. 2021) (emphasis in original) (quoting Frazier, 387 F.3d at 1261).

26

testimony, see Doc. 392-11 at 2, 4, and the witnesses explained the nature and

scope of their opinions and the basis on which they formed those opinions at

their respective depositions, see generally Docs. 392-7, 392-9, the Court finds

that, even if the FDOC’s disclosure is deficient, it is harmless.

Despite the FDOC’s disclosure, see Doc. 392-1, upon review of Drs.

Greenfield’s and Emanoilidis’s deposition transcripts, and given their

attorney’s clarification that their opinions will be limited to those “derived from

[their] face-to-face interactions with [Plaintiff],” see Docs. 392-7, 392-9, 392-11

at 2, 4, the Court concludes it is not evident that the FDOC intends to elicit

from Drs. Greenfield or Emanoilidis expert opinions beyond their personal

knowledge and observations as informed by their years of experience in their

respective fields. Moreover, given Dr. Emanoilidis’s background and

experience, including his many years working in corrections facilities, he

appears perfectly qualified to offer his opinion about the quality of mental

health care available to inmates at FSP. See Doc. 392-7 at 264-65. Whether his

opinion is subject to debate does not make it inadmissible. The extent to which

any such opinion may be relevant to the issues is best addressed in the context

in which it is offered at trial.

As such, the Court concludes Plaintiff’s motion is due to be denied. To

the extent counsel for the FDOC attempts to elicit expert opinion testimony

27

from these witnesses at trial that are outside the bounds of their personal

experience or knowledge, or beyond the types of opinions a treating physician

may offer, opposing counsel can make appropriate, timely objections. And to

the extent Plaintiff believes the witnesses’ opinions are not “correct” or

questionable, any perceived deficiencies may be explored or highlighted

through “vigorous cross-examination” or the introduction of opposing expert

opinion testimony. Finally, to the extent the FDOC intends to elicit opinion

testimony from Drs. Emanoilidis or Greenfield that would be considered

testimony of a “retained” expert, the Court can make a Daubert ruling in

context at trial.

Accordingly, it is

ORDERED:

1. Plaintiff’s motion to strike the expert report and limit the

testimony of Dr. Aufderheide (Doc. 389) is GRANTED in part and DENIED

in part. The motion is GRANTED to the extent that Dr. Aufderheide may not

offer opinions he reached based solely on the timeline, including that Plaintiff

has had unimpeded access to necessary mental health care in the FDOC, that

Plaintiff “possibly … may be malingering his symptoms,” that Plaintiff may be

self-harming for secondary gain (or for “instrumental” reasons), or that

Plaintiff’s mental health providers have (or appear to have) properly,

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accurately, or appropriately diagnosed him. The motion otherwise is DENIED

substantively (as to timeliness) or as moot (as to Dr. Aufderheide’s purported

opinions regarding Plaintiff’s gang affiliation, Plaintiff’s dangerousness,

Plaintiff’s presumed financial incentive, and prior litigation/settlements).

2. Plaintiff’s motion to limit the testimony of the FDOC’s non-

retained employee experts, McLaughlin and Kirkland (Doc. 390) is GRANTED

in part, DENIED in part, and DEFERRED in part. The motion is

GRANTED to the extent McLaughlin may not offer expert testimony on

matters outside his admitted areas of expertise, that are based purely on

speculation or conjecture without factual foundation, or that are within the

jury’s province, including inmate discipline and security, mental health, ACA

accreditation, or whether CM housing is “constitutional.” The Court DEFERS

a ruling on Plaintiff’s request that McLaughlin be prohibited from testifying

about Plaintiff’s classification status, the privileges he received in CM, or

incident/disciplinary reports Plaintiff incurred. The motion is GRANTED to

the extent that Kirkland may not offer opinion testimony on the FDOC’s

security policies compared to those of other states or that Plaintiff is a violent

person whose CM placement is warranted.

3. The FDOC’s motion to exclude expert testimony of Plaintiff’s

expert Dr. Terry Kupers (Doc. 391) is DENIED.

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4, Plaintiffs motion to limit the testimony of the FDOC’s non-

retained experts Drs. Greenfield and Emanoilidis (Doc. 392) is DENIED.

DONE AND ORDERED at Jacksonville, Florida, this 5th day of July

20238.

J) /

fo Aagee | a OAL.

BRIAN. DAVIS

United States District Judge

Jax-6

C:

Counsel of Record

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