Labouliere v. Our Lady of the Lake Foundation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

KATRINA RIVERS LABOULIERE, CIVIL ACTION NO: 16-785

individually and on behalf of the Estate of

KATHERINE SMITH

versus JUDGE SHELLY D. DICK

OUR LADY OF THE LAKE HOSPITAL, MAGISTRATE WILDER-DOOMES

INC.

RULING

Before the Court is a Motion in Limine1 by the Defendant, Our Lady of the

Lake Hospital, Inc. (“OLOL”), to exclude Plaintiff’s expert witness Jody N. Prysock,

M.S., C.I. The Motion is opposed by the Plaintiff, Katrina Rivers Labouliere, who is

proceeding on behalf of her deceased mother, Katherine Smith.2 For the reasons

which follow, the Motion3 shall be GRANTED in part and DENIED in part.

I. PROCEDURAL AND FACTUAL BACKGROUND

Katherine Smith, who was legally deaf, received in-patient care at OLOL.

Plaintiff alleges that the hospital “failed to provide Ms. Smith with the necessary

interpretation services, and thereby failed to provide her with communication that

was equal to that provided to hearing persons in a medical setting.”4

Plaintiff brings claims of disability discrimination under the under Section

504 of the Rehabilitation Act of 1973 (“RA”)5 and Section 1557 of the Patient

1 Rec. Doc. 94.

2 Rec. Doc. 107.

3 Rec. Doc. 94.

4 Rec. Doc. 74, ¶ 1.

5 29 U.S.C. § 794; Rec. Doc. 74, ¶ 4.

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Protection and Affordable Care Act (“ACA”)6 and a companion state law claim

under La. R.S. § 51:2231.7

Plaintiffs retained and identified Jody N. Prysock, M.S., C.I. (“Prysock”) as

an expert witness. Defendants move to exclude Prysock under Daubert.8

Defendant maintains that Prysock is not qualified to render the opinions sought to

be offered and that her opinions are neither reliable nor relevant.

Plaintiff seeks to tender Prysock to give opinion testimony in the following

fields:

“Deaf communication; Deaf culture; American Sign

Language; Interpretation between English and American Sign

Language; VRI; Policies, practices, and procedures for

accommodating deaf individuals and communicating with

deaf individuals in medical settings.”9

In her Report,10 Prysock explains that the “Objective” of her engagement

and proposed opinion is to:

1. “Provide a general framework of models for Deafness. . .”

2. “Evaluate and determine any deficiencies in policies

related to the Deaf and hard of hearing at Our Lady of the

Lake Hospital”

3. “ascertain OLOL’s policy is aligned with national standards

as they pertain to the provision of effective

communication”

4. “assess if these practices are systematically implemented

and sustained”

5. “address if current policies and procedures to reflect in the

best practices and meet standards as set forth by The

Joint Commission and the centers from Medicaid and

Medicare”11

6 42 USC § 18116; Rec. Doc. 74, ¶ 4.

7 LA. REV. STAT. art. 51:2231.

8 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

9 Plaintiff’s Preliminary Expert Witness Disclosures. Rec Doc. 94-2.

10 Rec. Doc. 94-3.

11 See Id.

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Prysock formulated her opinions after conducting a site inspection of the

hospital and interviewing OLOL administrators. By her Report12 she observes and

opines that:

 “responses to my questions vague and did not reflect

specific steps to be taken when caring for deaf or hard of

hearing patients or families”

 the following communication methods “would not provide

effective communication for many or most deaf or hard of

hearing patients as English is not their first language”:

o Communication cards

o Video Remote Interpretation (“VRI”)

o White board and pen and paper

 The response by OLOL administrators interviewed that

Communication in E/R “whatever works best” is

inadequate and suggests administrators are unfamiliar

with the auxiliary aids and devices that should be made

available to a deaf and hard of hearing patients.

Plaintiff seeks to have Prysock offer opinions regarding OLOL’s policies and

procedures for communicating with Deaf and hard of hearing patients. As part of

her analysis, Prysock redlined and critiqued OLOL’s policies and procedures for

communicating with deaf patients. She ultimately opines that “[h]iring qualified

interpreters is the only way hospitals can implement safe measures to prevent

medical errors and adverse events”13 Regarding the use of qualified interpreters,

Prysock opines that:

 Americans with Disabilities Act and Title VI (sic) “requires

that hospitals provide interpreting services to Limited

English Proficient (LEP) patients (which may include Deaf

patients) and those with disabilities that affect their ability

to communicate.”

12 Rec. Doc. 94-3.

13 Id.

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 “The Centers for Medicare and Medicaid (CMS) has (sic)

initiated a requirement that all its beneficiaries have

access to interpreters. Hiring qualified interpreters is the

only way hospitals can implement safe measures to

prevent medical errors and adverse events.

 The use of qualified Sign language interpreters, which may

include Certified Deaf Interpreters, are imperative in

medical and healthcare settings”.14

II. LAW AND ANALYSIS

Federal Rule of Evidence 702 and Daubert15 and its progeny are well known

to the Court, and as demonstrated by the briefing, to the counsel for the parties as

well. Federal Rule of Evidence 702 provides that:

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.16

A. Qualification by knowledge, skill, experience, training, or education

Plaintiff argues that “Ms. Prysock is qualified to serve as an expert regarding

communicating with Deaf individuals in a medical setting” because

Ms. Prysock has been certified by the National Registry of

Interpreters for the Deaf for nearly twenty years. She has

worked as part of the Deaf and Hard of Hearing program at

two hospitals in New York. Ms. Prysock has served as an

adjunct professor at the CUNY School of Professional studies

teaching a course regarding cultural aspects of disability.6

She is a founding member of the Healthcare Communication

Access Committee. Ms. Prysock was on the Board of

Directors for the National Council on Interpreting in

14 Rec. Doc. 94-3.

15 Daubert, 509 U.S. 579.

16 FED. R. EVID. 702.

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Healthcare. She served as a Chair on the Healthcare Access

Expert Committee for the National Association of the Deaf.9

Ms. Prysock co-authored a guide for effective communication

in healthcare. Finally, Ms. Prysock has worked as a

trainer/consultant on interpreting in medical settings and

caring for Deaf and hard of hearing patients.17

By the plain language of FRE 702 an expert may be qualified by “scientific,

technical, or other specialized knowledge” if the proposed opinion testimony will

“help the trier of fact to understand the evidence or to determine a fact in issue”

and “the testimony is based on sufficient facts or data” and “the testimony is the

product of reliable principles and methods” and “the expert has reliably applied the

principles and methods to the facts of the case”.18

Many Courts analyze the “knowledge, skill, experience, training, or

education” requirement of Rule 702 as a threshold inquiry.19 This Court will

evaluate the “knowledge, skill, experience, training, or education” requirement as

a component of the other four requirements for admissibility; namely, will the

opinion testimony assist the trier of fact, is it derived from or supported by sufficient

facts or data, were the principles and methods used reliable and were they reliably

applied. In short, the relevance and reliability of the proposed opinions must be

evaluated in conjunction with the professed qualifications of the proffered expert.

17 Rec. Doc. 107 p. 5 (footnotes, citations, and emphasis omitted).

18 FED. R. EVID. 702.

19 “The threshold inquiry is whether the expert possesses the requisite qualifications to render

opinion on a particular subject matter.” Hunt v. McNeil Consumer Healthcare, 297 F.R.D. 268, 272

(E.D. La. 2014), citing Wagoner v. Exxon Mobil Corp., 813 F.Supp.2d 771, 799 (E.D. La. 2011);

see also Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999) (“A district court should refuse to allow

an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or

on a given subject.”). Having defined the permissible scope of the expert's testimony, a court next

inquires whether the opinions are reliable and relevant. See United States v. Valencia, 600 F.3d

389, 424 (5th Cir. 2010).

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B. Relevance Inquiry: Assistance to the Trier of Fact

In this case, the question considering this factor the question is: Is Prysock

qualified to serve as an expert regarding communicating with deaf individuals in a

medical setting and will her opinions assist the jury? Among other things,20 Plaintiff

points principally to Prysock’s experience as the Manager of the Deaf and Hard of

Hearing Program, and the Director of Language, Cultural and Disability Services,

at NYUMC.21

FRE Rule 702’s requirement that evidence or testimony “assist the trier of

fact to understand the evidence or to determine a fact in issue” goes primarily to

relevance.22 Defendant argues that the ACA and the RA require evidence of actual

knowledge and therefore opinion testimony that goes to best practices is

tantamount to a constructive knowledge standard and therefore irrelevant.23 The

Plaintiff argues in opposition that the Fifth Circuit has not adopted a specific

standard of intent and instead focused on the “widely accepted principal that intent

requires that the defendant at least have actual notice of a violation.”24 The

20 Plaintiff submits that “Ms. Prysock has been certified by the National Registry of Interpreters for

the Deaf for nearly twenty years. She has worked as part of the Deaf and Hard of Hearing program

at two hospitals in New York. Ms. Prysock has served as an adjunct professor at the CUNY School

of Professional studies teaching a course regarding cultural aspects of disability. She is a founding

member of the Healthcare Communication Access Committee. Ms. Prysock was on the Board of

Directors for the National Council on Interpreting in Healthcare. She served as a Chair on the

Healthcare Access Expert Committee for the National Association of the Deaf. Ms. Prysock co-

authored a guide for effective communication in healthcare. Finally, Ms. Prysock has worked as a

trainer/consultant on interpreting in medical settings and caring for Deaf and hard of hearing

patients.” Rec. Doc. 107 p. 5 (citations omitted).

21 Id. p. 6.

22 “This condition goes primarily to relevance.” Daubert, 509 U.S. at 591; Mathis v. Exxon Corp.,

302 F.3d 448, 459–460 (5th Cir. 2002).

23 Rec. Doc. 94-1 p. 13-14.

24 “Though intent is a necessary element of a damages claim, we have previously declined to adopt

a specific standard of intent.” See, Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App'x 180,

184 (5th Cir. 2015) (per curiam) (stating that “[w]e did not define what we meant by intent in Delano–

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applicable legal standard is a matter for the jury instructions or a Rule 50 Motion.

Whether OLOL’s deaf patient communication practices are effective is a factual

question and therefore the relevance factor is satisfied. Defendant concedes that

“in order to avoid discrimination [the] accommodation of a person’s disability need

not be ideal; instead, it need only be reasonable and effective.”25 Additionally, the

Court finds that deaf communication practices are outside the general

understanding of the average hearing juror; hence, testimony regarding deaf

communication in a medical setting will assist the trier of fact. The Court also finds

that by virtue of her experience,26 Prysock is qualified to provide testimony

regarding effective deaf communication in a medical setting.

Defendant further argues that testimony “regarding deaf culture and

nuances/norms within the deaf community are likewise irrelevant because they will

not assist the trier of fact.”27 The Court finds that deaf culture is likewise outside of

the general knowledge and understanding of the average hearing juror and an

understanding of the cultural norms and particularities within the deaf community

will be of assistance to the jury in its factual inquiries.

The Court finds however, that Prysock is not qualified by knowledge, skill,

experience, training, or education to opine as to legal or regulatory requirements

of the Americans with Disabilities Act or the Centers for Medicare and Medicaid

Pyle”). More recently, the Circuit again did not reach the issue of what proof of “intent” requires.

“We need not delineate the precise contours [of intent] in this case.” Miraglia v. Board of

Supervisors of Louisiana State Museum, 901 F.3d 565, 574-5 (5th Cir. 2018).

25 Rec. Doc. 94-1, citing, Arce v. Louisiana, 226 F. Supp. 3d 643, 651 (E.D. La. 2016) (citation

omitted)., citing Wells v. Thaler, 460 F. App’x 303, 313 (5th Cir. 2012).

26 See Rec. Doc. 107 p. 5 (footnotes, citations, and emphasis omitted).

27 Rec. Doc. 94-1 p. 14.

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(CMS). Any opinion testimony by Prysock regarding the legal and or regulatory

requirements of the RA, ACA, ADA and CMS28 regulations shall be excluded at

trial.

C. Reliability

1. Sufficiency of Facts or Data Relied Upon

Prysock formulated her opinions after conducting a site inspection of the

hospital, interviewing OLOL administrators and evaluating OLOL’s written policies

and procedure pertaining to communicating with deaf patents.29 Defendant points

out that “she has not read any depositions in this case, never interviewed or even

met the Ms. Smith, and has not reviewed any medical records.”30 The Court finds

the sufficiency of the facts and data relied upon by Prysock to be less than

circumspect. However, the Court is persuaded that this is “soft science” and as

argued by Plaintiff Prysock has “real world experience . . . developing and

implementing policies and procedures to ensure that hospital staff is providing

Deaf patients with equal access to communication.”31 The Fifth Circuit has

recognized the “inherent methodological limitations in all social-science

research.”32 The Court finds that the facts and data relied upon together with

Prysock’s experience are sufficiently reliable.

28 Specific reference is made to Prysock’s report which opines that: the Americans with Disabilities

Act and Title VI [sic] “requires that hospitals provide interpreting services to Limited English

Proficient (LEP) patients (which may include Deaf patients) and those with disabilities that affect

their ability to communicate”, and “The Centers for Medicare and Medicaid (CMS) has [sic] initiated

a requirement that all its beneficiaries have access to interpreters.” Rec. Doc. 94-3 p. 11.

29 Rec. Doc. 94-3, 107 and 107-2.

30 Rec. Doc. 94-1, citing Exhibit C, pp. 84:20-85:9; p. 113:2-114:13.

31 Rec. Doc. 107.

32 U.S. v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006), citing Jenson v. Eveleth Taconite Co., 130

F.3d 1287, 1297 (8th Cir. 1997).

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2. The Reliability of the Methodology Used

Defendant argues that Prysock “employed no methodology other than her

own beliefs.”33 Plaintiff counters that her “methodology is reliable because she

bases her testimony on her professional and real-world experiences.”34 What was

done in this case is: Prysock interviewed OLOL staff and administrators, made

observations at a site visit, and evaluated OLOL written policies and procedures

regarding communication with deaf patients; she then compared and contrasted

that data with what she considers to be best practices based on her professional

experience and knowledge. The Court finds that Prysock is qualified by skill,

training and experience to opine on best practices for communicating with deaf

persons in medical settings, and that the methodology used, while not scientific or

technical, is nonetheless reliable under facts of this case.

33 Rec. Doc. 94-1 p. 19.

34 Rec. Doc. 107 p. 10.

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III. CONCLUSION

For the foregoing reasons, the Motion in Limine35 to exclude testimony of

Jody N. Prysock is GRANTED in part and DENIED in part. The testimony of Jody

N. Prysock shall be limited and she shall not be permitted to provide opinion

testimony on matters of law, specifically, the legal requirements under Section 504

of the Rehabilitation Act of 1973 (“RA”), Section 1557 of the Patient Protection and

Affordable Care Act (“ACA”), and analogous provisions of the Americans with

Disabilities Act.

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana the 20th day of March, 2020.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

35 Rec. Doc. 94.

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