The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JOSEPH LEWIS, JR., ET AL. CIVIL DOCKET
VERSUS 15-318-SDD-RLB
BURL CAIN, ET AL.
RULING
Before the Court is Plaintiffs’ Motion in Limine to Exclude Expert Testimony of
Michael McMunn.1 Defendants have filed an Opposition.2 The Court has considered the
law and the arguments of the parties, and the Motion is DENIED in part and GRANTED
in part for the following reasons.
Michael McMunn, Ph.D., is a nurse practitioner engaged by the Defendants to
provide opinion testimony on LSP’s “clinical care, specialty care, infirmary/in-patient
treatment, sick call, emergency care/ATU, medical leadership, organizational structure,
nursing standard of care, nurse practitioner standard of care, organizational standard of
care, facility design, staff credentialing, and accreditation/standards compliance.”3 His
review and opinion addresses the period of time from 1-1-2019 to the present.4
McMunn is a board-certified Family Nurse Practitioner with certification in
correctional healthcare.5 McMunn has practiced as a registered nurse for approximately
1 Rec. Doc. No. 697.
2 Rec. Doc. No. 708.
3 Rec. Doc. No. 708-2, p. 1.
4 Id.
5 Id.
25 years and as a nurse practitioner for over 20 years.6 He is licensed as a Registered
Nurse in Alabama and as a Registered Nurse and Advanced Practice Registered Nurse
(APRN-NP) in Georgia. He is a Certified Correctional Health Professional - Advanced
(CCHP-A) by the National Commission on Correctional Healthcare (NCCHC) and has
practiced in correctional healthcare for approximately 20 years.7 He has provided opinion
testimony on the “standard of care” in numerous state and federal courts.8
Opinion testimony is admissible under the Federal Rules of Evidence, if: (1) the
witness is qualified as an expert by knowledge, skill, experience, training, or education;
(2) the expert’s reasoning or methodology underlying the testimony is sufficiently reliable;
and (3) the testimony is relevant.9 The party offering expert testimony is not required to
establish the correctness of the opinion; rather, the proponent of the opinion testimony
bears the burden of establishing “by a preponderance of the evidence that the testimony
is reliable.”10 “Both the determination of reliability itself and the factors taken into account
are left to the discretion of the district court consistent with its gatekeeping function under
Fed. R. Evid. 702.”11
The gatekeeping function is of less importance in a bench trial. In Gibbs v. Gibbs,
the Fifth Circuit noted that “[m]ost of the safeguards provided for in Daubert are not as
essential in a case such as this where a district judge sits as the trier of fact in place of a
jury.”12 The purpose of the Court’s gatekeeping function required by Daubert is “to ensure
6 Id.
7 Id.
8 Id. at pp. 4–6.
9 Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
10 Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th Cir. 1998), cert. denied, 526 U.S. 1064
(1999).
11 Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000); Ricks v. City of Alexandria, 2014 WL 4274144, at *8
(W.D. La. 2014).
12 210 F.3d 491, 500 (5th Cir. 2000).
that only reliable and relevant expert testimony is presented to the jury.”13 However, even
though the risk of juror confusion is not a concern, the integrity of the judicial process and
considerations of judicial economy require that untestable opinion testimony be excluded.
Against this backdrop, the Court turns to Plaintiffs’ arguments for complete or
alternatively partial exclusion of McMunn’s opinions.
I. The Standard of Care Opinions
Plaintiffs do not challenge Dr. McMunn’s qualifications to opine regarding the
standard of care in correctional medicine.14 Plaintiffs challenge McMunn’s standard of
care opinions as unsubstantiated and unreliable. Plaintiffs argue that McMunn’s opinions
are unreliable because they are not supported by sufficient facts and data. Plaintiffs
contend McMunn reviewed only 23 of the 60 charts in Plaintiffs’ experts’ sample and was
only on-site at LSP for 2 days. McMunn interviewed providers and observed medical care
delivery while on site. He also interviewed administrators at DOC headquarters, where
he spent the third day of his site visit. Plaintiffs point out that McMunn “took no notes of
any of his interviews, observations, onsite document reviews, or onsite chart reviews.”15
Plaintiffs maintain that the reliability of his opinion that “[h]ealthcare services provided met
the standard of care for a correctional setting. No systemic or practitioner indifference to
any serious medical need was noted,”16 cannot be tested or adequately assessed. In
13 Rushing v. Kansas City Southern Ry. Co,, 185 F.3d 496, 506 (5th Cir.1999) (superseded on other
grounds) (citing Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 590–93, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993)).
14 Plaintiffs challenge McMunn’s qualifications in prison administration and argue he lacks qualifications to
opine on the adequacy of the leadership and organizational structure, such as credentialing and mortality
reviews, in addition to the quality improvement program. This will be addressed infra.
15 Rec. Doc. 697-1, p. 6.
16 Id. at p. 5.
short, Plaintiffs argue that there is no demonstrable or reliable connection between the
data he reviewed and gathered and his opinions.17
McMunn reviewed three unidentified patient charts while on-site at LSP. Plaintiffs
argue that they “have no way to verify what the records he examined actually showed
and thus cannot refute, or even assess Dr. McMunn’s determination that the standard of
care was met in these charts.”18 They point out that “McMunn did not take any notes of
the over 50 health care encounters he claimed to observe during his site visit, let alone
identify them, such that Plaintiffs could review what occurred.”19 Plaintiffs understandably
cry foul at their inability to test or probe the bases for his opinions since he made no notes
or recordings of his on-site observations and interviews, although he did support his report
with “57 pages of notes documenting his chart reviews.”20 According to Plaintiffs,
McMunn’s own deposition testimony reveals that “he does not know what he reviewed or
who he spoke to. He cannot recall the names of the three unidentified patients whose
charts he reviewed. He cannot remember names of many of the staff he met with.”21
Defendants maintain that McMunn’s site visits simply confirmed the opinions he
reached from his detailed chart review of 23 patients and LSP’s written policies and
procedures. According to Defendants, “[t]he site visit enabled Dr. McMunn to confirm
opinions that he developed upon review of the medical charts selected by Plaintiffs’
experts and LSP policies and procedures.”22 Defendants maintain that “the chart reviews
[are] the primary basis for his opinions“ and that “Dr. McMunn’s opinions are based almost
17 Id. at p. 1–2.
18 Id. at p. 10.
19 Id.
20 Rec. Doc. No. 708, p. 2.
21 Rec. Doc. No. 697-1, p. 10 (citing to McMunn deposition excerpts at 66:3-5; 44:14-17; 46:20-22).
22 Rec. Doc. No. 708, p. 2.
exclusively upon his review of the medical charts and LSP’s policies and procedures.”23
In short, Defendants place little emphasis on the undocumented site visits. Rather,
Defendants maintain that the primary basis for McMunn’s opinions are the 23 charts he
reviewed and the LSP policies and procedures.
A reading of McMunn’s report reveals that he reviewed the areas of constitutional
inadequacies found by the Court and concludes that the deficiencies have been
addressed and resolved by LSP. He concludes “based on his experience” that the
standard of care is met in all areas found deficient by the Court.
The lack of data and recorded observations is problematic in terms of testing his
opinions for reliability. For example, McMunn concludes that “access to specialty care
has been prompt, consistent, and certainly meets the standard of care.”24 He comes to
that opinion having reviewed the “23 plaintiff-selected charts and the 3 [unidentified]
charts [he] personally selected [and] a thorough review of the referral process, procedures
and backlogs.”25 He does not drill down to the backlogs or other data to quantify the
number specialty consults ordered, the time or delays for completion, the actual
completion date or any evidence of follow up on specialist recommendations or orders.
This lack of empirical data is troublesome. The oblique reference to having reviewed “the
referral process, procedures and backlogs” is conclusory and unspecific and hardly
provides a transparent verifiable basis for his conclusion.
Finally, Plaintiffs contend McMunn failed to apply an objective “standard of care”
and instead determined whether the standard of care was observed based solely on his
23 Id. at 6.
24 Rec. Doc. No. 708-2, at p. 16.
25 Id.
experience and education. Plaintiffs argue that his “personal opinions, absent any
objective standards, are insufficient bases for expert opinion.”26 McMunn’s opinions paint
with a broad brush and are sweeping generalizations of the standard of care. However,
Plaintiff’s do not challenge his qualifications to opine on the standard of care in a
correctional setting. The gravamen of his opinions is that LSP has made changes that
address the constitutional deficiencies and inadequacies found by the Court, which
changes have, in McMunn’s opinion, brought the level of care up to the standards
expected in correctional medicine. This testimony will be helpful to the Court as the trier
of fact.
As with Dr. Thomas, Defendants’ medical expert in the liability phase, McMunn’s
opinions are in many instances dogmatic expressions of opinion premised on unverifiable
observations. However, since this matter is set for a bench trial, the Court is the trier of
fact, and jury confusion is not a consideration. In the context of a bench trial, vigorous
and skillful cross examination serves as an adequate safeguard against shaky opinion
testimony.
In this case, the adversarial process, including cross-examination, the testimony
and opinions of Plaintiffs’ experts, and a site visit by the Court - if called for - provide an
adequate means to test the reliability McMunn’s opinions. The Court will permit Dr.
McMunn to testify about the standard of care in the specific areas that the Court found to
be constitutionally infirm. The Court will accord the weight that is appropriate under the
circumstances.
26 Rec. Doc. No. 697-1, p. 12.
II. The Medical Administration Opinions
McMunn addresses “Medical Leadership and Organizational Structure” in the
areas of Mortality Review, Medical Department Management, Peer Reviews, Quality
Improvement Activities and Credentialing.27 Plaintiffs argue that “Dr. McMunn is not
qualified to submit an expert opinion in prison administration, and thus should not be able
to opine on the adequacy of the leadership and organizational structure, such as
credentialing and mortality reviews, in addition to the quality improvement program.”28
Defendants do not address McMunn’s qualifications to opine in areas of medical
leadership and organizational structure. Considering McMunn’s report and his CV, the
Court notes that McMunn states he “currently devotes a significant portion of [his]
professional time to active clinical practice in eight correctional facilities (seven small to
medium size county jails and one state facility). Census in these facilities ranges from 25-
350 inmates,” and he has “provided direct clinical services in 50 distinct correctional
facilities over the course of [his] career.”29 McMunn was the “Clinic Director” at the Bridge
Institute in Georgia for less than a year in 2001-2002.30 He described his duties at all
Georgia facilities that he contracts with as “[p]rimarily to fill clinical gaps when nurse
practitioners and doctors would go on leave or get fired or whatever happened,” and,
although he provided administrative support, he “was not contracted to do
administrative.”31 He testified that he gained experience formulating policies and practices
at the Bridge Institute, which was opened in response to a memorandum agreement
27 Rec. Doc. No. 708-2, p. 24–26.
28 Rec. Doc. No. 697-1, p. 17.
29 Rec. Doc. No. 708-2, p. 1–2.
30 Id. at p. 56.
31 Rec. Doc. No. 697-2, p. 23
between the Federal Government and the Georgia Department of Juvenile Justice.32 His
responsibilities included staffing and organizational design.33 Beyond what the Court
gleaned from McMunn’s deposition, Defendants provided no information regarding the
scope and extent of any of McMunn’s administrative, management or organizational
development experience. The Court finds that the majority of McMunn’s experience is in
the direct delivery of clinical care. The Defendants point to no education, skill, training, or
experience that equips McMunn to opine in the area of Medical Leadership and
Organizational Structure. Accordingly, opinion testimony from Dr. McMunn will be
excluded in this area.
III. Quality Improvement Program
In his report, McMunn states that he “personally reviewed all Quality Improvement
activity from 1-1-19 to present. The scope and complexity of the reviews is significantly
improved,” and he concludes that “[s]tandard of care is met.”34 Defendants submit that
“[d]ocuments he relied upon were produced with his supporting materials.”35 According to
McMunn’s deposition, he reviewed minutes of CQI meetings maintained by Nurse Stickell
and the CQI documents produced in discovery, and he “saw three examples where they
implemented the learning concepts.”36 Plaintiffs argue that McMunn could not “recall a
single one of his three examples of how the program utilizes and implements learned
concepts, nor did he take notes of these examples.”37 Defendants counter that McMunn
32 Id. at 36-37
33 Id. at 37.
34 Rec. Doc. No. 708-2, p. 25.
35 Rec. Doc. No. 708, p. 8.
36 Rec. Doc. No. 697-2, pp. 137-139
37 Rec. Doc. No. 697-1, p. 16. This assertion is found in McMunn’s deposition. Rec. Doc. No. 697-2, pp.
137-139.
is qualified by virtue of his “NCCHC certifications [which] include assessments of a quality
improvement program.”38
The Court will allow McMunn to testify to what he gleaned from his review of the
CQI records and his opinions about LSP’s CQI’s program.
IV. COVID-19 Impact and Response
Plaintiffs move to exclude opinions about how LSP’s medical department was
impacted by and responded to the COVID-19 pandemic. The Court finds that McMunn’s
opinions regarding the impact and response to COVID-19 at LSP are unsubstantiated by
any facts or direct data or observations and thus will be excluded. However, as a
healthcare provider in correctional medicine, McMunn may give fact testimony about the
impact of COVID-19 generally on healthcare delivery.
V. Nursing Shortage
Plaintiffs move to exclude McMunn’s opinion testimony that “[t]he nursing shortage
is an external factor that LSP does not control. However, it must be considered when
addressing availability of nurses and staffing patterns.”39 The Court finds that as a
healthcare provider in correctional medicine, McMunn can provide fact testimony about
nursing shortages, generally. However, opinion testimony about the impact of nursing
shortages “at rural correctional facilities and those with higher security levels”40 is
unsubstantiated by facts or data and shall be excluded.
38 Rec. Doc. No. 708, p. 8.
39 Rec. Doc. No. 697-1, p. 16.
40 Rec. Doc. 708-2, p. 53.
Vi. Conclusion
In summary, the Court will permit Dr. McMunn to testify about the standard of care
in the specific areas that the Court found to be constitutionally infirm. McMunn shall not
be permitted to give opinion testimony regarding Medical Leadership or Organizational
Structure. McMunn may give fact testimony about the impact of COVID-19 generally on
healthcare delivery. McMunn may provide fact testimony about nursing shortages
generally but may not opine as to the effect or impact on LSP particularly. McMunn may
opine regarding LSP’s Quality Improvement reviews.
Plaintiffs’ Motion’ is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on June 1, 2022.
Mahi M Mick
CHIEF JUDGE’SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
41 Rec. Doc. No. 697.