Moore v. LaSalle Corrections Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

ERIE MOORE, JR., ET AL. CIVIL ACTION NO. 3:16-CV-01007

VERSUS JUDGE TERRY A. DOUGHTY

LASALLE CORRECTIONS, INC., MAG. JUDGE KAREN L. HAYES

ET AL.

RULING

Pending here is the Second Motion to Strike filed by Defendants Archie Altman; Sgt. Roy

Brown; Reginald Curley; Jody Foster; Alton Hale; Warden Ray Hanson; Sgt. Gerald Hardwell;

Sgt. Kenneth Hart; William Mitchell; Sgt. Duan Rosenthal; Jeremy Runner; Danielle Walker; Sgt.

Reginald Williams; LaSalle Management Co., LLC; Richwood Correctional Center, LLC;

Tommy Crowson; and City of Monroe (collectively “Defendants”) [Doc. No. 333]. Plaintiffs Erie

Moore, Jr., Tiffany Robinson, and Tamara Robinson (collectively “Plaintiffs”) have filed an

opposition. [Doc. No. 345]. Defendants have filed a reply to the opposition [Doc. No. 347].

For the following reasons, the Second Motion to Strike [Doc. No. 333] is GRANTED IN

PART and DENIED IN PART.

I. FACTS AND PROCEDURAL HISTORY

This lawsuit follows the death of two detainees at the Richwood Correctional Center

(“RCC”), a private detention center located in Ouachita Parish, Louisiana. RCC is owned and

operated by LaSalle Management Company, LLC (“LaSalle”) and/or Richwood Correctional

Center, LLC (“Richwood”), related private entities.

At the time of the incident, Moore was being detained at RCC after having been arrested

by Monroe Police Department (“MPD”) Lieutenant (then-Corporal) Tommy Crowson (“Officer

Crowson”) for disturbing the peace on October 12, 2015. The next day, October 13, 2015,

Moore was involved in an altercation with another detainee, Vernon White (“White”). White

died shortly after the altercation. Moore was forcibly removed from the holding cell after the

altercation occurred. Soon thereafter, Moore became unconscious. He died on November 14,

2015, without ever having regained consciousness.

Plaintiffs are the children and heirs of Moore. In their original Complaint, filed July 8,

2016, Plaintiffs alleged that the death of their father was caused by multiple Defendants. [Doc.

No. 1]. On December 5, 2017, an Amended Complaint was filed which added new Defendants

and continued the previous allegations. [Doc. No. 63]. On April 11, 2019, the Third Amended

Complaint was filed, which added more Defendants to the suit, repeated many of the original

claims, and made new claims. [Doc. No. 140].

After Plaintiffs filed a Motion for Partial Summary Judgment [Doc. No. 230], Defendants

filed a Motion to Strike [Doc. No. 282], directed toward several exhibits filed by Plaintiffs in

support of their motion. That Motion to Strike has been addressed in a separate Ruling.

Defendants, either together or in various combinations, have also filed several pending

Motions for Summary Judgment, to which Plaintiffs filed Oppositions. Defendants then filed the

pending Second Motion to Strike [Doc. No. 333], which is directed toward several of the same

exhibits that their first motion to strike addressed, as well as several additional exhibits. In the

pending motion, Defendants seek to strike the following exhibits attached to Plaintiffs’

Oppositions to Defendants’ Motions for Summary Judgment [Doc. Nos. 299, 300, 301, 302 and

303]:

1. Reports of Deputy Wells and Deputy Murphy,

Exhibits 61 and 62;

2. Exhibit 75 - Louisiana Administration Code, Title

22, Part III, Subpart 2. Minimum Jail Standards

3. Exhibit 158 - Dr. John T. Owings’ Report;

4. Exhibit 163 - Kenny Sanders’ Report;

5. Exhibit 169 - DOC records on Erie Moore;

6. Exhibit 180 - Hanser’s Return;

7. Exhibits 188 and 194 - Declarations of Willie

Woodard and Yolanda Jackson dated April 27, 2020;

8. Exhibit 189 - Declaration of Col. Rogers dated April

27, 2020;

9. Exhibit KS – Deposition of Kenny Sanders; and

10. Exhibit 190 - Declaration of Kenny Sanders with

attachments dated April 27, 2020.

Defendants contend that the above listed exhibits, in whole or in part, are inadmissible

under the dictates of Rules 26 and 56 of the Federal Rules of Civil Procedure, the Order of the

Court, and/or numerous rules of the Federal Rules of Evidence. Defendants further contend that,

in the event the report, declaration, and deposition testimony of Kenny Sanders and the declaration

of Col. Rogers are not stricken in their entirety, then all of the opinions expressed therein should

be stricken. Plaintiffs respond that the exhibits are admissible under the above cited rules.

The issues are fully briefed, and the Court is prepared to rule.

II. LAW AND ANALYSIS

A. Legal Standards

Under FED. R. CIV. P. 56(c)(2), “[a] party may object that the material cited to support or

dispute a fact cannot be presented in a form that would be admissible in evidence.”1 Hearsay

1 To the extent that the parties cite the Court to Federal Rule of Civil Procedure 12(f), governing motion to

evidence and unsworn documents that cannot be presented in a form that would

be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John

W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

However, “it is not dispositive whether the [disputed materials] in their current

form are admissible in evidence. At the summary judgment stage, materials cited to support or

dispute a fact need only be capable of being ‘presented in a form that would

be admissible in evidence.’” LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534

(5th Cir. 2016) (quoting FED. R. CIV. P. 56(c)(2) (emphasis added)).

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of consequence in determining the action.” FED.

R. EVID. 401. Generally, hearsay is not admissible unless stated otherwise by a federal statute, the

Federal Rules of Evidence, or other rules of the Supreme Court. See FED. R. EVID. 802. “Hearsay”

is a statement that: “(1) the declarant does not make while testifying at the current trial or hearing;

and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” FED.

R. EVID. 801(c).

strike pleadings, that rule is inapplicable. Rule 12(f) authorizes the Court to strike “from any pleading an insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Evidence submitted

in support of a motion for summary judgment does not constitute a pleading, and, therefore, Rule 12(f) is

inapplicable. See Worldwide Subsidy Grp., LLC v. Worldwide Pants Inc., 729 F. App'x 625, 625-26 (9th Cir.

2018) (“WSG filed a Rule 12(f) motion to strike which is inapplicable to a motion for summary

judgment.”); Pilgrim v. Trs. of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997), abrogated on other grounds

by Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002); Claridy v. The City of Lake City, No. 3:13-CV-558-J-

39PDB, 2014 WL 12656605, at *1 (M.D. Fla. Oct. 24, 2014) (“As a threshold matter, a motion to strike is not the

appropriate vehicle for challenging the admissibility of evidence submitted in connection with a motion for

summary judgment.”); Shah v. Chertoff, 2007 WL 2948362 at *5 (N.D. Tex. Oct. 10, 2007) (“Rule 12(f) ... does not

apply to the instant situation because evidence submitted in support of a Rule 56 motion for summary judgment is

not considered a motion or pleading for purposes of Rule 12.”); Jackim v. City of Brooklyn, No. 1:05 CV 1678, 2006

WL 8446885, at *1 (N.D. Ohio July 18, 2006). (“While some courts have employed Federal Rule of Civil Procedure

12(f) to strike non-pleading materials – e.g., affidavits, or portions thereof – there is no basis in the Federal Rules for

doing so.”) (citing McLaughlin v. Copeland, 435 F. Supp. 513 (D. Md. 1977)).

B. Analysis

1. Reports of Deputy Wells and Deputy Murphy, Exhibits 61 and 62

Defendants object to the reports prepared by Deputy Wells and Deputy Murphy on the

basis they are hearsay, contain hearsay within hearsay, and are unsworn.

This objection has been addressed by the Court in the Ruling on the first Motion to Strike

[Doc. No. 282]. Accordingly, for the same reasons set forth in that Ruling, to the extent that

Defendants’ Second Motion to Strike seeks the exclusion of those portions of the report that

provide the time the deputies arrived at RCC, left RCC, arrived at OCC, and arrived at the hospital,

the Motion is DENIED. To all other extents, the Motion is GRANTED.

2. Louisiana Administrative Code, Minimum Jail Standards, Exhibit 75

Defendants argue that the Louisiana Administration Code, Title 22, Part III, Subpart 2,

Minimum Jail Standards, is not relevant or admissible and should be stricken from evidence.

Defendants assert that the Minimum Jail Standards are nothing more than guidelines. Furthermore,

they are guidelines for the planning, administration, and construction of parish jails; whereas RCC

is not a parish jail. Thus, whatever may be found in the Minimum Jail Standards is irrelevant to

any issue before the Court. Defendants contend, accordingly, that Exhibit 75, as well as any

reference to the Minimum Jail Standards by any witness or in any pleading should be stricken and

not considered.

Plaintiffs argue that, while the Minimum Jail Standards apply to parish jails, RCC was

acting as a city jail with the same responsibilities. Plaintiffs further argue that the Minimum Jail

Standards are relevant to establishing the prevailing practice at the time, if nothing else, for state

negligence claims.

The introduction to 22 LA ADC Pt III, § 2503, states:

The purpose of these standards is to provide a reasonable guideline

for use by persons responsible for the planning, administration and

construction of parish jails in Louisiana. They are intended to reflect

the minimum requirements which comply with court orders and

protect the guaranteed rights of inmates in custody. The criteria were

derived from court decisions, Louisiana state statutes, codes and

regulations, and standards developed by organizations in the

criminal justice field. The items generally avoid specific numerical

absolutes so as to be useful to jails of all sizes and populations.

(emphasis added)

Although the Minimum Jail Standards are nothing more than guidelines, the Court finds

they are not inadmissible solely on that basis. While it is clear that internal policies and advisory

national or state standards are not determinative of fault and/or the applicable standard of care, the

Court believes that such policies and standards may be probative as to the controlling standard of

care in this case. See Schurman v. Panola-Harrison Electrical Coop., Inc., No. 03-1467, 2006 WL

8456468, (W.D. La. June 6, 2006).

Accordingly, Defendants’ Second Motion to Strike is DENIED as to the Minimum Jail

Standards.

3. Dr. John T. Owings’ Report, Exhibit 158

Defendants object to Dr. Owings’ Report as being hearsay, hearsay within hearsay, and as

being unsworn. Also, the report makes reference to a telephone conversation about a video with

Plaintiffs’ counsel which is not evidence, is hearsay, and is hearsay within hearsay.

This objection has been addressed by the Court in the Ruling on the first Motion to Strike

[Doc. No. 282]. Accordingly, for the same reasons set forth in that Ruling, to the extent

Defendants’ motion seeks to strike that portion of the report mentioning a conversation with

Plaintiffs’ counsel about a video, the motion is GRANTED. To any other extent, the motion is

DENIED. Defendants have not established a valid reason to exclude Dr. Owings’ Report as

summary judgment evidence.

4. Kenny Sanders’ Report, Exhibit 163

Defendants object to the Kenny Sanders’ Report on the basis it is hearsay, hearsay within

hearsay, and unsworn. Plaintiffs respond that expert reports typically contain hearsay information

and that Sanders has accepted and adopted his report in his sworn Declaration, Exhibit 190.

This objection has been addressed by the Court in the Ruling on the first Motion to Strike

[Doc. No. 282]. Accordingly, for the same reasons set forth in that Ruling, the Court DENIES

Defendants’ Motion to strike with regard to the Sanders Report, Exhibit 163, on these grounds.

The Court will address Defendants’ other objections to Sanders’s opinions below.

5. DOC Records on Erie Moore, Exhibit 169

The entirety of Defendants’ argument is:

Plaintiffs make argument based upon records that were apparently

received from the Ouachita Parish District Attorney’s Office and

which include notations allegedly made by a DOC employee.

According to the Plaintiffs, their interpretation of Hodges’ report is

that it conflicts with other, admissible, evidence. The report itself is

hearsay and statements and information found in the report are

nothing more than hearsay within hearsay. Furthermore, testimony

or an affidavit from Hodges would not make the “facts” sought to

be introduced through Hodges’ report admissible. Accordingly,

Exhibit 169, and in particular, page 106, must be stricken.

[Doc. No. 333-1, p. 17].

The entirety of Plaintiffs’ response is:

The Ouachita Parish D.A.’s records can be admitted at trial as a

business record. The statements attributable to Linda Hodges can be

admitted because Linda Hodges is expected to testify at trial.

Hodges verifies the existence of false information being provided

through administrative employees like Hodges that Moore was

found unconscious at RCC around 7pm in his cell. He was found

unconscious. But other officers like Runner, Hardwell, Williams and

Curley contend Moore was conscious and talking around 7pm. That

Moore was found in his cell unconscious contradicts other officers.

The information provided to [the sentence ends here].

[Doc. No. 345, p. 30].

The entirety of Defendants’ reply is:

Plaintiffs argue that because Hodges, the purported recorder of

someone else’s statements in records secured from the D.A.’s office,

can testify at trial about those statements, the documents filed are

admissible. However, Hodge’s recitation of heresay [sic] and/or

double heresay statements found in a report would still be

inadmissible at trial.

[Doc. No. 347, p. 8]

The parties have not made it clear who Linda Hodges is, what her position is, who her

employer is, who gave the information to Hodges, who produced the alleged report, how the parties

came into possession of it, how the District Attorney allegedly came into possession of it, where

it was allegedly kept at the District Attorney’s office, why it wouldn’t be a DOC record, what its

significance is, or how the report was produced. Accordingly, Defendants’ Motion to Strike is

DENIED at this time, although the report will have limited evidentiary value in view of the above.

6. Hanser’s Return, Exhibit 180

Defendants object to certain documents provided by Dr. Robert D. Hanser which he states

are used by him in conducting Crisis Intervention Training (“CIT”) for peace officers and jailers

[Doc. No. 308-4, pp. 48-97]. Defendants contend these documents were apparently secured from

Dr. Hanser and not through any Defendant. Defendants assert the documents have not been

authenticated, no foundation has been laid, and they contain hearsay and hearsay within hearsay.

Accordingly, these documents and any argument made that is based upon these documents should

be stricken and excluded from consideration.

Plaintiffs respond that Dr. Hanser trained Monroe city police officers, including Defendant

Officer Crowson, about suicide prevention during CIT and that Exhibit 180 is a subpoena return

from Dr. Hanser containing many of his training materials. Plaintiffs state that Dr. Hanser is

expected to testify, and the training materials are relevant to show that all officers, including

dispatchers, are taught information about suicide prevention during CIT. Plaintiffs assert the

training materials are not hearsay but are admissible as Dr. Hanser’s business records under FED.

R. EVID. 803(6)-(7). Plaintiffs conclude that proof of training standards are relevant to determine

if Crowson or one of the police dispatchers had a duty to Moore to take him to a hospital instead

of to jail.

The Court concludes these documents can be authenticated by Dr. Hanser and can fall

under the business record exception to the hearsay rule. Additionally, they are relevant in

connection with Dr. Hanser’s expected testimony. Accordingly, Defendants’ Motion to Strike is

DENIED as to Dr. Hanser’s documents.

7. Declarations of Willie Woodard and Yolanda Jackson dated April 27,

2020, Exhibits 188 and 194

Defendants contend that Plaintiffs have submitted the Declarations of Willie Woodard

(“Woodard”) and Yolanda Jackson (“Jackson”) without timely disclosure. Defendants assert that,

in more than four years of extensive written discovery, and in multiple witness lists, Plaintiffs

never disclosed Woodard or Jackson as witnesses. Defendants argue that, pursuant to Rule 26 and

the Court’s Scheduling Order [Doc. 75], the declarations of Woodard and Jackson must be

excluded from consideration in support or in opposition to any Motion for Summary Judgment.

Plaintiffs respond that these witnesses’ potential testimony did not become known to them

until after February 11, 2020. Thus, their existence was unknown until after disclosure deadlines

had expired. Plaintiffs further contend that these witnesses were known to Defendants because

Jackson is a former employee of RCC and Woodard was a trusty at RCC the night of the incidents

in question who was depicted in the cell and hall videos as cleaning LD-7. Plaintiffs state that they

requested the name of the trusty who cleaned LD-7 and who was depicted in the video on August

17, 2018, and that, on October 18, 2018, Defendants indicated that they would provide the

information once the trusty could be identified. However, Defendants never provided the trusty’s

name, without explanation.

Plaintiffs further respond that Jackson came to their attention on February 11, 2020, when

she called Plaintiffs’ attorney’s office after seeing a media story on this case that aired on February

7, 2020, on a Dallas, Texas station. Jackson identified Woodard as the trusty but Plaintiff’s counsel

was unable to arrange a meeting to interview Woodard until around March 2020.

Plaintiffs state that the attestations of Woodard and Jackson have been presented to rebut

and thereby impeach evidence presented by Defendants, who generally contend that no force at all

was used in the Four-Way. Woodard’s Declaration tends to dispute that, given that fresh pepper

spray was on the walls of the Four-Way. Jackson provides testimony that RCC correctional officers

routinely used pepper spray and used the Four-Way for the purpose of “teaching a lesson.”

Plaintiffs argue that their late awareness of Woodard and Jackson, and the rebuttal of Armbruster

and RCC fact witnesses provides substantial justification. Thus, under these unique circumstances,

the Declarations of Woodard and Jackson should not be stricken. Plaintiffs further submit there is

no trial date pending and thus no undue prejudice.

Defendants reply that Plaintiffs have admitted that Jackson was known to be a witness on

February 11, 2020, and Woodard was known to be a witness in March of 2020. Therefore, it was

at those moments in time that Plaintiffs were obligated to supplement their discovery responses

and/or Rule 26 Disclosure and/or their Witness List. Instead, Plaintiffs waited until May 22, 2020

to ambush Defendants with new witnesses and new factual allegations.

Since its adoption, Rule 26(a)(1) has provided:

[A] party must, without awaiting a discovery request, provide to the

other parties ... the name and, if known, the address and telephone

number of each individual likely to have discoverable information—

along with the subjects of that information—that the disclosing party

may use to support its claims or defenses, unless the use would be

solely for impeachment.

FED. R. CIV. P. 26(a)(1)(i); Standley v. Edmonds–Leach, 783 F.3d 1276, 1281

(D.C.Cir.2015) (citing id.); cf. John H. Beisner, Discovering a Better Way: The Need for Effective

Civil Litigation Reform, 60 DUKE. L.J. 547, 577 (2010) (discussing the history behind this

mandatory disclosure provision). Rule 26(a)(1)’s purpose is “to accelerate the exchange of basic

information about the case and to eliminate the paperwork involved in requesting such information,

and the rule should be applied in a manner to achieve those objectives.” FED. R. CIV.

P. 26 advisory committee's note (1993 amend.); see also Chiasson v. Zapata Gulf Marine Corp.,

988 F.2d 513, 517 (5th Cir.1993) (“The federal rules promote broad discovery so that all relevant

evidence is disclosed as early as possible, making a trial less a game of blind man's bluff and more

a fair contest.” (emphasis in original) (internal quotation marks omitted)).

Another rule authorizes punishment for a party’s failure to comply with Rule

26(a)(1). FED. R. CIV. P.37(c)(1). Rule 37(c)(1) reads:

If a party fails to provide information or identify a witness as

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

information or witness to supply evidence on a motion, at a hearing,

or at a trial, unless the failure was substantially justified or is

harmless. In addition to or instead of this sanction, the court, on

motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including

attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

(C) may impose other appropriate sanctions, including any of the

orders listed in Rule 37(b)(2)(A)(i)-(vi).

Id.; Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir.2004) (quoting rule). In the

making of this determination, courts consider numerous factors, including (1) “the surprise or

prejudice to the blameless party,” (2) “the ability of the offender to cure any resulting prejudice,”

(3) “the amount of disruption to the trial that would result from permitting the use of the evidence,”

and (4) “the bad faith involved in not producing the evidence at an earlier date.” Spearman Indus.

v. St. Paul Fire & Marine Ins. Co., 138 F.Supp.2d 1088, 1094 (N.D.Ill.2001); accord, e.g., Lanard

Toys, Ltd. v. Novelty, Inc., 375 Fed.App’x. 705, 713 (9th Cir. 2010) (citing to David v. Caterpillar,

Inc., 324 F.3d 851, 857 (7th Cir. 2003)).

Many courts have deemed Rule 37(c)(1)’s exclusionary sanction as “mandatory.” Falconer

v. Penn Mar., Inc., 421 F.Supp.2d 190, 207 (D. Me. 2006). In so doing, these courts have

overlooked the safety valve written into Rule 37(c)(1). Its second sentence explicitly allows a court

to substitute its exclusory sanction with any “other appropriate” punishments. FED. R. CIV.

P. 37(c)(1) (referencing the sanctions listed in Rule 37(2)(A) as nonexclusive possibilities); Ortiz–

Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 35

(1st Cir. 2001) (describing Rule 37(c) as affording “wide latitude”). Generally, courts should

“carefully consider Rule 37(c), including the alternate sanctions available, when imposing

exclusionary sanctions that are outcome determinative.” Musser, 356 F.3d at 760 (affirming

judgment but urging cautious application of Rule 37(c)(1)).

Even an unquestioned violation of Rule 26(a)(1), therefore, “does not compel the district

judge to exclude testimony in its entirety” pursuant to Rule 37(c)(1). Roberts ex rel. Johnson v.

Galen of Va., Inc., 325 F.3d 776, 783–84 (6th Cir.2003); see also, e.g., M.V.B. Collision, Inc. v.

Allstate Ins. Co., 728 F.Supp.2d 205, 225 (E.D.N.Y.2010) (observing that preclusion under Rule

37(c) should follow only once a court has determined that a party has failed to make a

timely disclosure, this failure was without substantial justification or excuse, sanctions are

warranted, and preclusion is appropriate); Allstate Ins. Co. v. Nassiri, No. 2:08–cv–00369–JCM–

GWF, 2010 U.S. Dist. LEXIS 138220, at *14, 2010 WL 5248111, at *5 (D. Nev. Dec. 16,

2010)(“Rule 37(c)(1) does not, however, require the district court in all instances to exclude

evidence as a sanction for late disclosure that is neither justified or harmless.”).

Here, the Court finds that the late disclosure was justified in that Plaintiffs learned of the

existence and/or identities of these witnesses after the deadlines. With specific reference to

Woodard, Defendants failed to furnish the identity of the trusty who was seen on the video despite

a request from Plaintiffs to identify him. Defendants have not established that Plaintiffs were in

bad faith.

Accordingly, Defendants’ Motion to Strike on these grounds is DENIED as to Jackson and

Woodard.

8. Declaration of Col. Bradney Rogers dated April 27, 2020, Exhibit 189

Defendants object to the Declaration of Col. Bradney Rogers (“Rogers”) on the grounds

that he was not listed as either a lay witness or an expert witness, and that Rogers has not produced

an expert report. Defendants further object that Rogers is not qualified as an expert. Finally,

Defendants object that Rogers’ opinions are inadmissible because they contain a mixture of legal

conclusions and factual findings.

a. Failure to Disclose Rogers as a Witness

Defendants contend that Plaintiffs never disclosed Rogers as a witness. Defendants

contend, furthermore, that to the extent Rogers is sought to be used as an expert witness, no

designation of Rogers as an expert has ever been made and no report has ever been provided.

Defendants assert that it was not until after all of the Defendants had filed their Motions for

Summary Judgment, which detailed Plaintiffs’ failures of proof, that Plaintiffs provided the

carefully tailored opinions and conclusions of Rogers in his April 27, 2020 Declaration.

Defendants conclude that, pursuant to Rule 26 and the Court’s Scheduling Order [Doc. 75], the

declaration of Rogers must be excluded from consideration in support or in opposition to any

Motion for Summary Judgment.

Plaintiffs respond that they only became aware of Rogers’ potential as a witness once John

Badger (“Badger”) told Plaintiffs that Rogers allegedly left RCC due in part to the kind of prisoner

treatment Badger had allegedly observed. In July 2019 Plaintiffs propounded an Interrogatory to

Defendants to obtain location information on Rogers [Doc. No. 345-3]. Defendants provided

Rogers’ phone number and address to Plaintiffs on December 3, 2019. [Id.]. Plaintiffs state they

were first able to contact Rogers during late March 2020 although earlier attempts were made.

Rogers met with Plaintiff’s counsel on April 22, 2020. [Doc. No. 345-4]. After several extensions

agreed to by the parties, oppositions were filed May 22, 2020. Plaintiffs conclude the above

establishes substantial justification for the untimely disclosure. Plaintiffs further argue that

Defendants have not been prejudiced because there is no trial date and they will not object to

Defendants taking Rogers’ deposition.

The Court finds that, unlike the situation with Woodard and Jackson, Plaintiffs have failed

to show there was justification for the delay in disclosing Rogers as a witness. Plaintiffs admit

that they received Rogers’ telephone number and address on December 3, 2019, from Defendants.

Plaintiffs also admit that they were given Rogers’ name by Badger, but Plaintiffs fail to provide a

date for that disclosure. Plaintiffs claim that Rodgers was not contacted until late March 2020 and

that Rodgers met with Plaintiff’s counsel on April 22, 2020. However, there is no explanation

given as to why Plaintiffs waited until May 20, 2020, through the filing of his Declaration, to

disclose Rogers.

The Court further finds that Defendants have been prejudiced by the delay. Plaintiffs had

the luxury of learning all of the problems with Sanders’ testimony that had been asserted by

Defendants and were thus able to unfairly craft Rodgers’ Declaration to buttress their claims.

Allowing Plaintiffs this avenue to unfairly and untimely attack the motions for summary judgment,

after four years of discovery, defeats the purpose of discovery, disclosure deadlines, deposition

deadlines, expert deadlines, and dispositive motion deadlines.

Plaintiffs also contend that Rogers should not be treated as an expert retained for purposes

of providing expert opinions under Rule 26 because he was not retained, nor was he specially

employed, by Plaintiffs.

Federal Rule of Civil Procedure 26 requires a party to disclose “the identity of any witness

it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” FED. R.

CIV. P. 26(a)(2)(A). In addition to disclosing the identity, if the witness is retained or specially

employed to provide expert testimony in the case, the disclosure must include a written report

complying with certain requirements. FED R. CIV. P. 26(a)(2)(B). If the witness does not fall into

that category and is not required to provide a written report, the disclosure need only state ‘the

subject matter on which the witness is expected to present evidence under Federal Rule of Evidence

702, 703, or 705” and “a summary of the facts and opinions to which the witness is expected to

testify.” FED. R. CIV. P. 26(a)(2)(C).

The Court finds that Plaintiffs’ argument is of no avail. Plaintiffs failed to satisfy even the

less stringent requirement for witnesses in general, including experts who are not retained. They

did not file a disclosure showing the subject matter and a summary of facts and opinions prior to

filing Rogers’ Declaration. Further, Defendants were prejudiced by this delay. Defendants have

never had the opportunity to cross-examine Rogers on his claimed expertise or his opinions.

The Court finds that there is no justification for Plaintiffs’ delay in disclosing Rogers as a

witness or in failing to provide either an expert report or a summary of the facts and opinions to

which he is expected to testify prior to the filing of Rogers’ Declaration. Furthermore, Defendants

have been prejudiced by the delay. Accordingly, for this reason alone, Rodgers’ Declaration

should be stricken.

However, assuming arguendo that Rodgers’ Declaration should not be stricken on this

basis, the Court will nevertheless consider the other grounds asserted by Defendants for the

exclusion of Rodgers’ Declaration.

b. Rogers is not Qualified as an Expert

Plaintiffs assert that Rogers has a great deal of experience in training corrections officers,

has more than thirty years of experience in the Louisiana Department of Corrections (“DOC”), has

a work history at RCC, and currently does contract work with DOC.

Defendants respond that Rogers does not provide any information on whether he has ever

been qualified as an expert in anything. Defendants further assert that a search for “Bradney

Rogers” in Westlaw reveals no case where that name has ever appeared. Finally, as indicated

above, the Defendants were never notified that Rogers was a witness and therefore have never had

the opportunity to cross-examine Rogers on his claimed expertise or his opinions.

In their first Motion to Strike, Defendants argued that Kenny Sanders’ opinions on liability

had to be excluded under Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) and

Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999) and Fifth Circuit jurisprudence. [Doc.

282-1, pg. 10-14]. Here, they incorporate those arguments by reference to exclude Rogers’

opinions, testimony, or evidence.

Under Rule 702, the Court must determine whether the proposed expert witness has

training or experience, and will offer opinions, sufficiently related to the issues and evidence before

the court for the expert’s testimony to assist the trier of fact. Primrose Operating Co. v. Nat’l Am.

Ins. Co., 382 F.3d 546, 562–63 (5th Cir. 2004). The district court must also make a “preliminary

assessment of whether that reasoning or methodology underlying the testimony is scientifically

valid and of whether the reasoning or methodology can be applied to the facts at issue.” Skidmore

v. Precision Printing & Packaging, Inc., 188 F.3d 606, 617 (5th Cir. 1999) (quoting Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993) ). The court “must ensure the expert uses

reliable methods to reach his opinions.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.

2004).

Plaintiffs have failed to offer evidence to show Rodgers is qualified to offer expert

testimony. They offer nothing to show he has ever been qualified as an expert in any field. They

offer nothing to assist the Court in ensuring Rogers uses reliable methods to reach his opinions.

Accordingly, the Court finds that Rogers’s Declaration is also inadmissible on the basis

that he has not been qualified as an expert. However, assuming arguendo that Rogers is qualified

as an expert, the Court will consider Defendants’ final argument for excluding Rogers’

Declaration.

c. Rogers’ Declaration is a Mixture of Legal Conclusions and

Factual Findings and, therefore Inadmissible.

Defendants assert that Rogers’ Declaration is inadmissible because it contains a mixture of

legal conclusions and factual findings. They reference the arguments made in their first Motion to

Strike with regard to Sanders’ and Turner’s opinions.

More specifically, Defendants object to the following opinions, conclusions, and

statements in Rogers’ Declaration:

1. Runner’s strike to Mr. Moore hit the right rear of his head.

(Paragraph 5);

2. The suddenness and quickness of Moore’s movement to the

floorshows that Runner did not use a simple push. (Paragraph 5);

3. Moore did not attempt to brace himself against the fall or strike.

(Paragraph 5);

4. Moore was not actively resisting but was at most passively

resisting. (Paragraph 5);

5. Officers are trained not to use a closed fist strike in that situation,

particularly to the head. (Paragraph 5);

6. The strike sent Moore head first into the cell floor, which is

extremely dangerous considering the risk of significant injury to the

head. (Paragraph 5);

7. The fist strike was of significant force as shown by the length of

time Moore was on the floor and that he staggered and seemed dizzy.

(Paragraph 5);

8. Runner’s description in his report of pushing Moore to the floor

does not match what the video shows. (Paragraph 5);

9. Several things done by Hardwell were not consistent with

correctional training. (Paragraph 6);

10. Moore was not resisting. (Paragraph 6);

11. Moore may have been passively resisting by not following direct

orders. (Paragraph 6);

12. Hardwell and other C.O.s should have handcuffed Moore inside

LD 7. (Paragraph 6);

13. The C.O.s should have secured Moore by holding him by the

arm and legs giving Hardwell the opportunity to safely handcuff

Moore. (Paragraph 6);

14. There is no training offered to C.O.s to grab an inmate from

behind in a “bearhug” style and carry the inmate out of the cell.

(Paragraph 6);

15. C.O.s are not trained to approach inmates from behind.

(Paragraph 6);

16. The “slam” onto the floor in the hallway is extremely dangerous

and should be considered deadly force because eof the high degree

of risk of significant injury to the head. (Paragraph 6);

17. The “slam” by Hardwell is not a recognized tactic. (Paragraph

6);

18. Moore was not actively resisting inside LD 7. (Paragraph 6);

19. Moore did not actively resist while being carried out of LD 7 or

while being slammed down. (Paragraph 6);

20. While on the floor after being slammed, it was evident that

Moore was injured and was not actively moving. (Paragraph 6);

21. Moore was not kicking. (Paragraph 6);

22. Hardwell’s report does not match what is shown in the video.

(Paragraph 6);

23. Moore was not simply placed on the floor but rather Hardwell

used dangerous and significant force on Moore. (Paragraph 6);

24. When Moore was slammed into the floor or onto the floor, he

should not have been hand carried. (Paragraph 7);

25. The training provided to these officers is that if a stretcher or

some other equipment is not available to carry an inmate, you are to

use a blanket. (Paragraph 7);

26. The drop by Runner was not the fault of Moore. (Paragraph 7);

27. It is evident from the video that Moore was not struggling against

being carried as he was not moving his legs or feet in a manner to

resist being carried. (Paragraph 7);

28.While being carried, Moore appears to be incapacitated.

(Paragraph 7);

29. The drop by Runner amounts to corporal punishment.

(Paragraph7);

30. Several acts of the C.O.s were below standards. (Paragraph 8);

31. C.O.s who were standing in the hallway when Moore was

slammed had first aid training. (Paragraph 8);

32. The C.O.s should have examined Moore and/or called a nurse

for an examination. (Paragraph 8);

33. Each C.O. should have informed the nurse of the head strike.

(Paragraph 8);

34. Each C.O. should have immediately called for medical

assistance. (Paragraph 8);

35. Moore should have been transported to a hospital. (Paragraph 8);

36. While Moore was in the four way he should have been taken to

a hospital. (Paragraph 8);

37. No reasonable C.O. would have believed after what had

happened in the hallway that Moore would simply be asleep.

(Paragraph 8);

38. The C.O.s should have assumed Moore was unconscious or in

capacitated. (Paragraph 8);

39. Moore never should have been on his back. (Paragraph 8);

40. Layingon ones back while handcuffed is extremely painful, too

painful to sleep and presents a risk of choking by aspiration.

(Paragraph 8);

41. The nurse should have done a complete examination.

(Paragraph8);

42. C.O.s who do not receive regular refresher training in defensive

tactics can be expected to use excessive force. (Paragraph 9);

43. Use of defensive tactics is a diminishing skill which C.O.s, if not

retrained in regular, will revert to street fighting methods and place

inmates and themselves in dangerous serious bodily injury.

(Paragraph 9);

44. The failure to regularly conduct in-service training is

deliberately indifferent to an inmate’s right to be free of excessive

force. (Paragraph 9);

45. Creed and Hanson were required to know the material aspects of

the contract between RCC and the City of Monroe. (Paragraph 10);

46. The lack of knowledge of the contract reflects deliberate

indifference to how a jail was operated at RCC. (Paragraph 10);

47. LaSalle did not provide any in-service training to the RCC C.O.s

while Rogers was employed at RCC from July2017to April 2018.

(Paragraph 11);

48. LaSalle would not authorize payment to the C.O.s to attend in-

service training. (Paragraph 11);

49. Typically, C.O.s from 2000 to the present are taught the PPCT

curriculum in defensive tactics. (Paragraph 11);

50. PPCT requires twenty-four hours of academy instruction and

sixteen hours in-service training, annually. (Paragraph 11);

51. All DOC officers are taught PPCT. (Paragraph 11); and

52. As a BJG auditor, Rogers is familiar with training standards used

in North Louisiana training academies, and based upon his

experience, PPCT is taught. (Paragraph 9).

Plaintiffs respond that all of the above facts or opinions are admissible. They assert that

Items 1-13 are fact-based opinions of Rogers based upon his training, experience, and examination

of the cell and hall video; Items 14 and 17 are a combination of his training coupled with his

examination of the video; Items 15 and 16 are facts based upon Roger’s training and experience;

Items 18-14 and 27-32 and 35-38 are opinions as well; Item 25 is a fact of training concerning the

use of a stretcher; Items 33 and 34 are a comment on training as to when to inform the nurse about

certain force strikes; Items 39-52 are generally facts based on training; Item No. 41 is an opinion,

as are Items 44 and 46, concerning acts constituting deliberate indifference; AND Items Nos. 44

and 46 are likely opinions which provide a conclusion as to the ultimate issue of deliberate

indifference which are not themselves excluded under FED R. EVID 704, as he provides no opinion

that any constitutional provision is violated or that defendants are at fault.

Plaintiffs further argue that they are offering Rogers’ Declaration to rebut George

Armbruster’s (Defendants’ expert’s) opinions and conclusions. Defendants respond that this last

argument establishes that Plaintiffs’ real goal is to add another expert for the jury to consider

because the Plaintiffs recognize that Sanders’ opinions are not adequate to support their case-in-

chief. Defendants state, further, that Rogers’ Declaration is offered to directly support Plaintiffs’

case-in-chief, that the training afforded the C.O.s at RCC was inadequate and that the RCC

Defendants used excessive force on Moore, and is, therefore not rebuttal.

Defendants further respond that Rodgers claims to have been employed at RCC from July

20, 2017, until around April 2018, and purports to have knowledge of training and practices at

RCC during that period of time. However, the incident at issue here occurred in October of 2015

and any training would have taken place prior to that date. This shows that, contrary to Plaintiffs’

arguments, Rodgers has no personal knowledge of any facts relevant to this suit and can only be

an “expert” witness.

Citing Wellman v. Evans, 2003-1720 (La. App. 3 Cir. 6/16/04), 876 So. 2d 954, and James

v. Iberia Parish Sheriff’s Office, 2019-286 (La. App. 3 Cir. 12/18/19), 286 So. 3d 629, Defendants

additionally argue that Rogers’ opinion on what is a good correctional practice, including a

reference to guidelines or policies, is not relevant or admissible evidence to establish a

Constitutional violation, or liability under state law. Defendants argue that any other writing, such

as a contract, policy, guideline or standard can have no role in determining whether there is liability

under federal or state law.

While it is clear that internal policies and advisory national standards are not determinative

of fault and/or the applicable standard of care, the Court believes that such policies and standards

are probative as to the controlling standard of care in this case. See Schurman v. Panola-Harrison

Electrical Coop., Inc., No. 03-1467, 2006 WL 8456468, (W.D. La. June 6, 2006). Therefore,

Rogers’ opinion is not inadmissible on that basis.

Nevertheless, as the Court stated in its Ruling on the first Motion to Strike,

although expert testimony is not objectionable simply “because it embraces an ultimate issue,” an

expert’s opinion on ultimate issues can be excluded if it is otherwise inadmissible under the Federal

Rules of Evidence. FED. R. EVID. 704. When opinion testimony combines law and fact, the

question is “whether the opinion will ‘help the trier of fact to understand the evidence or to

determine a fact in issue.’” 29 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE & PROCEDURE § 6284 (2d ed.) (quoting FED. R. EVID. 702). Expert opinions as to

whether a defendant violated the law are inadmissible. FED. R. EVID. 702; See Goodman v. Harris

Cty., 571 F.3d 388, 399 (5th Cir. 2009).

In Toomer v. Florida Parishes Juvenile Justice Commission, No. 03-0734, 2005

WL5974570 (E.D. La. Mar. 3, 2005), the district judge stated:

The Court finds that [the expert’s] opinion is a mixture of legal

conclusions and cumulative factual assertions that would unduly

infringe upon the fact-finding functions of the jury and, worse, likely

lead to jury confusion. Further, this witness’ opinions, to the extent

they might have factual support, are nothing more than logical

common-sense conclusions, unnecessary to aid the jury.

Id. at * 1.

Similar issues were decided in N.S. v. City of Alexandria, 919 F. Supp. 2d 773 (W.D. La.

2013), where a motion to strike was filed by the defendants seeking to exclude the opinions of the

plaintiff’s police liability expert. After reviewing the law and the opinions at issue the district court

held:

Dr. Kelly’s opinions, as expressed in his deposition, are

inadmissible based on authority from the United States Fifth Circuit

excluding expert testimony in a § 1983 case consisting of nothing

more than “credentials and a subjective opinion.” (citing

Benavides). Dr. Kelly provides simply his credentials and his

subjective opinion that he would have acted differently than

Fairbanks based on the facts presented. Under the Fourth

Amendment, an opinion that one would have acted differently does

not negate the officer’s reasonableness at the time of the act.

(citations omitted). Therefore, Dr. Kelly’s opinions about alternative

methods he believes Fairbanks should have used are irrelevant and

inadmissible.

Dr. Kelly’s opinions are also inadmissible to the extent they contain

legal conclusions or factual findings. Expert opinions cannot unduly

infringe on the factfinding functions of the jury and are inadmissible

to the extent that such opinions assert factual findings. (Citations

omitted). Dr. Kelly’s deposition contains nothing more than his legal

conclusions based on factual findings presented to him before and

during the deposition. Any conclusions made by Dr. Kelly cannot

be the subject of expert testimony because these fall within the

province of the fact finder, who is charged with hearing the facts,

weighing the reliability and credibility of witnesses and evidence,

and deciding the outcome of the case at issue.

Id. at 786.

Here, Plaintiffs argue that Rogers’ conclusions would aid a jury and/or the Court to decide

that all of the force used by anyone was wrong. However, Defendants argue that Rogers cannot

see from the video what Runner saw. Defendants contend that Rogers does not consider the threats

being made by Moore to White or the C.O.s. The threats described by the C.O.s could be construed

as a “pre-assault” indicator. In addition, Defendants assert that Runner interposed himself between

Moore, the other C.O.s, and Moore’s victim, White, who subsequently died from his injuries, to

protect them from Moore. Finally, Defendants assert that Rogers also does not consider the equally

valid interpretation of the video, that the shove from Runner caused Moore to lose his balance,

which served to stop Moore’s impending attack on the C.O.s and/or White.

In considering the pending dispositive motions, the Court will view the video and

determine what is indisputably shown therein. If there are genuine issues of material fact for trial,

a jury will view the video and reach its own conclusions on what is shown. Therefore, the Court

finds that the expert opinions at issue here unduly infringe on the factfinding functions of the jury

and are inadmissible.

Although Rogers’ opinions on whether the officers’ conduct conformed to professional

standards of care is relevant to determining whether the force used was excessive, these opinions

do not show whether a reasonable officer in the same circumstances would have believed that his

or her conduct was reasonable. See, e.g., City & Cty. of San Francisco v. Sheehan, 135 S.Ct. 1765,

1777 (2015) (“[S]o long as a reasonable officer could have believed that his conduct was justified,

a plaintiff cannot avoi[d] summary judgment by simply producing an expert’s report than an

officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even

reckless” (alteration and internal quotation marks omitted).

As indicated above, where the expert opinions at issue combine law and fact, the question

is whether the opinion will help the trier of fact to understand the evidence or to determine a fact

in issue. These expert opinions do not meet that test. Whether Runner’s or Hardwell’s use

of force was excessive or deadly is a legal question that is not proper subject matter

for expert testimony. To the extent that Rogers offers legal conclusions, the Court will not consider

their expert opinions or reports.

Accordingly, for the above reasons, Defendants’ Motion to Strike Rogers’ Declaration is

GRANTED.

9. Deposition of Kenny Sanders, Exhibit KS

The Defendants object to the admissibility of the Deposition of Kenny Sanders. This

objection has been addressed by the Court in the Ruling on the first Motion to Strike [Doc. No.

282]. Accordingly, for the same reasons set forth in that Ruling, the Court GRANTS Defendants’

Motion to Strike.

10. Declaration of Kenny Sanders with attachments dated

April 27, 2020, Exhibit 190

Defendants object to Sanders’ new opinions found in his April 27, 2020 Declaration as

being untimely and in violation of the Court’s Order. Defendants contend that Sanders’

Declaration contains new opinions and new conclusions not previously disclosed. They also assert

that the new Declaration makes statements that are contradicted by his deposition testimony. They

state the new Declaration is an apparent attempt to supplement his original report and to close the

gaps and failings found in Sanders’ opinions, as exposed in Sanders’ deposition.

Defendants contend that it is apparent that Sanders’ new Declaration is nothing more than

an attempt to skirt the requirement that experts prepare reports by the deadlines set by order of the

Court, which reports must contain their full opinions and the basis for their opinion.

Defendants further argue that Sanders’ new Declaration and all new opinions therein

should be stricken for the reasons set out in their initial Memorandum on Motion to Strike.

Defendants assert that all of Sanders’ opinions, whether found in his deposition, declaration, or

report, should be found to be inadmissible.

Plaintiffs respond that Sanders’ Declaration contains no new opinions; rather, it clarifies

his prior opinions, and that his Declaration is subject to being stricken only to the extent that it

inserts new opinions that are not mere elaboration or supplementation. See In re Complaint of C.F.

Bean L.L.C., 841 F.3d 365, 371 (5th Cir. 2016). They argue that Sanders’ Declaration merely

explains his opinions in more detail.

More specifically, Plaintiffs assert that Sanders should be allowed to explain that the typical

training used by correctional officers in defensive tactics is PPCT, which requires, as a part of its

curriculum, refresher training annually. Plaintiffs argue that PPCT is a “manufacturer” of training

curriculum and that the PPCT’s requirements apply and lead to the conclusion that the C.O.s at

RCC were improperly trained.

Defendants reply that, whether a “manufacturer” has a line in a manual about training is

not relevant or admissible evidence as to whether the Constitution was violated.

Rule 26(e)(1)(A) allows a party to supplement when it “learns that in some material respect

the disclosure or response is incomplete or incorrect.” “The purpose of rebuttal and supplementary

disclosures is just that—to rebut and to supplement. These disclosures are not intended to provide

an extension of the deadline by which a party must deliver the lion's share of its expert

information.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 571 (5th

Cir. 1996). Further, the rule is not a basis to make “material additions” to an initial report. Harmon

v. Ga. Gulf Lake Charles LLC, 476 Fed. App’x. 31, 38 (5th Cir. 2012) cited with approval in Cole

v. Hunter, 68 F. Supp. 3d 628, 639 (N.D. Tex. 2014) (holding that “[s]upplemental opinions must

not include material changes or corrections to the expert opinions.”)

The Court finds that Plaintiffs have not established that Sanders’ Declaration merely rebuts

and supplements his original opinions and does not make material additions. His Declaration does

contradict some of his earlier statements. Further, the Court’s Ruling on Defendant’s original

Motion to Strike [Doc. No. 282] was that, to the extent that Sanders unduly infringes on the

factfinding functions of the Court or offers legal conclusions, the Court will not consider his expert

opinions or report. For the same reasons, the Court GRANTS Defendants’ Motion to Strike

Sanders’ Declaration. To the extent that Sanders unduly infringes on the factfinding functions of

the Court or offers legal conclusions, the Court will not consider his Declaration.

CONCLUSION

For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART the

pending Motion to Strike [Doc. No. 333].

MONROE, LOUISIANA, this 30" day of October, 2020.

UNIT ips ATES DISTRICT JUDGE

28