Simmons v. Jones

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

BYRON SIMMONS CIVIL NO. 3:20-CV-01309

VERSUS JUDGE TERRY A. DOUGHTY

RICKEY A. JONES, ET AL. MAG. JUDGE KAYLA MCCLUSKY

RULING

Pending before the Court is a Motion in Limine/Daubert Motion [Doc. No. 26] filed by

Defendants Ricky A. Jones, individually and in his official capacity as the Tensas Parish Sheriff,

and Pat W. Smith, individually and in her official capacity as Warden of the Tensas Parish

Detention Center (“TPDC”) (collectively “Defendants”). Plaintiff Byron Simmons (“Simmons”)

opposes the motion [Doc. No. 29].

For the following reasons, Defendants’ Motion is GRANTED IN PART and DENIED IN

PART.

I. FACTS AND PROCEDURAL HISTORY

This case arises from an accident which occurred on October 9, 2019, at the TPDC.

Simmons, a state prisoner being incarcerated at the TPDC, was working in the kitchen, cooking

rice in a large pot on what is referred to by the parties as a “tilt grill.” Simmons was wearing

rubber boots of the style sometimes called “shrimp boots.” Simmons asserts that a mixture of water

and oil was boiling in the pot when the tilt grill collapsed, sending hot scalding water down his leg

and into his boot, where it was trapped, causing him to sustain severe 2nd and 3rd degree burns.

Simmons was initially treated at the Franklin Parish Medical Center (“FPMC”). Simmons

alleges that the physicians at FPMC twice recommended that he be treated at the burn center at

either Jackson, Mississippi or Shreveport, Louisiana. Simmons further alleges that the authorities

at TPMC never scheduled an appointment for him to be seen, evaluated, and treated at a burn

center, which resulted in him being left with a permanently deformed foot.

On October 7, 2020, Simmons filed this lawsuit, asserting claims under Title 42 United

States Code § 1983, and the Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States

Constitution. He also asserts claims under state law. Simmons alleges that he was in need of

specialized medical treatment and care, but Defendants refused to authorize any treatment outside

of TPDC. Simmons states that he suffered pain on a daily basis, but Defendants ignored and

refused his needs for specialized treatment and wound care. He alleges that Defendants were

deliberately indifferent to his medical needs.

On January 6, 2022, Defendants filed the pending Motion in Limine/Daubert Motion

seeking to limit the testimony of Plaintiff’s expert, Dr. Richard Willner, a podiatrist, in eight

different respects. Simmons has filed an opposition [Doc. No. 29].

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

II. LAW AND ANALYSIS

Under Federal Rule of Evidence 702, an expert opinion on scientific, technical, or

specialized knowledge can be admitted only 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

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(d) the expert has reliably applied the principles and methods to the

facts of the case.

FED. R. EVID. 702. When faced with expert testimony, the court must determine at the outset if

the proponent of the evidence has proven its admissibility by a preponderance of the evidence.

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 n.10 (1993) (citing FED. R. EVID.

104(a) and Bourjaily v. U.S., 483 U.S. 171, 175-76 (1987)). Courts have considerable discretion

in deciding whether to admit or exclude expert testimony. See Kumho Tire Co. v. Carmichael,

526 U.S. 137, 152 (1999) (“[W]e conclude that the trial judge must have considerable leeway in

deciding in a particular case how to go about determining whether particular expert testimony is

reliable.”); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-9 (1997).

However, as gatekeeper, the district court is not intended to replace the adversary system:

“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.” United States v. 14.38 Acres of Land, More or Less Situated in Lefore Cty, Miss., 80

F.3d 1074, 1078 (5th Cir. 1996) (quoting Daubert, 509 U.S. at 596).

In determining whether to allow expert opinion testimony, a court must first decide whether

the witness is qualified as an expert by knowledge, skill, experience, training, or education. See

Moore v. Ashland Chemical, Inc., 126 F.3d 679, 684 (5th Cir. 1997). 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 particular subject. Wilson v. Woods, 163 F.3d 935 (5th Cir. 1999).

If a witness is qualified to testify, the court must then determine whether the proffered

testimony is both relevant and reliable. Reliability and relevance, under Rule 702, are the

hallmarks of admissible expert testimony. Daubert, 509 U.S. at 589; In re MBS Mgmt. Servs.,

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Inc., 690 F.3d 352, 357 (5th Cir. 2012). In making its reliability determination, the court must

assess whether the “reasoning or methodology underlying the testimony is scientifically valid.”

Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999). However, the focus of

reliability “must be solely on principles and methodology, not on the conclusions they generate.”

Daubert, 509 U.S. at 595.

Relevance includes not only the general requirement contained in Rule 401 that the

testimony tend to make the existence of any fact more probable or less probable, but also the

prerequisite that the expert testimony “assist the trier of fact to understand the evidence or to

determine a fact in issue.” FED. R. EVID. 702; Daubert, 509 U.S. at 591 (“Expert testimony which

does not relate to any issue in the case is not relevant and, ergo, non-helpful.”) (quoting 3 J.

WEINSTEIN & M. BERGER, WEINSTEIN’S EVIDENCE ¶ 702[02], p. 702-18 (1988)). In assessing

relevance, courts “must determine whether that reasoning or methodology can be properly applied

to the facts in issue.” Id. (citing Daubert, 509 U .S. at 592-93).

Ultimately, “[t]he district court’s responsibility is ‘to make certain that an expert, whether

basing testimony upon professional studies or personal experience, employs in the courtroom the

same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’”

Pipitone v. Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002) (quoting Kumho Tire Co., 526 U.S.

at 152).

The Court will address Defendants’ contentions in the order set forth in their motion.

A. The Standard of Care as to the Defendants

First, Defendants move to limit Dr. Willner’s statements and commentary regarding the

standard of medical care inasmuch as it is directed to the Defendants. Defendants argue that Dr.

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Willner’s conclusion that the medical care and treatments delivered to Simmons fell below the

standard of care of a reasonable podiatrist or physician practicing in Louisiana is inapplicable to

the Defendants because neither Defendant, nor either’s employees or subordinates, are physicians

or podiatrists. Defendants contend this opinion is irrelevant and therefore fails the admissibility

test under Rule 702.

In response, Simmons acknowledges that Defendants are not physicians or podiatric

surgeons, but he argues that the point of Dr. Willner’s opinion is that TPDC’s failure to transport

Simmons to the burn center effectively rendered the medical care delivered to him to be

substandard. This is especially true, according to Simmons, because the treating physicians at

FPMC recommended that he be sent for treatment at a burn center forthwith.

Dr. Willner concluded:

My review of Mr. Simmons' charts and my personal examination of

his foot causes me to opine to a reasonable medical certainty that the

medical care delivered to Mr. Simmons was; (a) below the Standard

of Care of a reasonable podiatrist or physician practicing in

Louisiana; (b) the treatments provided to Mr. Simmons cause him

to needlessly suffer severe and unnecessary pain; (c) that Mr.

Simmons will be left with a life-long deformity to his right foot that

would not be as severe as he currently presents had proper treatment

been rendered during his confinement at Tensas Parish Detention

Center;(d) I find it unconscionable that after the physician at

Franklin Medical Center recommended that Mr. Simmons be treated

at the burn center in Jackson, Mississippi that Tensas Parish

Detention Center did not act on said recommendation; and (e) Mr.

Simmons is left with a permanent deformity to his right foot

resulting from the inadequate medical care provided to him.

[Doc. No. 26-2, p. 28].

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The central issue is whether Simmons’ rights were violated by virtue of his not being

provided specialized medical treatment, i.e. by Defendants not taking him to a burn center.

Therefore, Dr. Wellner’s testimony is clearly relevant. Accordingly, to the extent Defendants

object to his testimony on the grounds of relevance, the motion is DENIED.

Defendants additionally object that Dr. Willner’s opinions regarding the administration of

narcotics in a correctional setting is inadmissible because there is no evidence of his expertise or

experience in practicing correctional medicine. They further object that he does not support this

opinion with any scientific argument or analysis of the prevailing standard of care in prisons.

Simmons states that Dr. Willner is a graduate of the Temple University School of Podiatric

Medicine, was awarded the degree of Doctor of Podiatric Medicine, is licensed to practice podiatry

in this state, and has so practiced for more than 30 years. The Court finds that Defendants have not

established that Dr. Willner lacks the requisite expertise regarding the administration of narcotics

in a correctional setting. Accordingly,

IT IS ORDERED that, to the extent Defendants object to Dr. Willner’s testimony on the

grounds of relevance, the motion is DENIED. Additionally, to the extent Defendants object to

Dr. Willner’s opinions regarding the administration of narcotics in a correctional setting, the

motion is DENIED.

B. Statements and Commentary Regarding Deliberate Indifference and

Negligence

Defendants assert that Dr. Willner should be precluded from testifying as to both

“deliberate indifference” and “negligence,” because expert witnesses cannot offer legal

conclusions. Simmons concedes that Dr. Willner may not opine on legal conclusions but

contends that Dr. Willner may testify as to the deficient medical treatments rendered Simmons.

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Expert witnesses cannot offer legal conclusions. See Fed. R. Evid. 704; also see Owen v.

Kerr McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983); Goodman v. Harris Cty., 571 F.3d 388,

399 (5th Cir. 2009). Rather than aiding the jury in making a decision, such testimony improperly

usurps both the role of the Judge in instructing the jury on the law, and the role of the jury in

deciding the result of the case. Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005); see

also Burkhardt v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997) (“Expert

testimony that consists of legal conclusions cannot properly assist the trier of fact....”).

“Deliberate indifference” is a legal standard. See Stewart v. Murphy, 174 F.3d 530, 541 n.9

(5th Cir. 1999). Of course, “negligence” is as well. An expert may not testify that a legal standard

has been satisfied.

Dr. Willner’s opinions and various statements regarding “deliberate indifference” and

“negligence” thus constitute impermissible legal conclusions that are not admissible.

Accordingly,

IT IS ORDERED that, to the extent Defendant move to preclude Dr. Willner from

testifying as to both “deliberate indifference” and “negligence,” the motion is GRANTED, and

that testimony is EXCLUDED.

C. Omission of the Word “Oil”

Defendants move to exclude Dr. Willner’s statements and commentary regarding the

omission of the word “oil” from Willie Webb’s report, and Dr. Willner’s statements and

commentary that the omission somehow evidences purposeful indifference or negligence.

Correctional Officer Webb prepared an October 9, 2019 Unusual Occurrence Report

wherein he wrote that “boiling water” from a tilt skillet spilled into Simmons’ boot causing the

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injury. Dr. Willner states that, two years later, Simmons told him there was also some oil in the

skillet. Defendants assert that Dr. Willner then made two inappropriate and inadmissible

assumptions. First, he assumes that there was oil in the skillet, which is a disputed fact. Second,

he assumes that Webb had information that there was oil in the skillet but was purposefully

indifferent and negligent in omitting that in the report. Defendants contend that Dr. Willner has no

qualifications to express an opinion that Officer Webb was purposefully indifferent and negligent,

because a correctional officer is not a medical professional.

Simmons acknowledges that Dr. Willner opines that oil was in the pot because Simmons

told him so, and Simmons does not dispute that the presence of oil is a disputed fact. Further,

Simmons acknowledges that Dr. Willner’s opinion that Officer Webb was purposely indifferent

and negligent is outside the realm of Dr. Willner’s expertise and can be excluded. Accordingly,

IT IS ORDERED that to the extent Defendants move to exclude Dr. Willner’s statements

and commentary regarding the omission of the word “oil” from Willie Webb’s report, and Dr.

Willner’s statements and commentary that the omission somehow evidences purposeful

indifference or negligence, the motion is GRANTED, and that testimony is EXCLUDED.

D. The Temperature of the Liquid Substance

Defendants move to exclude Dr. Willner’s statements and commentary as to the

temperature of the liquid substance that burned Simmons’ foot. Dr. Willner states in his report that

the scalding water/oil mixture is much hotter, resulting in a more severe burn. Defendants submit

that Dr. Willner has no idea what the temperature of the liquid substance was at the time of the

burn. They contend that Dr. Willner is free to opine, if he has the expertise, as to whether an

oil/water mixture is capable of causing a burn such as he describes in his report; however, he does

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not know and cannot state that the liquid substance at issue was an oil/water mixture of a known

temperature.

Simmons responds that Dr. Willner can state that water boils at 212 degrees and that it

boils at a higher temperature if oil is added to it.

The Court finds that any testimony by Dr. Willner that the liquid substance at issue was an

oil/water mixture of a known temperature is speculative and subjective. Accordingly,

IT IS ORDERED that, to the extent that Defendants move to exclude Dr. Wellman’s

testimony that the liquid substance at issue was an oil/water mixture of a known temperature, the

motion is GRANTED, and that testimony is EXCLUDED.

E. Statements and Commentary regarding Tilt Cooking Surface and

Appropriate Shoe Gear

Defendants move to exclude Dr. Willner’s statements and commentary regarding the “tilt

cooking surface,” its condition, or “appropriate shoe gear.” Defendants assert that Dr. Willner

makes biased, prejudicial statements wholly outside of the arena of podiatry when he begins

discussing the tilt skillet at issue, its condition, and the kind of shoes Simmons should have been

wearing while working with it. Defendants further assert that, although Dr. Willner is a doctor, he

has not been offered as an expert in tilt skillets, kitchen management, or correctional facilities.

Therefore, any opinions he may or may not have regarding tilt skillets, their maintenance, or the

kinds of shoes one should wear while operating them in a prison setting are outside the scope of

his proffered expertise and thus constitute inadmissible speculation or subjective belief.

Defendants submit that he should be excluded from discussing these subjects in their entirety.

Simmons responds that the discipline of podiatry is limited on the human body to be from

the ankle to the sole of the foot. He states that podiatric surgeons are very experienced with the

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human foot and all of its mechanics, pathology and the effects of trauma. Therefore, while Dr.

Willner is not an expert on "tilt grills", "kitchen management" or "correctional facilities", he is an

expert on feet. Thus, he should be allowed to testify that he has treated many traumatic foot cases

and to express his opinions on what are the best types of protective footwear. Simmons concludes

that those topics clearly fall within the bailiwick of his profession and should be admissible.

Dr. Willner is obviously not an expert on tilt grills or kitchen management.

Accordingly,

IT IS ORDERED that, to the extent Defendants move to exclude Dr. Willner’s statements

and commentary regarding the “tilt cooking surface,” its condition, or kitchen management, the

motion is GRANTED, and that testimony is EXCLUDED.

However, as a podiatrist, Dr. Willner is qualified to express an opinion as to the appropriate

protective footwear in a kitchen setting. Defendants can challenge his testimony through cross

examination. Accordingly,

IT IS FURTHER ORDERED, that to the extent Defendants move to exclude Dr.

Willner’s testimony as to the appropriate protective footwear in a kitchen setting, the motion is

DENIED.

F. Statements and Commentary Regarding Prisoner Status

Defendants move to exclude Dr. Willner’s statements and commentary regarding the use

of the term “Offender Simmons” and his references to Simmons as “literally a prisoner with no

power.” Defendants state that Dr. Willner appears to be offended that Simmons is refered to as

“Offender Simmons” in the jail’s records. For example, Dr. Willner writes:

Referring to Mr. Simmons as ‘Offender Simmons’ might be usual

with prison employees, but it is demeaning to a person in

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rehabilitation, and it leads to dehumanization. It is very easy to be

dismissive. Words have meaning.

[Dr. Willner Report, Doc. No. 26-2, p. 2]. Dr. Willner also refers several times to Simmons as

“literally a prisoner with no power.” [Id, p. 4 and repeating throughout]. Defendants assert that,

regardless of Dr. Willner’s views on this issue, these opinions fall wholly outside of his proffered

area of expertise, podiatry; are irrelevant; and should be excluded as merely subjective belief or

unsupported speculation, which makes them unreliable under Rule 702.

Simmons responds that, unfortunately, this attitude permeates throughout what some have

called the prison industrial complex, denigrating prisoners as a lower form of humanity. He states

that Fyodor Dostoyevsky famously wrote that “the degree of civilization in a society can be judged

by entering its prisons” [quoting from The House of the Dead.]. Simmons asserts that if it had been

a prison employee who sustained this injury, he would not have been denied a trip to the burn

center. He further asserts that Dr. Willner’s commentary is germane to the particular facts of the

present case, particularly to the question of deliberate indifference. He concludes that the

commentary is relevant to the ultimate issues at trial.

The Court finds that these commentaries and opinions fall wholly outside of Dr. Willner’s

proffered area of expertise and are prejudicial and irrelevant. Additionally, they are merely

subjective belief and unsupported speculation. Accordingly,

IT IS ORDERED that, to the extent Defendants seek to exclude Dr. Willner’s statements

and commentary regarding the use of the term “Offender Simmons” and his references to Simmons

as “literally a prisoner with no power,” the motion is GRANTED, and that testimony is

EXCLUDED.

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G. Statements and Commentary Questioning other Witnesses Veracity.

Defendants move to exclude Dr. Willner’s statements and commentary questioning

the veracity of other witnesses. Defendants state that, at various times throughout his report, Dr.

Willner opines that the nurses’ notes are “miraculous” “regurgitated,” and “impossible.” [Id., p. 4

and repeating]. Defendants contend that the TPDC nursing staff are fact witnesses in this matter,

and Dr. Willner is not permitted to testify specifically as to their credibility because their credibility

is to be determined by the jury, citing Henson v. Odyssea Vessels, Inc., No. 07-613, 2008 WL

449726, at *2 (E.D. La. Feb. 15, 2008). Defendants therefore seek to exclude Dr. Willner from

addressing their credibility in such a prejudicial and biased manner, and to limit his testimony to

the contents of the records and his medical opinions relating thereto.

Simmons responds that Defendants are simply picking out words but do not address the

context in which those words were written. Simmons states that Dr. Willner is pointing out that

many of the chart entries are exact duplicates rather than individualized charting, so in effect they

are regurgitated. Simmons states that Dr. Willner is merely asserting that the charting was

inadequate and unacceptable and not likely to lead to continuity of health care. Simmons contends

that unindividualized chart entries are in fact relevant to the ultimate issues in the case. Simmons

concludes that the jury is well able to determine whether or not Dr. Willner is a credible witness

and if his words are an accurate reflection on the charting.

The Court finds that, although Dr. Willner is allowed to express his opinions in the area in

which he is qualified as an expert, he is not allowed to attack the credibility or veracity of other

fact witnesses, especially in such an insulting, derisive, and offensive manner.

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“While expert testimony may be used to ‘assist the trier of fact to understand the evidence

or to determine a fact in issue,’ Fed. R. Evid. 702, an expert witness may not usurp the jury’s

function to weigh evidence and make credibility determinations.” United States v. Farrell, 563

F.3d 364, 377 (8th Cir. 2009). Accordingly,

IT IS ORDERED that, to the extent Defendants seek to exclude Dr. Willner from making

statements and expressing commentary addressing the credibility and veracity of other witnesses,

the motion is GRANTED, that testimony is EXCLUDED, and Dr. Willner is LIMITED to

testifying as to the contents of the records and his medical opinions relating thereto.

H. Unnecessary and Biased Statements and Commentary

Defendants move to exclude Dr. Willner’s allegedly unnecessary and biased statements

and commentary found throughout the report. Defendants state that Dr. Willner unnecessarily uses

prejudicial language, referring to the TPDC staff and even other treatment providers as, amongst

other things, “callous,” “insensitive,” and “inhumane.” [Id., pp. 25, 26]. Defendants further state

that, in contrast, he refers to Simmons’ injuries in the most grave and serious of tones and calls his

treatment “unconscionable.” [Id., p. 28]. Defendants quote from Shawler v. Ergon Asphalt &

Emulsions, Inc., “[m]uch of [this] report reads more like proposed findings of fact favorable to

[Plaintiff] than an expert’s reliable application of specialized knowledge to the facts of the case.”

No. 15-2599, 2016 WL 1019121, at *11 (E.D. La. Mar. 15, 2016), aff’d sub nom. Shawler v. Big

Valley, L.L.C., 728 F. App’x 391 (5th Cir. 2018). Defendants conclude that Dr. Willner’s

prejudicial and biased adjectives and descriptors are irrelevant, and Defendants therefore seek to

exclude him from expressing them before the jury at the trial of this matter.

Simmons responds that, taken out of context, these words may appear to be prejudicial or

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conclusory, but they are merely hyperbole used for emphasis to criticize the medical care provided

to him. Simmons states that, in essence, the words are simply an emphatic criticism of the

health care provided to him and therefore should be admissible.

The Court finds that the hyperbolic language used by Dr. Willner throughout his report is

irrelevant and of no help to the jury. “‘If an expert’s testimony does nothing more than attorneys

can do in final arguments, it is not admissible because it is providing not knowledge, but mere

opinion and advocacy.’” Cage, 979 F. Supp. 2d. 787, 835 (quoting David H. Kaye, David E.

Bernstein and Jennifer L. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence,

§ 2.1.2). Accordingly,

IT IS ORDERED that, to the extent Defendants move to exclude Dr. Willner’s prejudicial

and biased adjectives and descriptors, the motion is GRANTED, and such testimony is

EXCLUDED.

I. CONCLUSION

For the foregoing reasons, Defendants’ Motion in Limine/Daubert Motion [Doc. No. 26]

is GRANTED IN PART and DENIED IN PART.

MONROE, LOUISIANA, this 14" day of February 2022.

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TE A. DOUGHTY~

UNITED S ‘ES DISTRICT JUD

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