Cox v. Callaway County, Missouri

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

CASSANDRA COX, )

)

Plaintiff, )

)

v. ) Case No. 2:18-cv-04045-NKL

)

CALLAWAY COUNTY, MISSOURI, et )

al., )

)

Defendants. )

)

ORDER

Pending before the Court are Plaintiff Cassandra Cox’s Motion to Exclude Certain

Opinions of Dr. Conrad Balcer, Doc. 149, and Defendants’ Motion to Exclude Testimony of Dr.

Joel Blackburn, Doc. 154. For the following reasons, Plaintiff’s motion to exclude Defendants’

expert’s opinions, Doc. 149, is granted in part and denied in part, and Defendants’ motion to

exclude Plaintiff’s expert’s opinions, Doc. 154, is granted in part and denied in part.

I. Background

Plaintiff Cassandra Cox filed suit against defendants Callaway County, Missouri; the

Callaway County Sheriff’s Department; and various employees of the Callaway County Sheriff’s

Department in their individual and official capacities. Doc. 132 (First Amended Complaint). The

lawsuit arises out of Cox’s arrest by the Fulton Police Department for suspected possession and

use of illegal drugs including methamphetamines, and her subsequent transfer to the Callaway

County Jail. On February 28, 2016, while in the custody of Defendants, Cox required emergency

medical assistance. Cox alleges that she suffered from a seizure and heart attack which was caused

because the Defendants ignored her serious health condition, resulting in severe and permanent

damage to her heart and brain. Plaintiff seeks to present the expert opinion of Dr. Joel Blackburn

and Defendants seek to present the expert opinions of Dr. Conrad Balcer. Each has moved to strike

the testimony of their opponent’s expert.

II. Discussion

Federal trial judges have “broad discretion” in making decisions about the admissibility of

expert testimony. Bradshaw v. FFE Transp. Servs., Inc., 715 F.3d 1104, 1107 (8th Cir. 2013).

Under Federal Rule of Evidence 702 and the guidance set forth in Daubert, expert testimony

should be liberally admitted. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th Cir.

2014) (citing U.S. v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (holding that doubts about

usefulness of expert testimony are resolved in favor of admissibility)); Robinson v. GEICO Gen.

Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (holding that expert testimony should be admitted if

it “advances the trier of fact’s understanding to any degree”); Lauzon v. Senco Prods., Inc., 270

F.3d 681, 686 (8th Cir. 2001) (Rule 702 “clearly is one of admissibility rather than exclusion”).

“As long as the expert’s . . . testimony rests upon ‘good grounds, based on what is known’ it should

be tested by the adversary process with competing expert testimony and cross-examination, rather

than excluded by the court at the outset.” Id. (citing Daubert, 509 U.S. at 590, 596). Exclusion of

expert opinion is proper “only if it is so fundamentally unsupported that it can offer no assistance

to the jury.” Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997).

Even so, pursuant to Daubert, the Court’s role as “gatekeeper” in determining the

admissibility of expert testimony requires the Court to conduct “a preliminary assessment of

whether the reasoning or methodology underlying the testimony is scientifically valid and of

whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93. “The main purpose of Daubert

exclusion is to prevent juries from being swayed by dubious scientific testimony.” In re Zurn Pex

Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). This question of whether “an

expert’s testimony both rests on a reliable foundation and is relevant to the task at hand” is known

as the “reliability and relevancy” test. Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir.

2012) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)).

When making the reliability and relevancy determinations, a court may consider: (1)

“whether the theory or technique can be or has been tested”; (2) “whether the theory or technique

has been subjected to peer review or publication”; (3) “whether the theory or technique has a

known or potential error rate and standards controlling the technique’s operation”; and (4)

“whether the theory or technique is generally accepted in the scientific community.” Russell, 702

F.3d at 456 (citing Daubert, 509 U.S. at 592–94). The Daubert standard is “flexible” and the above

factors are guidelines rather than “a definitive checklist.” Jaurequi v. Carter Manufacturing

Company, Inc., 173 F.3d 1076, 1082 (8th Cir. 1999). The expert’s testimony must at the very least

satisfy “the same level of intellectual rigor that characterizes the practice of an expert in the

relevant field,” but “whether Daubert’s specific factors are, or are not, reasonable measures of

reliability in a particular case is a matter that the law grants the trial judge broad latitude to

determine.” Kumho Tire, 526 U.S. at 151, 153. The party seeking to admit expert testimony has

the burden of establishing the admissibility of their experts’ testimony by a preponderance of the

evidence. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (citing Daubert, 509

U.S. at 592).

A. Plaintiff’s Motion to Exclude Dr. Conrad Balcer

Dr. Conrad Balcer is a licensed cardiologist with over thirty years of medical experience.

See Doc. 150-2 (Dr. Balcer’s C.V.). Plaintiff seeks to exclude certain opinions of Dr. Balcer,

generally described as opinions related to “Fit for Confinement” examinations and specifically,

the standard of care for “Fit for Confinement” examinations, the appropriateness of the

correctional officers and Callaway County Jail’s response to Cox’s condition while she was in the

custody there, and what in fact her condition was during that time.

Plaintiff argues that Dr. Balcer has not reviewed the necessary evidence nor does he have

the relevant qualifications such as education or experience in training correctional officers,

providing care to inmates, or in performing Fit for Confinement examinations. Defendants have

stated that Dr. Balcer “does not attempt to offer opinions regarding the actions of the Callaway

County Jail employees,” but rather he “limits his opinion to medical issues for which he is a trained

expert.” Doc. 163, at 1, 3.

The nebulous nature of Plaintiff’s arguments requires the Court to look at the specific

opinions identified by Plaintiff rather than all opinions that might relate to the conduct of the

Callaway County defendants. The Court turns first to Dr. Balcer’s statement that, “[g]iven this

patient’s age and lack of complaint, I would be less likely to believe a ‘Fit for Confinement’

examination was required.” Pl.’s Ex. 12-1, at 2. Dr. Balcer’s opinion about how Cox would likely

have appeared to the staff at the Callaway County jail is based on Cox’s medical records and Dr.

Balcer’s expertise as a doctor. While Dr. Balcer’s has no experience with how correctional officers

should respond, his opinion of how a medical expert would evaluate the condition of Cox is

relevant and potentially helpful to a jury. However, a correctional officer knows the risks of being

incarcerated and Dr. Balcer does not. Therefore, the Court will permit Dr. Balcer to testify whether

he, as a medical profession confronted with these symptoms, would recommend a medical

examination. If a doctor would not seek an exam, a correctional officer is less likely to have

understood the seriousness of Cox’s medical condition. But the Court will not permit Dr. Balcer

to testify that a “Fit for Confinement” examination was needed. That specific examination requires

some knowledge about the unique risks of prison life which Dr. Balcer does not have.

Plaintiff also takes issue with Dr. Balcer’s statement that “[m]y opinion regarding Ms.

Cox’s medical condition . . . is that on February 26, 2016, she was arrested and, based upon her

jail intake form, was given an opportunity to request medical care and did not avail herself of this.”

Pl.’s Ex. 12-1, at 5. Again, Dr. Balcer can properly opine about how Cox would likely have

appeared when she came to the Calloway County jail, and the nature of her medical events while

she was there. However, he also seeks to testify that Cox was given an opportunity to request

medical care and she did not avail herself of medical care. The latter “opinion”, regardless of how

it is characterized, is unlikely to be helpful to the jury. While experts can normally rely on their

own interpretation of the facts, if those facts are crucial and the expert does not explain how he

decided to adopt those facts, the opinion is more likely to mislead the jury than to be helpful. Clark

v. Takata Corp., 192 F.3. 750 (7th Cir. 1999). Second, Dr. Balcer is no better qualified to decide

this issue than is the jury. Assuming that the basis for his conclusion is that a Calloway County

employee asked Cox if she wanted medical care and she was nonresponsive, there is nothing about

his conclusion that is based on his medical expertise. As such, this opinion is not helpful to the

jury and is not admissible.

Plaintiff also argues that Dr. Balcer has neither the qualifications nor did he review the

necessary evidence to offer an opinion regarding the “standard of care” for a “Fit for Confinement”

examination. Plaintiff takes particular issue with Dr. Balcer’s use of a Google and literature search

in supporting his opinion. Dr. Balcer need not have reviewed all the evidence in this case, it is

enough that his opinion is based on his expertise and would be helpful to the jury. Dr. Balcer did

not appear to rest his opinion on the standard of care for “Fit for Confinement Examinations”

solely on a Google search, and he explicitly stated that, in addition to his online literature search,

his opinion was based on the fact that “[i]n [his] experience and observation, there is no standard

of care for a ‘Fit for Confinement Examination.’” Pl.’s Ex. 12-1, at 1. An expert opinion should

not be discredited because an expert decides to provide additional support beyond her experience

and observation by also conducting an online review of the literature in the field. Further,

Plaintiff’s own expert appears to agree with Dr. Balcer on this point. As such, Dr. Balcer’s opinion

on the standard of care is admissible.

Lastly, Plaintiff asserts that Dr. Balcer’s opinion on Plaintiff’s medical condition from

when she was first arrested on February 26, 2016 to when she required emergency assistance on

February 28, 2016 is unreliable. Plaintiff contends that Dr. Balcer’s failure to review all of the

evidence—including the depositions of the correctional offers or documents from the Callaway

County Jail—leaves Dr. Balcer with insufficient factual support for his opinion and therefore

undermines his ability to criticize Plaintiff’s expert’s opinion. As explained above, Dr. Balcer need

not have reviewed all of the evidence to have an admissible opinion so long as it would be helpful

to a jury. Dr. Balcer relied on his expertise and a review of the medical records to reach his

conclusion about her likely condition and symptoms during the relevant time period, and his

opinion to that extent is admissible.

B. Defendants’ Motion to Exclude Dr. Joel Blackburn

Dr. Joel Blackburn is a board-certified doctor with more than twenty years of experience

including experience in correctional medicine. Plaintiff seeks to admit the opinion of Dr.

Blackburn regarding Plaintiff’s medical issues, the alleged policy and procedural violations by

Defendants in their care and treatment of Plaintiff, and Defendants’ alleged deliberate indifference

to Plaintiff’s medical needs. Defendants seek to exclude the opinions of Dr. Blackburn for being

beyond his scope of expertise, for lacking evidentiary foundation, and for being of no help to the

jury.

Defendants argue that Dr. Blackburn lacks the requisite expertise to state admissible

opinions regarding whether the actions of Callaway County employees violated policies,

constituted deliberate indifference, or qualified as a breach of a ministerial duty. As to opinions on

purported violations of Callaway County’s policies, Defendants assert that Dr. Blackburn’s

opinion on whether any given policy was violated does not qualify as a medical opinion, and is

merely his personal interpretation based on a plain reading of the meaning of each policy. Allowing

the opinion of an expert is appropriate when it relates to “issues that are beyond the ken of people

of ordinary experience.” United States v. Clapp, 46 F.3d 795, 802 (8th Cir. 1995) (quoting United

States v. French, 12 F.3d 114, 116 (8th Cir.1993)). However, “[w]here the subject matter is within

the knowledge or experience of laymen, expert testimony is superfluous.” Id.

In addition to his general medical experience, Dr. Blackburn has specialized knowledge in

the field of correctional medicine. Dr. Blackburn served as Medical Director for Boone County

Jail for over ten years, and in this role established protocols, policies, and procedures for the

medical care of inmate patients. Pl.’s Ex. 12-5, Pl’s Exhibit 12-4, at 3. In Dr. Blackburn’s opinion,

the alleged policy and procedure violations were possible because many of Callaway County Jail’s

employees were insufficiently trained in understanding these policies. There is evidence that some

employees did not fully understand these policies, and it is likely a jury would face similar

challenges when interpreting these policies. See, e.g., Ripsch Dep., Pl.’s Ex. 13-5, 86; Shoemaker

Dep., Pl.’s Ex. 13-3, 63–71; McCown Dep., Pl.’s Ex. 13-4, 100–102. An informed opinion based

on specialized experience with the internal medical policies of a jail would be helpful for

explaining the intended meanings and requirements of the policies in question to a jury. As Dr.

Blackburn’s testimony has “a reliable basis in [his] knowledge and experience of [the relevant]

discipline,” this opinion is admissible. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).

Next, as to Dr. Blackburn’s opinions regarding whether the action of employees constituted

deliberate indifference or ministerial duty, Defendants assert that Dr. Blackburn lacks the requisite

experience and education to offer an opinion on these matters and that an opinion on these matters

would be inadmissible legal conclusions. Generally, “questions of law are the subject of the court’s

instructions and not the subject of expert testimony.” United States v. Klaphake, 64 F.3d 435, 438

(8th Cir. 1995). Plaintiff cites to Helfin v. Stewart County, Tennessee as evidence of at least one

instance where an expert was allowed to testify about whether conduct was deliberately indifferent.

Heflin v. Stewart Cty., Tenn., 958 F.2d 709, 715 (6th Cir. 1992). Defendants cite instead to Berry

and Woods as examples where testimony using the legal term deliberate indifference was excluded.

Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994); Woods v. Lecureux, 110 F.3d 1215 (6th Cir.

1997) Taken together, “[a]lthough Heflin indicates that district courts can exercise some discretion

in determining whether the proffered testimony is helpful to the jury, Berry teaches that a district

court abuses its discretion when it allows a witness to define legal terms, especially terms that

carry a considerable amount of legal baggage.” Woods, 110 F.3d at 1220. Unfortunately, the

dividing line between “legal baggage” and helpful opinions is not always clear.

In the Eighth Circuit, expert testimony containing a legal conclusion is generally not

admissible. Peters v. Woodbury Cty. Iowa, 979 F. Supp. 2d 901, 922 (N.D. Iowa 2013).

Specifically, “deliberate indifference” is not the kind of “commonly used” language or medical

terminology that might be helpful to a jury. Cf. U.S. v. Two Eagle, 318 F.3d 785, 792–93 (8th Cir.

2003) (finding commonly used language permissible). However, Dr. Blackburn’s testimony need

not be excluded in its entirety. For example, he can opine on whether the Callaway County Jail

employees showed a lack of concern for plaintiff’s medical needs or whether those employee’s

duties and actions were mandated by the policies in place or not. But Dr. Blackburn may not opine

on whether Defendants were deliberately indifferent or breached a ministerial duty.

Defendants also argue that Dr. Blackburn’s opinion on causation lacks evidentiary support

as it incorrectly assumes that Plaintiff suffered from tachycardia throughout the time she was in

the custody of Callaway County Jail, despite the fact that evidence suggests she was not suffering

from tachycardia when first transferred to Callaway County Jail, and Plaintiff therefore cannot

assert that her obvious medical condition should have been noticed and treated earlier. See PL.’s

Ex. 13-2, at 113 (statement by Dr. Blackburn that tachycardia is determined by having a heart rate

over 100 beats per minute); Pl.’s Ex. 10-2, at 1 (noting Plaintiff’s heart rate as being 82, 84, and

84 at three time points on the morning she was transferred to Callaway County Jail). But Dr.

Blackburn’s opinion does not rest solely on whether Plaintiff presented with tachycardia the

morning of her arrest, nor have Defendants shown that the evidence can only support a finding

that there were no symptoms at any point for which Plaintiff should have received medical care.

Dr. Blackburn’s opinion states that he believes Plaintiff was suffering from tachycardia and other

noticeable symptoms at the time she was transferred to Callaway County Jail as well as throughout

her time under Defendants supervision, that Defendants should have noticed these symptoms, and

that earlier medical attention could have prevented Plaintiff’s injuries. Pl.’s Ex. 13-2, at 127–128,

178; Pl.’s Ex. 12-4, at 11, 20–22. Though Defendants may disagree with Plaintiff and Dr.

Blackburn’s interpretation of the facts, Dr. Blackburn explains the basis of his opinion and his

explanation would be helpful to the jury because of his medical expertise, even if one aspect of his

opinion is disputed. Defendants can cross examine Dr. Blackburn at trial about this alleged

deficiency, but Dr. Blackburn’s opinion on causation is admissible.

Defendants additionally argue that Dr. Blackburn’s opinions on implicit or subconscious

employee bias should be excluded as irrelevant. Defendants contend that implicit bias is

subconscious and this is a case about deliberate indifference which requires a conscious disregard

for a known medical need. Plaintiff responds that Dr. Blackburn’s opinions regarding implicit

bias are relevant to her failure to train claim because according to Dr. Blackburn, implicit bias is

known to cause worse medical care and Defendants’ failure to address this known danger is

evidence of deliberate indifference to the health of their inmates.

“To be individually liable for failing to train [] subordinates, [an official] must have

received notice of a pattern of unconstitutional acts committed by subordinates, demonstrated

deliberate indifference to or tacit authorization of the offensive acts, and failed to take sufficient

remedial action—and the failure must have proximately caused [plaintiff's] injury.” Audio

Odyssey, Ltd. v. Brenton First Nat'l Bank, 245 F.3d 721, 742 (8th Cir. 2001) (quotation marks and

citation omitted). Plaintiff effectively claims, without legal authority, that Defendants’ conscious

choice not to provide implicit bias training is a constitutional violation when medical needs are not

met by the Calloway County employees. While such training is a laudable practice, the Court

cannot say that the failure to provide implicit bias training is evidence of deliberate indifference

on this record. There is no evidence that has been presented to the Court that subordinates in the

Calloway County system were denying medical care to inmates because their implicit bias was

causing them to do so, much less that Calloway County was aware of specific instances when this

was happening. To suggest that every injury that an inmate sustains as a result of not getting

appropriate medical care is a constitutional violation because no implicit bias training was

provided would upend the deliberate indifference standard firmly established by the Supreme

Court.

Dr. Blackman’s opinion on implicit bias is inadmissible as it is more likely to confuse

rather than help the jury.

III. Conclusion

For the reasons discussed above, Plaintiff’s motion to exclude Defendants’ expert, Doc.

149, is granted in part and denied in part, and Defendants’ motion to exclude Plaintiff’s expert,

Doc. 154, is granted in part and denied in part.

s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: April 2, 2020

Jefferson City, Missouri