MICHAUX v. TEMAS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JASON MICHAUX, JANAYE MICHAUX-

ORRIS, CO-ADMINISTRATORS OF THE ) 2:17-CV-01241-JFC

)

ESTATE OF GREGORY MICHAUX;

) JUDGE JOY FLOWERS CONTI

Plaintiffs, ) )

)

vs. )

)

WARDEN JOHN TEMAS, IN HIS )

OFFICIAL AND INDIVIDUAL )

CAPACITIES; CORRECTIONAL )

OFFICER ADAM SMITH, IN HIS )

OFFICIAL AND INDICIDUAL )

)

CAPACITIES; CORRECTIONAL

)

OFFICER SHAWN SCHULTZ, IN HIS )

OFFICIAL AND INDICIDUAL )

CAPACITIES; CORRECTIONAL )

OFFICER MELVIN GRAY, IN HIS )

OFFICIAL AND INDICIDUAL )

CAPACITIES; CORRECTIONAL )

)

OFFICER JONATHAN BLEDNICK, IN

)

HIS OFFICIAL AND INDICIDUAL )

CAPACITIES; CAPTAIN MICHAEL )

KING, IN HIS OFFICIAL AND )

INDIVIDUAL CAPACITIES; NURSE )

CHERYL MCGAVITT, IN HER OFFICIAL )

)

AND INDIVIDUAL CAPACITIES; NURSE

)

GEORGENE HEPPLE, IN HER OFFICIAL

)

AND INDIVIDUAL CAPACITIES AS )

EMPLOYEE/AGENT OF SOUTHWEST )

BEHAVIORAL CARE, INC.; AND )

DEPUTY WARDEN EDWARD STRAWN, )

IN HIS OFFICIAL AND INDIVIDUAL )

)

CAPACITIES;

)

)

Defendants,

OPINION

I. Introduction

This case arises from the suicide of Gregory Michaux (“Michaux”) on September 26,

2015, at the Washington County Correctional Facility (the “WCCF” or “jail”). Pending before

the court are Daubert motions,1 filed on behalf of defendant Georgine Hepple (“Hepple”), a

psychiatric nurse employed by Southwest Behavioral Care, Inc. (“Southwest”) (ECF No. 56),

and the correctional officer defendants2 (ECF No. 57), to preclude the expert report and

testimony of A.E. Daniel, M.D. (“Dr. Daniel”). The court held a Daubert hearing on July 31,

2019. Also pending are post-hearing motions filed by plaintiffs’ counsel for leave to file a

fourth amended complaint (ECF No. 66) and to reopen discovery (ECF No. 67). All motions are

fully briefed and ripe for decision.

II. Procedural History

Jason Michaux and Janaye Michaux-Orris, as co-administrators of the Estate of Gregory

Michaux (the “estate” or “plaintiffs”), filed the initial complaint on September 25, 2017. After

defendants filed a motion to dismiss, plaintiffs filed an amended complaint on March 6, 2018.

Defendants renewed their motion to dismiss and plaintiffs filed a second amended complaint.

The court struck this pleading because plaintiffs failed to obtain leave of court, as required by

Federal Rule of Civil Procedure 15(a)(2) (ECF No. 19). Plaintiffs sought leave to file another

amended complaint, which the court denied without prejudice after a hearing and argument.

Minute Entry of May 31, 2018. The court entered a case management order (“CMO”) setting a

1 Daubert motions challenge the admissibility of expert testimony. See generally, 29 Wright &

Gold, Federal Practice and Procedure §§ 6262-6270 (2d ed. 2016).

2 The third amended complaint names as correctional defendants in their official and individual

capacities: WCCF Warden John Temas (“Temas”), Deputy Warden Edward Strawn (“Strawn”),

Correctional Officers Adam Smith (“Smith”), Shawn Schultz (“Schultz”), Melvin Gray

(“Gray”), Jonathan Blednick (“Blednick”), Captain Michael King (“King”) and nurse Cheryl

McGavitt (“McGavitt”) (ECF No. 32).

deadline of June 29, 2018, for amending the pleadings and joinder of new parties (ECF No. 25).

On August 2, 2018, the court granted plaintiffs’ motion for leave to file a third amended

complaint, even though the deadline in the CMO had expired (ECF No. 30). The third amended

complaint is the operative pleading in this case. It added three new defendants on August 13,

2018 (ECF No. 32). Defendants filed answers to the third amended complaint (ECF Nos. 34,

43).

The third amended complaint contains the following claims:

• Count I against all defendants, except for Warden Temas, in their individual and

official capacities pursuant to 28 U.S.C. § 1983 for violation of Gregory

Michaux’s constitutional rights while he was a pretrial detainee at the jail for

deliberate indifference in failing to prevent his suicide;

• Count II against Warden Temas in his individual and official capacity pursuant to

28 U.S.C. § 1983 for Monell liability and supervisory liability;

• Count III against all defendants in their individual capacities brought as a state

law survival action pursuant to 20 Pa. Cons. Stat. § 3372 and 42 Pa. Cons. Stat. §

8302; and

• Count IV against all defendants in their individual capacities for wrongful death

under Pennsylvania law.

At the Daubert hearing, the court expressed concern that the claims and legal theories

were not clearly identified. Plaintiffs’ counsel offered to submit a document to clarify them.

The court permitted this opportunity, over defendants’ objections. Tr. 56-57. In his post-hearing

clarification (ECF No. 63), plaintiffs’ counsel explained that the third amended complaint

asserted the following claims:

1. Correctional officers Smith, Shultz, Gray and Blednick were actually aware of Michaux’s

particular vulnerability to suicide, due to: (a) torn bedsheets; (b) communications with

counselors and nurses who treated him; and (c) the writings in his journal, which the

officers were obligated to read, as pleaded in ¶¶ 46-50.

2. Captain King and Deputy Warden Strawn exhibited deliberate indifference by failing to:

(a) prevent Michaux’s suicide; (b) notify corrections officers, physician, counselor or

warden that he was suicidal; (c) get him proper medical care; (d) supervise the

corrections officers, nurses and counselor; and (e) require the staff to read

journals/notebooks kept by inmates in the segregated housing unit (“SHU”), as pleaded in

¶ 53.

3. Nurses McGavitt and Hepple were deliberately indifferent by failing to: (a) prevent

Michaux’s suicide; (b) notify the corrections officers, physician, counselor or warden that

he was suicidal; (c) get him proper medical care; (d) take action to get Michaux a

consultation with a psychiatrist sooner; (e) read his journal or ask what he was writing in

it; (f) learn of prior suicide attempts or torn bed sheets; and (g) observe that Michaux had

a strong vulnerability to suicide, which would have been obvious to any lay person, as

pleaded in ¶¶ 51-52.

4. Warden Temas (a) permitted a custom and practice of failing to ensure that inmate

medical findings of suicidality were communicated to the corrections officers; (b)

permitted a widespread practice of nurses and counselors failing to share inmates’

vulnerability to suicide with corrections officers; (c) failed to provide appropriate suicide

prevention training; and (d) failed to require staff to read jounals/notebooks kept by

inmates in the SHU, as pleaded in ¶¶ 59-60.

On October 23, 2019, plaintffs filed a further clarification of their claims to incorporate ¶¶ 40-45

of the third amended complaint and delete two sentences in ¶ 46 (relating to videosurveillance

cameras) (ECF No. 75).

The fact discovery deadline was December 31, 2018, almost seven months after the case

management order entered on June 4, 2018. Plaintiffs’ counsel did not propound any

interrogatories or document requests or notice any depositions prior to the deadline. The court

granted plaintiffs a one-month extension, until January 30, 2018, to complete depositions. No

other discovery was permitted. (Minute Entry, November 15, 2018). Plaintiffs’ counsel tried to

evade this limitation by serving subpoenas duces tecum, to which defendants objected. In

January 2018, plaintiffs’ counsel filed motions for additional discovery and sanctions, which the

court denied because he failed to serve timely written discovery. In particular, the court denied

as moot plaintiffs’ motion to compel production of an inmate appointment log book, because it

could not be located, and denied plaintiffs’ motion for sanctions. (Minute Entry, March 21,

2019). The parties were directed to complete expert reports and discovery pursuant to the CMO

deadlines.

Dr. Daniel prepared an expert report on March 19, 2019. (ECF No. 57-2). Defendants

obtained responsive expert reports. On May 6, 2019, Dr. Daniel submitted a rebuttal to the

reports prepared by defendants’ experts (ECF No. 57-3). The deadline to complete expert

discovery, including expert depositions, was June 6, 2019. Dr. Daniel was deposed on June 3,

2019 (ECF No. 57-4).

On June 20, 2019, defendants filed timely Daubert motions, which were fully briefed.

The court held a Daubert hearing on July 31, 2019, at which it raised significant concerns about

the reliability, “fit,” and underlying lack of evidence to support Dr. Daniel’s opinions. On

September 4, 2019, plaintiffs’ counsel filed the pending motions to amend the complaint and

reopen discovery.

III. Motions to amend complaint and reopen discovery

Plaintiffs do not seek to amend their claims or change the named defendants. Instead, they

seek leave to amend the complaint to assert new facts, i.e., that sheets with which Michaux tried

to kill himself should have been visible to correctional officers through a window in the cell door

during six previous suicide attempts. Plaintiffs aver that they first learned these facts from

photographs produced in discovery. (ECF No. 66-1).

Defendants object strenuously and represent that those photographs were produced to

plaintiffs’ counsel 16 months before the motion, on May 11, 2018, as part of their initial

disclosures. (ECF No. 68). Defendants contend that plaintiffs failed to establish good cause for

their belated requests and argue that amendment would be unjust, prejudicial and futile.

Plaintiffs also seek to reopen fact discovery on the issue of the missing inmate appointment

log book and ask the court to postpone ruling on the Daubert motions for 60 days to enable that

additional discovery to occur. (ECF No. 67). Although unstated, but implied, plaintiffs want to

reopen expert discovery to permit Dr. Daniels to submit new opinions based upon any

information gleaned from this discovery. Defendants pointed out in their Daubert motions that

Dr. Daniel does not have a factual basis to opine that nurses McGavitt or Hepple had a duty to

schedule a follow-up appointment. In the Daubert hearing, the court was receptive to that

contention. Plaintiffs seek to remedy that apparent flaw.

Defendants vigorously oppose the motion to reopen discovery as an untimely attempt to

bolster Dr. Daniel’s expert opinion after the close of fact and expert discovery in response to the

criticisms raised in the Daubert hearing. Defendants contend that plaintiffs had ample

opportunity to obtain this information during discovery, but failed to do so. Fed. R. Civ. P.

26(b)(2)(C)(ii). Plaintiffs failed to ask about the follow-up appointment, did not request the

deposition of the prison psychiatrist, Dr. Ravi Kolli (“Dr. Kolli”), and failed to ask about the

location of the appointment book until after the close of discovery. Defense counsel represented

that they looked for the log book, but it was lost when the county changed medical providers

away from Southwest. Tr. of February 6, 2019 hearing (ECF No. 69-1 at 72).

Defendants also contend that the missing appointment book is not important, because it is

clear from the evidentiary record that Michaux was, in fact, scheduled to be seen by the

psychiatrist. McGavitt testified in her deposition that she knew, as a fact, that the appointment

book contained a notation for Michaux to be seen. McGavitt Deposition at 51-52 (explaining

that if an inmate’s appointment was postponed because others had a higher priority, the

appointment would be bumped to the next week until he was seen).

There is an interplay between Federal Rules of Civil Procedure 15 and 16 when a party seeks

amendment late in the case. A party may amend a pleading after a responsive pleading was

served only by leave of court or by written consent of the adverse party. The court should

“freely give leave when justice so requires.” Fed. R. Civ. P. 15(a). On the other hand, the court's

case management deadlines may not be modified except upon a showing of “good cause” and the

judge’s consent. Fed. R. Civ. P. 16(b)(4).

Leave to amend may be denied based on undue delay, bad faith, dilatory motive, prejudice,

or futility. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). In

Dimensional Communications, Inc. v. OZ Optics, Ltd., 148 F. App'x 82 (3d Cir. 2005), the court

affirmed that a failure to satisfy Rule 16(b)'s “good cause” requirement was sufficient to deny a

motion to amend a complaint filed six months after the deadline for amendments to pleadings.

Id. at 85 (citing Eastern Minerals & Chems. Co. v. Mahan, 225 F.3d 330, 340 (3d Cir. 2000)). In

Race Tires America, Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010), the court

of appeals affirmed the district court’s decision to deny leave to amend a pleading for the fourth

time, after the deadline in the case management order, because the plaintiff failed to meet its

burden to demonstrate good cause and due diligence.

The court concludes that plaintiffs failed to meet the good cause requirement or

demonstrate that they acted with due diligence in this case. Plaintiffs did not articulate any

reason for waiting over a year to seek to amend the complaint to assert facts gleaned from the

photographs produced in defendants’ initial disclosures. Indeed, plaintiffs filed their third

amended complaint in August 2018 (three months after receiving the photographs), but failed to

include the averments they now seek to add. Further amendment of the pleadings at this time,

after completion of fact and expert discovery, the filing of four prior complaints, and expiration

of the case management deadlines, would cause undue delay and prejudice to defendants.

Moreover, amendment is of little benefit because new factual averments in a complaint are of

little utility at this stage of the case. Summary judgment motions will not be decided on the

pleadings, but on the admissible evidence developed during discovery. See Fed. R. Civ. P. 56(c);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a party may not rely on its complaint

to defeat a summary judgment motion, but instead must provide probative evidence to create a

genuine issue for trial).

Plaintiffs did not articulate good cause to reopen discovery. The reason they did not learn

about the missing appointment book until Hepple’s deposition on January 14, 2019, was because

their attorney did not engage in reasonable, timely discovery before the deadline expired. In

addition, on March 21, 2019, the court denied their motion to compel discovery of the

appointment book and plaintiffs failed to establish a proper ground for the court to reconsider its

decision. Max's Seafood Cafe, by Lou-Ann, Inc., v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

A belated effort to reopen discovery to bolster a expert opinion, after a Daubert hearing raised

fundamental concerns about the factual basis for that opinion, is not a valid basis to reopen

discovery. Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007) (rejecting a request to

reopen discovery after experts were barred and explaining that litigation does not include a

dress rehearsal or practice run for the losing party). Plaintiffs had four opportunities to file

complaints to set forth their claims and legal theories and had ample time to complete fact and

expert discovery and litigate the Daubert motions.

Defendants would be substantially prejudiced if plaintiffs were permitted to reopen fact and

expert discovery at this late date. Most fundamentally, defendants are entitled to a ruling on their

pending motions, which were timely filed in accordance with the case management order and

which plaintiffs had a full opportunity to litigate. Litigation would never end if the losing party

was allowed to rebut retroactively the flaws identified by defendants and the court. See Winters,

498 F.3d at 743. Defendants invested substantial resources in conducting fact discovery,

obtaining expert witnesses, conducting expert discovery and preparing Daubert motions based

on the evidentiary record developed pursuant to the court’s case management order. These

resources would be wasted if plaintiffs were permitted to reopen discovery and Dr. Daniel (or

another expert) were permitted to offer different opinions. Defendants would be required to

invest additional resources to conduct additional discovery, reevaluate their own experts’

opinions, reevaluate any new opinions offered by plaintiffs’ experts, and relitigate the Daubert

motions. In addition, reopening discovery would cause a substantial delay in deciding this case,

which is already more than two years old. In sum, plaintiffs’ motions would cause undue cost,

delay and prejudice and are not consistent with the just, speedy and inexpensive determination of

this case. See Fed. R. Civ. P. 1.

In sum, the motions for leave to file a fourth amended complaint (ECF No. 66) and to reopen

discovery (ECF No. 67) will be DENIED.

IV. Daubert Motions

Defendants seek to preclude Dr. Daniel’s reports, opinions and testimony in their entirety.

The court summarizes the applicable law and factual record to provide a legal background for its

analysis of Dr. Daniel’s expert opinions.

A. Generally Applicable Standards for Expert Testimony

Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

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

case.

FED. R. EVID. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the

Supreme Court instructed district courts to act as gatekeepers to “ensure that any and all

scientific testimony or evidence admitted is ... reliable.” Id. at 589. The United States Court of

Appeals for the Third Circuit explained that Rule 702 “embodies a trilogy of restrictions” that

expert testimony must meet for admissibility: qualification, reliability and fit. Schneider ex rel.

Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). The party offering the expert

testimony has the burden of establishing each of these requirements by a preponderance of the

evidence. In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999).

1. Qualification

An expert witness's qualification stems from his or her “knowledge, skill, experience,

training, or education.” FED. R. EVID. 702. The witness therefore must have “specialized

expertise.” Schneider, 320 F.3d at 405. The court of appeals interprets the qualification

requirement “‘liberally,’ holding that ‘a broad range of knowledge, skills, and training qualify an

expert as such.’” Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir.

2003) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994)). When

evaluating an expert's qualifications, district courts should not insist on a certain kind of degree

or background. Robinson v. Hartzell Propeller Inc., 326 F.Supp.2d 631, 667 (E.D. Pa. 2004). An

expert's qualifications are determined with respect to each matter addressed in the proposed

testimony. Calhoun, 350 F.3d at 322 (“An expert may be generally qualified but may lack

qualifications to testify outside his area of expertise.”). “While the background, education, and

training may provide an expert with general knowledge to testify about general matters, more

specific knowledge is required to support more specific opinions.” Id.

Dr. Daniel is a licensed psychiatrist and was formerly the Chief of Psychiatry for the

Missouri Department of Corrections. His qualifications as an expert in suicide prevention in

prison are not disputed.3

2. Reliability

In Daubert, the Supreme Court stated that the district court's gatekeeper role requires “a

preliminary assessment of whether the reasoning or methodology underlying the testimony is ...

3 As discussed below, defendants challenge Dr. Daniel’s qualifications to opine about whether

corrections officers should routinely read journals of SHU inmates.

valid and of whether the reasoning or methodology properly can be applied to the facts in

issue.” Daubert, 509 U.S. at 592–93. While the Court noted in Daubert that district courts were

permitted to undertake a flexible inquiry into the admissibility of expert testimony under Rule

702, the court of appeals has enumerated the following eight factors that a district court may

examine:

1. whether a method consists of a testable hypothesis;

2. whether the method has been subjected to peer review;

3. the known or potential rate of error;

4. the existence and maintenance of standards controlling the technique's operation;

5. whether the method is generally accepted;

6. the relationship of the technique to methods which have been established to be reliable;

7. the qualifications of the expert witness testifying based on the methodology; and

8. the non-judicial uses to which the method has been put.

In re Paoli R.R Yard PCB Litigation, 35 F.3d 717, 742 n. 8 (3d Cir. 1994) (“Paoli II”). This list

of factors is a “convenient starting point,” but is “neither exhaustive nor applicable in every

case.” Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806–07 (3d Cir. 1997). Under these

factors, experts are not permitted to engage in a “haphazard, intuitive inquiry,” but must explain

the research and methodology they employed in sufficient detail in order to allow the other

party's expert to test that hypothesis. Oddi v. Ford Motor Co., 234 F.3d 136, 156 (3d Cir. 2000).

Where an expert fails to use standards to control his or her analysis, “no ‘gatekeeper’ can assess

the relationship of [the expert's] method to other methods known to be reliable and the non-

judicial uses to which it has been put.” Id. at 158.

“The evidentiary requirement of reliability is lower than the merits standard of

correctness.” Paoli II, 35 F.3d at 744. “As long as an expert's scientific testimony rests upon

‘good grounds, based on what is known,’ it should be tested by the adversary process—

competing expert testimony and active cross-examination—rather than excluded from jurors'

scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its

inadequacies.” United States v. Mitchell, 365 F.3d 215, 244 (3d Cir. 2004) (quoting Ruiz–Troche

v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998)). This restriction is disputed

by the parties and will be addressed below.

3. Fit

The Rule 702 requirement that testimony “help the trier of fact to understand the

evidence or to determine a fact in issue” is called the “fit” requirement. Fit requires that there be

a “connection between the scientific research or test result to be presented and particular disputed

factual issues in the case.” Paoli II, 35 F.3d at 743. “‘Fit is not always obvious, and scientific

validity for one purpose is not necessarily scientific validity for other, unrelated

purposes.’” Id. (quoting Daubert, 509 U.S. at 591). The standard for fit is “not that high,”

although it is “higher than bare relevance.” Id. at 745. This restriction is disputed by the parties

and will be addressed below.

B. Timeline of Key Events

The following timeline was taken from Dr. Daniel’s report (ECF No. 57-2 at 3-4).

September 2014: Michaux attempted suicide by hanging at WCJ and was on suicide watch.

Dr. Kolli diagnosed him with opioid dependence, antisocial personality

disorder and anxiety disorder.

March 23, 2015: Michaux was detained again at WCJ. A health care screening

questionnaire was prepared (marked “no” for prior suicide attempt).

Michaux denied suicidal ideation, but admitted prior mental health care

and suicide attempt in September 2014.

April 2, 2015: Michaux denied medical clearance to work in the jail due to his history of

suicide attempt, anger issues and blackouts.

April 7, 2015: A nursing note by Hepple reflected Michaux had anxiety, anger and sleep

problems. Michaux denied suicidal ideation.

April 22, 2015: Michaux asked to see a doctor for depression, feeling isolated, anxiety and

sleep problems.

May 5, 2015: Hepple noted Michaux had increased anxiety and agitation.

May 28, 2015: Dr. Kolli evaluated Michaux and diagnosed him with anxiety disorder

(NOS) and Antisocial Personality Disorder. Michaux was started on

doxepin. Michaux denied suicidal ideation. Dr. Kolli noted a follow-up

appointment in 12 weeks.

August 19, 2015: Michaux was placed in the SHU for a disciplinary infraction.

UNDATED: Michaux made entries in his journal.

September 26, 2015: Michaux committed suicide by hanging.

C. Summary of Substantive Law

Prison officials are not required to guarantee that an inmate will not commit suicide.

Palakovic v. Wetzel, 854 F.3d 209, 222 (3d Cir. 2017). On the other hand, if prison officials

know or should know of the particular vulnerability to suicide of an inmate, then the United

States Constitution imposes on them an obligation not to act with reckless indifference to that

vulnerability. Id. The standard of liability requires that there must be a “strong likelihood, rather

than a mere possibility, that self-inflicted harm will occur.” Id.

In this case, all the named defendants are laypersons,4 in that they lack specialized training or

expertise in identifying a suicide risk. Therefore, the “detainee’s strong likelihood of suicide

must be so obvious that a lay person would easily recognize the necessity for preventative

4 Dr. Kolli, the prison pyschiatrist, is not named as a defendant.

action.” Id. (citiations omitted). In addition to the particular vulnerability of the detainee, the

law requires a relatively high level of culpability on the part of prison officials before holding

them accountable, i.e., reckless or deliberate indifference to that “strong likelihood” of suicide.

Id. Mere negligence will not suffice. Id.

The elements of the prima facie case are: “(1) that the individual had a particular

vulnerability to suicide, meaning that there was a strong likelihood, rather than a mere

possibility, that a suicide would be attempted; (2) that the prison official knew or should have

known of the individual’s particular vulnerability; and (3) that the official acted with reckless or

deliberate indifference, meaning something beyond mere negligence, to the individual’s

particular vulnerability.” Id. at 223-24.

D. Application to this Case

As an initial matter, the correctional defendants argue that Dr. Daniel’s use of the terms

“reckless disregard,” “should have known,” and his references to substantial, imminent and

obvious risk of suicide are legal conclusions that would confuse the jury. They argue that Dr.

Daniel’s opinions about a deviation from the standard of care (i.e., negligence) are irrelevant and

confusing because under Palakovic, the risk of suicide must be “so obvious that a layperson

would easily recognize the necessity for preventative action.” Palakovic, 854 F.3d at 222.

Plaintiffs submit that Dr. Daniel’s use of phrases such as “should have known” and “substantial”

can be cured by the jury instructions and represent that Dr. Daniel will comply with the court’s

directive about what phrases he can use. The court will resolve this issue, if necessary, closer to

trial.

Defendants argue that Dr. Daniel’s opinions are speculative, not reliable, and do not “fit” the

evidence. The factual record developed in this case undermines the strength of the claims

against the individual defendants in several respects. With respect to the first prong of the prima

facie case, Michaux did not outwardly demonstrate a particular vulnerability to suicide. He

denied suicidal ideation in his intake screening questionnaire in March 2015 and throughout his

incarceration. See Timeline. Dr. Daniel agreed in his deposition that Michaux expressed

suicidal ideation only by writing in his personal journal. Daniel Deposition at 36, 42.

With respect to the second prong of the prima facie case, Dr. Daniel testified in his

deposition that many of the suicide risk factors were not communicated to the corrections

officers so that they would be aware of Michaux’s susceptibility to suicide. Daniel Deposition at

45. Dr. Daniel opined that the suicide screening questionnaire prepared when Michaux was

booked in March 2015 did not reflect that Michaux (1) had attempted suicide in the WCCF in

September 2014, (2) had a history of mental health care, (3) used psychotropic medication and

(4) was opioid dependent. Daniel Report ¶ 3. Michaux’s denial of suicidal ideation was taken at

face value. Daniel Report ¶ 4. Dr. Daniel would not be able to opine that the prison officials

named as defendants knew or should have known of Michaux’s particular vulnerability. The

corrections officer who conducted the initial screening questionnaire was not named as a

defendant. Daniel Deposition at 123.

With respect to the third prong of the prima facie case, the factual record reviewed by Dr.

Daniel did not demonstrate that each of the named defendants had sufficient contact with

Michaux to support an opinion that they acted with deliberate indifference. For example, Dr.

Daniel recognized that McGavitt was not directly involved in Michaux’s care and had no reason

to know of his risk for suicide. Daniel Deposition at 73, 142. Hepple was only at the WCCF for

four hours per week. Daniel Deposition at 61. She was provided a list of inmates that were

already screened to be seen by her. Daniel Deposition at 63. Some of the corrections officers

named as defendants had little or no contact with Michaux in the SHU. Tr. at 44-45.5 The court

turns to Dr. Daniel’s opinions regarding the named defendants.

1. Nurse McGavitt

There is no evidence reviewed by Dr. Daniel to support an opinion that Nurse McGavitt is

personally liable in this case. In his deposition, Dr. Daniel agreed that McGavitt was not directly

involved in Michaux’s care and she did not know or have reason to know of Michaux’s risk for

suicide. Daniel Deposition at 73, 142. (ECF No 56-1). Because McGavitt did not even know

about Michaux’s vulnerability, Dr. Daniel will not be permitted to testify that McGavitt was

deliberately indifferent to Michaux’s risk for suicide. Any such opinion would not be reliable or

fit.

2. Nurse Hepple

In his report, Dr. Daniel opined that there was an unacceptable delay in responding to

Michaux’s sick call requests in April 2015. Report ¶ 6. During his deposition, Dr. Daniel

testified that Hepple failed by not scheduling an appointment within 24 or 72 hours, and that

there was enough information when she saw Michaux on April 7, 2015, to refer him to Dr. Kolli.

Deposition at 125-26. Dr. Daniel also opined that Hepple erred by failing to schedule a 12-week

follow-up appointment ordered by Dr. Kolli on May 28, 2015. Report ¶ 8.

Hepple argues that Dr. Daniel’s opinions are speculative and do not “fit.” Hepple also

contends that the opinions are not reliable because there is no evidence to support Dr. Daniel’s

5 Defense counsel indicated that this issue will be the basis for summary judgment motions. It is

also relevant to the reliability and fit of Dr. Daniel’s opinions.

opinion that she was responsible to schedule psychiatric appointments or that a failure to

schedule a follow-up appointment caused Michaux’s death.

Dr. Daniel will not be permitted to offer any opinions about a delay in seeing Michaux in

April 2015. Dr. Daniel recognizes that Michaux was seen by Dr. Kolli on May 28, 2015, and put

on medication. See Timeline. There is no evidence that any delay in responding to Michaux in

April 2015 was causally related to his suicide almost six months later. Tr. 51. Such an opinion

would be unduly speculative, not reliable and would not fit.

Daniel’s opinion that Hepple’s failure to schedule a 12-week follow-up appointment in

September caused Michaux’s death is also unduly speculative and does not satisfy the

“deliberate indifference” standard. See Estate of Kempf v. Washington Cty., No. CV 15-1125,

2018 WL 4354547, at *17 (W.D. Pa. Sept. 12, 2018) (“A complaint that a prison or jail medical

official “should have ordered additional observation is no more than a ‘mere disagreement as to

the proper medical treatment’ that does not ‘support a claim of [a constitutional] violation,’ ”

Pearson, 850 F.3d at 543 (citing Lanzaro, 834 F.2d at 346), unless the defendant’s “response so

deviated from professional standards of care that it amounted to deliberate indifference.”).

Dr. Daniel reasons that if Hepple had scheduled the twelve-week follow-up appointment,

Dr. Kolli would have identified a suicidal condition and placed Michaux on a suicide watch.

Daniel Report ¶ 8. This theory is speculative. Twelve weeks from May 28, 2015, would have

been around August 19, 2105, which was about the same time Michaux pled guilty to

disciplinary charges and was sentenced to 60 days in the SHU. There is no evidence that

Michaux’s suicidal condition (shown only by the undated journal) was present at that time. No

one knows when the journal was written and his suicidal ideation began. Daniel Deposition at

34 (“Q: So you don’t know if on or about August 19th he had started writing that journal yet? A:

I don’t know.”).

In addition, there is no evidence reviewed by Dr. Daniel to support an expert opinion that it

was Hepple’s responsibility to schedule Michaux’s twelve-week follow-up appointment. At the

Daubert hearing, plaintiffs’ counsel was unable to provide a factual basis for that opinion. Tr. at

36-40. Dr. Daniel testified in his deposition that it was his personal practice for the psychiatric

nurse to make sure the follow-up appointment happened. See Deposition at 69-75. But there is

no evidence that the WCCF used this same practice, particularly when Hepple was only at the

jail four hours per week. There was a brief reference in Hepple’s deposition that both she and

McGavitt prioritized appointments in the inmate log book, Hepple Deposition at 26, 29, but the

only direct evidence reflects that Hepple had no duty to make the follow-up appointment for

Michaux. Id. at 29 (Q: “[W]ere you obligated to get that follow-up scheduled? A: No, sir.”).

Unless there is contrary evidence, Dr. Daniel would have no factual basis to support his

opinion that Hepple’s failure to schedule a follow-up appointment constituted deliberate

indifference to Michaux’s risk for suicide. Michaux did not submit any requests to be seen after

April 2015, so Hepple had no reason to know that Michaux needed urgent attention. McGavitt

explained in her deposition that if an inmate’s appointment was postponed because others had a

higher priority, the appointment would be bumped to the next week until he was seen. McGavitt

Deposition at 51-52. McGavitt testified that she knew, as a fact, that the appointment book

contained a notation for Michaux to be seen. Id. Plaintiffs did not point to any contrary

evidence. An expert's opinions cannot be based on subjective beliefs or unsupported speculation.

Holbrook v. Lykes Bros. S.S. Co. Inc., 80 F.3d 777, 784 (3d Cir. 1996).

For all these reasons, Dr. Daniel will not be permitted to opine that Hepple was deliberately

indifferent to Michaux’s risk for suicide. Any such opinion would not be reliable or fit.

3. Corrections Officers and Captain King

During his deposition, Dr. Daniel was asked to identify what each individual officer did

that was in reckless disregard of the suicide risk. In response, Dr. Daniel stated: “Captain King

is not responsible.” Deposition at 120. Dr. Daniel explained: “The reckless disregard is by the

system, that the system should have known. . . . I cannot opine on the individual responsibility as

to what [a particular individual] did nor did not do. . . .” Deposition at 120-21. Dr. Daniel

confirmed that he cannot say what each defendant did that was in reckless disregard to the

suicide risk. Deposiiton at 121. Upon follow-up questioning, Dr. Daniel reiterated that all his

opinions regarding the causes of Michaux’s suicide were systemic failures, not the failures or

actions of any individual. 6 Deposition at 122.

The only specific opinion Dr. Daniel offered regarding the named corrections officers

was that the SHU officers acted in reckless disregard by not reading Michaux’s journal because

Michaux had expressed suicidal ideation and made a suicide attempt in the jail the year before.

Daniel Report Opinion 11, Daniel Deposition at 42. Defendants seek to strike this opinion as

speculative, not based on any standards, and outside Dr. Daniel’s expertise.

Dr. Daniel recognized in his expert report that jail staff do not customarily read an

inmate’s writings except when there is a security or escape risk. Report ¶ 11. Dr. Daniel did not

provide an authoritative source for his opinion that the corrections officers should have read

Michaux’s journal, but based it on his knowledge and experience. Tr. 14-15. As the defense

6 Dr. Daniel did identify one individual failure -- the corrections officer who did the suicide

prevention screening questionnaire -- but recognized that person was not named as a defendant in

this case. Deposition at 123.

aptly pointed out, Dr. Daniel had no knowledge or experience in supervising corrections staff.

He was recognized as an expert in suicide prevention in the correctional setting, but not in the

supervision of corrections officers. Tr. 16. Because he does not have the requisite

qualifications, Dr. Daniel will not be permitted to opine that corrections officers should read the

writings of an inmate as a general practice

Another fundamental problem with Dr. Daniel’s opinion is that it relies on 20/20

hindsight. If the officers had reviewed the journal, they would have been concerned about

suicide, but when the suicide risk factors relevant to Michaux were not communicated to the

corrections officers, there was no reason for them to read the journal in the first place. Dr.

Daniel testified in his deposition that many of the suicide risk factors were not communicated to

the corrections officers so that they would be unaware of Michaux’s susceptibility to suicide.

Daniel Deposition at 45. Daniel’s opinion that Michaux was obviously suicidal is based

exclusively on the contents of his journal. Deposition at 36. Dr. Daniel conceded that Michaux

only expressed suicidal ideation in the writings themselves. Deposition at 42. The journal is

undated and there is no evidence that any defendant ever saw it. Deposition at 78. In sum, Dr.

Daniel provides no basis, other than speculation in hindsight, for defendants to have read

Michaux’s journal.

In sum, Dr. Daniel will not be permitted to offer any opinions that the individual

corrections officers or Captain King were deliberately indifferent to Michaux’s risk for suicide.

Any such opinions would not be reliable or fit and Dr. Daniel lacks the qualifications to opine

that corrections staff should read inmate journals as a general practice.

4. Deputy Warden Strawn

Dr. Daniel opined that both Warden Temas and Deputy Warden Strawn were responsible

for the systemic failure to prevent Michaux’s suicide. Daniel Report ¶ 16. This opinion is

inconsistent with the claims alleged in the third amended complaint. Only Warden Temas

allegedly permitted unconstitutional customs and practices to exist, as pleaded in count 2 of the

third amended complaint. The complaint averred that Warden Temas (not Deputy Warden

Strawn) was the final policymaker in the facility. As the court explained during the Daubert

hearing, if this claim against Deputy Warden Strawn is not in the complaint, then the opinions of

Dr. Daniel about those matters would not be relevant or fit. Tr. 57. For the reasons set forth

above, plaintiffs will not be permitted to amend the complaint again.

The claims asserted in the third amended complaint against Deputy Warden Strawn are

virtually identical to the claims against Captain King, whom Dr. Daniel admitted “was not

responsible.” Daniel Deposition at 120. There is no evidence reviewed by Dr. Daniel of any

personal actions or inactions taken by Deputy Warden Strawn. Dr. Daniel, therefore, will not be

permitted to opine regarding systemic failures or deliberate indifference by Deputy Warden

Strawn. Any such opinions would not be reliable or fit.

5. Warden Temas

It is clear that the gravamen of Dr. Daniel’s expert opinion is that Michaux’s suicide was

caused by systemic failures, rather than the failures or actions of any individual. Deposition at

120-22. The precise contours of the alleged systemic failures are not clear. During the Daubert

hearing, the court expressed confusion about the actual theory of the case, and commented that

Dr. Daniel’s opinions would cause confusion for the jury, particularly in light of the difficult

standard to show that a layperson was deliberately indifferent to Michaux’s suicide risk. Tr. 26-

27. Plaintiffs’ counsel responded that he was asserting: (1) a failure to train claim regarding the

initial intake suicide screening, (2) a failure to train about communications between the medical

staff and corrections staff, and (3) a failure to train about reading inmates’ journals in the SHU.

Tr. 46.

The third amended complaint, ¶¶ 59-60, alleges that Warden Temas (a) permitted a

custom and practice of failing to ensure that inmate medical findings of suicidality were

communicated to the corrections officers; (b) permitted a widespread practice of nurses and

counselors failing to share inmates’ vulnerability to suicide with corrections officers; (c) failed

to provide appropriate suicide prevention training; and (d) failed to require staff to read

journals/notebooks kept by inmates in the SHU. Plaintiffs’ post-hearing “clarifications” failed to

shed additional light on these theories. (ECF Nos. 63, 75).

Dr. Daniel opined in his report that Michaux was improperly placed in a segregated cell.

Daniel Report ¶ 10. In his deposition, Dr. Daniel explained that mentally ill patients should not

be placed in segregation, particularly for a minor infraction like fighting, and should not be kept

there for almost 60 days. Deposition at 35. There was no claim asserted in the complaint about

placement in the SHU. These opinions will, therefore, not be permitted because they do not “fit”

the claims asserted in this case.

Dr. Daniel did not attribute the correctional officers’ failure to read Michaux’s journal to

a failure to train. Daniel Report ¶ 11. Dr. Daniel will not be permitted to opine that Warden

Temas was deliberately indifferent to Michaux’s suicide risk for failing to require staff to read

journals/notebooks kept by inmates in the SHU.

Dr. Daniel opined that Warden Temas had ultimate responsibility to ensure proper

communication and training necessary to identify Michaux’s suicide risk and that the failure to

do so constituted deliberate indifference. Daniel Report ¶ 16. Dr. Daniel opined that the WCCF

did not provide any specific training to its staff in performing suicide screening, that training in

identification and recognition of mental illness was inadequate, and that the facility had

substantial problems with coordination of care and communication between correctional staff

and health care staff about vulnerability to suicide. Daniel Report ¶¶ 12, 13, 15. At his

deposition, Dr. Daniel identified the lack of a mechanism to share information between the

health care staff and the corrections staff, and to communicate Michaux’s risk factors.

Deposition at 43-44. These opinions are within Dr. Daniel’s qualifications, based on facts in the

record reviewed by Dr. Daniel, and fit the claims asserted in the third amended complaint against

Warden Temas. Defendants’ motions will be denied as to these opinions.7

7 This ruling is without prejudice to defendants’ ability to file summary judgment motions

regarding the viability of these claims. See, e.g., Berg v. Cty. of Allegheny, 219 F.3d 261, 276

(3d Cir. 2000) (failure to train “can ordinarily be considered deliberate indifference only where

the failure has caused a pattern of violations”); Robinson v. Fair Acres Geriatric Center, 722 F.

App’x 194, 199 (3d Cir. 2018) (“In order for a failure-to-train claim to support Monell liability, a

plaintiff must show ‘that in light of the duties assigned to [the relevant employees,] the need for

more or different training is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the [municipality] can reasonably be said to have

been deliberately indifferent to the need.’”).

Conclusion

For the reasons set forth above, plaintiffs’ motions to reopen discovery and the pleadings

will be denied. Defendants’ Daubert motions to exclude the opinions of Dr. Daniel will be

denied in part, i.e., with respect to his opinions that Warden Temas failed to provide any specific

training to WCCF staff in performing suicide screening, that training in identification and

recognition of mental illness was inadequate, and that the facility had substantial problems with

coordination of care and communication between correctional staff and health care staff about

vulnerability to suicide in Daniel Report ¶¶ 12, 13, 15, and granted in all other respects.

An appropriate order follows.

/s/ Joy Flowers Conti

Joy Flowers Conti

Dated: December 5, 2019 Senior United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JASON MICHAUX, JANAYE MICHAUX-

ORRIS, CO-ADMINISTRATORS OF THE ) 2:17-CV-01241-JFC

)

ESTATE OF GREGORY MICHAUX;

) JUDGE JOY FLOWERS CONTI

Plaintiffs, ) )

)

vs. )

)

WARDEN JOHN TEMAS, IN HIS )

OFFICIAL AND INDIVIDUAL )

CAPACITIES; CORRECTIONAL )

OFFICER ADAM SMITH, IN HIS )

OFFICIAL AND INDICIDUAL )

)

CAPACITIES; CORRECTIONAL

)

OFFICER SHAWN SCHULTZ, IN HIS )

OFFICIAL AND INDICIDUAL )

CAPACITIES; CORRECTIONAL )

OFFICER MELVIN GRAY, IN HIS )

OFFICIAL AND INDICIDUAL )

CAPACITIES; CORRECTIONAL )

)

OFFICER JONATHAN BLEDNICK, IN

)

HIS OFFICIAL AND INDICIDUAL )

CAPACITIES; CAPTAIN MICHAEL )

KING, IN HIS OFFICIAL AND )

INDIVIDUAL CAPACITIES; NURSE )

CHERYL MCGAVITT, IN HER OFFICIAL )

)

AND INDIVIDUAL CAPACITIES; NURSE

)

GEORGENE HEPPLE, IN HER OFFICIAL

)

AND INDIVIDUAL CAPACITIES AS )

EMPLOYEE/AGENT OF SOUTHWEST )

BEHAVIORAL CARE, INC.; AND )

DEPUTY WARDEN EDWARD STRAWN, )

IN HIS OFFICIAL AND INDIVIDUAL )

)

CAPACITIES;

)

)

Defendants,

ORDER

AND NOW, this 5th day of December, 2019, in accordance with the foregoing

memorandum opinion,

IT IS HEREBY ORDERED that:

(1) plaintiffs’ motion for leave to file a fourth amended complaint (ECF No. 66) is DENIED;

(2) plaintiffs’ motion to reopen discovery (ECF No. 67) is DENIED; and

(3) defendants’ motions to preclude the expert report and testimony of A.E. Daniel, M.D.

(ECF Nos. 56, 57) are DENIED IN PART, i.e., with respect to his opinions that Warden

Temas failed to provide any specific training to staff in performing suicide screening, that

training in identification and recognition of mental illness was inadequate, and that the

facility had substantial problems with coordination of care and communication between

correctional staff and health care staff about vulnerability to suicide as set forth in Daniel

Report ¶¶ 12, 13, 15, and GRANTED IN ALL OTHER RESPECTS.

/s/ Joy Flowers Conti

Joy Flowers Conti

Senior United States District Judge