1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF GERARDO CRUZ- Case No.: 17-cv-569-AJB-NLS SANCHEZ, by and through his successor- 12 in-interest Paula Garcia Rivera, et al., ORDER GRANTING IN PART AND 13 DENYING IN PART DEFENDANTS’ Plaintiffs, MOTION TO EXCLUDE EXPERT 14 v. DR. TODD WILCOX 15 THE UNITED STATES OF AMERICA, 16 et al., (Doc. No. 88) 17 Defendants. 18 19 Presently before the Court is Defendants’ motion to exclude expert Dr. Todd Wilcox. 20 (Doc. No. 88.) Plaintiff filed a response to Defendants’ motion. (Doc. No. 110.) On 21 December 20, 2018, the Court held a hearing on the instant motion. Based on the arguments 22 presented in the briefing as well as at the hearing, the Court GRANTS in part and DENIES 23 in part Defendants’ motion to exclude expert Dr. Todd Wilcox. 24 BACKGROUND 25 The instant matter revolves around the arrest, incarceration and eventual death of 26 Gerardo Cruz-Sanchez. (See generally Doc. No. 83.) Mr. Cruz-Sanchez was incarcerated 27 at the Otay Mesa Detention Center (“OMDC”). (Id. ¶ 1.) CoreCivic contracts with the 28 United States to provide detention services at OMDC. (Doc. No. 107-1 at 6.) CoreCivic 1 provides support to facilitate the delivery of healthcare services. (Id. at 8.) 2 On February 11, 2016, Mr. Cruz-Sanchez had an intake assessment and reported no 3 medical problems. (Id. at 12.) On February 12, 2016, Mr. Cruz-Sanchez was seen regarding 4 pain in his upper eye lid. (Id.) On February 14, 2016, Mr. Cruz-Sanchez was seen by a 5 nurse regarding a headache, sore throat, cough and nasal congestion for two days. (Id.) On 6 February 16, 2016, Mr. Cruz-Sanchez saw another nurse complaining that he had a cough, 7 body aches, and sore throat for one week. (Id.) On February 17, 2016, Mr. Cruz-Sanchez 8 saw a physician’s assistant regarding the same symptoms. (Id.) On February 26, 2016, an 9 emergency call was made for Mr. Cruz-Sanchez. (Id. at 16.) Mr. Cruz-Sanchez was then 10 brought to the medical clinic and seen by a doctor. (Id.) The doctor then called 911 and 11 Mr. Cruz-Sanchez was transported to the hospital. (Id.) On February 29, 2016, Mr. Cruz- 12 Sanchez passed away from pneumonia. (Id. at 20.) 13 Currently, Defendants seek to exclude Plaintiffs’ expert witnesses, Dr. Todd Wilcox 14 (“Dr. Wilcox”). (Doc. No. 88.) Plaintiffs designated Dr. Wilcox to opine on correctional 15 medicine. 16 LEGAL STANDARD 17 Federal Rule of Evidence 702 governs the admissibility of expert testimony. 18 Pursuant to Rule 702, 19 [a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an 20 opinion or otherwise if: (a) the expert’s scientific, technical, or 21 other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the 22 testimony is based on sufficient facts or data; (c) the testimony is 23 the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the 24 case. 25 Id. “The party offering the expert bears the burden of establishing that Rule 702 is 26 satisfied.” Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. 02 CV 2258 JM 27 (AJB), 2007 WL 935703, at *4 (S.D. Cal. Mar. 7, 2007). 28 1 Prior to admitting expert testimony, the trial court must make “a preliminary 2 assessment of whether the reasoning or methodology underlying the testimony is 3 scientifically valid and of whether that reasoning or methodology properly can be applied 4 to the facts in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993). 5 The trial court acts as a “gatekeeper” by making a preliminary determination of whether 6 the expert’s proposed testimony is not only relevant but reliable. Estate of Barabin v. 7 AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014). This two-step assessment requires 8 consideration of whether (1) the reasoning or methodology underlying the testimony is 9 scientifically valid (the reliability prong); and (2) whether the reasoning or methodology 10 properly can be applied to the facts in issue (the relevance prong). Daubert, 509 U.S. at 11 592–93; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998). 12 A district court has broad latitude in deciding how to measure reliability and in 13 making the ultimate reliability determination. Kumho Tire Co. v. Carmichael, 526 U.S. 14 137, 142 (1999). In essence, the Court must determine whether the expert’s work product 15 amounts to “good science.” Daubert, 509 U.S. at 593. In Daubert, the Supreme Court 16 outlined factors relevant to the reliability prong, including (1) whether the theory can be 17 and has been tested; (2) whether it has been subjected to peer review; (3) the known or 18 potential rate of error; and (4) whether the theory or methodology employed is generally 19 accepted in the relevant scientific community. Id. at 593–94. As later confirmed in Kumho 20 Tire, “Daubert’s list of specific factors neither necessarily nor exclusively applies to all 21 experts or in every case. Rather, the law grants a district court the same broad latitude when 22 it decides how to determine reliability as it enjoys in respect to its ultimate reliability 23 determination.” 526 U.S. at 141–42. 24 Under the relevance or “fit” prong, the testimony must be “‘relevant to the task at 25 hand,’ i.e., that it logically advances a material aspect of the proposing party’s case.” 26 Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) (quoting 27 Daubert, 509 U.S. at 597). Relevance requires opinions that would assist the trier of fact 28 in reaching a conclusion necessary to the case. See Kennedy, 161 F.3d at 1230. In general, 1 the Daubert analysis focuses on the principles and methodology underlying an expert’s 2 testimony, not on the expert’s ultimate conclusions. Daubert, 509 U.S. at 595. However, 3 the Supreme Court has cautioned that “conclusions and methodology are not entirely 4 distinct from one another.” Gen. Elec. v. Joiner, 522 U.S. 136, 146 (1997). As such, “[a] 5 court may conclude that there is simply too great an analytical gap between the data and 6 the opinion proffered.” Id. 7 DISCUSSION 8 Defendants argue that two of Dr. Wilcox’s opinions should be excluded. 9 Specifically, Defendants seek to exclude the following opinions: 10 7. Given how poorly [Cruz-Sanchez] was oxygenating his blood, he would have appeared gravely ill even to a lay person. He was 11 noticeably ill to his cellmate and his attorney who both tried to 12 get him medical attention.
13 9. In the documentation in this case, there is significant collateral 14 information to suggest that access to care in this facility is significantly constrained. There is evidence that the institution 15 was struggling with officer staffing issues, that the doctor call 16 process was onerous for patients to comply with, and that the officers did not advocate for the health needs of the prisoners 17 even when they requested medical care directly. 18 (Doc. No. 88-1 at 2.) 19 Defendants argue that stating that Cruz-Sanchez would have appeared “gravely ill” 20 to a lay person is unsupported speculation and requires too great an analytical gap between 21 the data and the opinion. (Id. at 2–3.) Plaintiff asserts, and the Court agrees, that this 22 opinion is based on Dr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF GERARDO CRUZ- Case No.: 17-cv-569-AJB-NLS SANCHEZ, by and through his successor- 12 in-interest Paula Garcia Rivera, et al., ORDER GRANTING IN PART AND 13 DENYING IN PART DEFENDANTS’ Plaintiffs, MOTION TO EXCLUDE EXPERT 14 v. DR. TODD WILCOX 15 THE UNITED STATES OF AMERICA, 16 et al., (Doc. No. 88) 17 Defendants. 18 19 Presently before the Court is Defendants’ motion to exclude expert Dr. Todd Wilcox. 20 (Doc. No. 88.) Plaintiff filed a response to Defendants’ motion. (Doc. No. 110.) On 21 December 20, 2018, the Court held a hearing on the instant motion. Based on the arguments 22 presented in the briefing as well as at the hearing, the Court GRANTS in part and DENIES 23 in part Defendants’ motion to exclude expert Dr. Todd Wilcox. 24 BACKGROUND 25 The instant matter revolves around the arrest, incarceration and eventual death of 26 Gerardo Cruz-Sanchez. (See generally Doc. No. 83.) Mr. Cruz-Sanchez was incarcerated 27 at the Otay Mesa Detention Center (“OMDC”). (Id. ¶ 1.) CoreCivic contracts with the 28 United States to provide detention services at OMDC. (Doc. No. 107-1 at 6.) CoreCivic 1 provides support to facilitate the delivery of healthcare services. (Id. at 8.) 2 On February 11, 2016, Mr. Cruz-Sanchez had an intake assessment and reported no 3 medical problems. (Id. at 12.) On February 12, 2016, Mr. Cruz-Sanchez was seen regarding 4 pain in his upper eye lid. (Id.) On February 14, 2016, Mr. Cruz-Sanchez was seen by a 5 nurse regarding a headache, sore throat, cough and nasal congestion for two days. (Id.) On 6 February 16, 2016, Mr. Cruz-Sanchez saw another nurse complaining that he had a cough, 7 body aches, and sore throat for one week. (Id.) On February 17, 2016, Mr. Cruz-Sanchez 8 saw a physician’s assistant regarding the same symptoms. (Id.) On February 26, 2016, an 9 emergency call was made for Mr. Cruz-Sanchez. (Id. at 16.) Mr. Cruz-Sanchez was then 10 brought to the medical clinic and seen by a doctor. (Id.) The doctor then called 911 and 11 Mr. Cruz-Sanchez was transported to the hospital. (Id.) On February 29, 2016, Mr. Cruz- 12 Sanchez passed away from pneumonia. (Id. at 20.) 13 Currently, Defendants seek to exclude Plaintiffs’ expert witnesses, Dr. Todd Wilcox 14 (“Dr. Wilcox”). (Doc. No. 88.) Plaintiffs designated Dr. Wilcox to opine on correctional 15 medicine. 16 LEGAL STANDARD 17 Federal Rule of Evidence 702 governs the admissibility of expert testimony. 18 Pursuant to Rule 702, 19 [a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an 20 opinion or otherwise if: (a) the expert’s scientific, technical, or 21 other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the 22 testimony is based on sufficient facts or data; (c) the testimony is 23 the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the 24 case. 25 Id. “The party offering the expert bears the burden of establishing that Rule 702 is 26 satisfied.” Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. 02 CV 2258 JM 27 (AJB), 2007 WL 935703, at *4 (S.D. Cal. Mar. 7, 2007). 28 1 Prior to admitting expert testimony, the trial court must make “a preliminary 2 assessment of whether the reasoning or methodology underlying the testimony is 3 scientifically valid and of whether that reasoning or methodology properly can be applied 4 to the facts in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993). 5 The trial court acts as a “gatekeeper” by making a preliminary determination of whether 6 the expert’s proposed testimony is not only relevant but reliable. Estate of Barabin v. 7 AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014). This two-step assessment requires 8 consideration of whether (1) the reasoning or methodology underlying the testimony is 9 scientifically valid (the reliability prong); and (2) whether the reasoning or methodology 10 properly can be applied to the facts in issue (the relevance prong). Daubert, 509 U.S. at 11 592–93; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998). 12 A district court has broad latitude in deciding how to measure reliability and in 13 making the ultimate reliability determination. Kumho Tire Co. v. Carmichael, 526 U.S. 14 137, 142 (1999). In essence, the Court must determine whether the expert’s work product 15 amounts to “good science.” Daubert, 509 U.S. at 593. In Daubert, the Supreme Court 16 outlined factors relevant to the reliability prong, including (1) whether the theory can be 17 and has been tested; (2) whether it has been subjected to peer review; (3) the known or 18 potential rate of error; and (4) whether the theory or methodology employed is generally 19 accepted in the relevant scientific community. Id. at 593–94. As later confirmed in Kumho 20 Tire, “Daubert’s list of specific factors neither necessarily nor exclusively applies to all 21 experts or in every case. Rather, the law grants a district court the same broad latitude when 22 it decides how to determine reliability as it enjoys in respect to its ultimate reliability 23 determination.” 526 U.S. at 141–42. 24 Under the relevance or “fit” prong, the testimony must be “‘relevant to the task at 25 hand,’ i.e., that it logically advances a material aspect of the proposing party’s case.” 26 Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) (quoting 27 Daubert, 509 U.S. at 597). Relevance requires opinions that would assist the trier of fact 28 in reaching a conclusion necessary to the case. See Kennedy, 161 F.3d at 1230. In general, 1 the Daubert analysis focuses on the principles and methodology underlying an expert’s 2 testimony, not on the expert’s ultimate conclusions. Daubert, 509 U.S. at 595. However, 3 the Supreme Court has cautioned that “conclusions and methodology are not entirely 4 distinct from one another.” Gen. Elec. v. Joiner, 522 U.S. 136, 146 (1997). As such, “[a] 5 court may conclude that there is simply too great an analytical gap between the data and 6 the opinion proffered.” Id. 7 DISCUSSION 8 Defendants argue that two of Dr. Wilcox’s opinions should be excluded. 9 Specifically, Defendants seek to exclude the following opinions: 10 7. Given how poorly [Cruz-Sanchez] was oxygenating his blood, he would have appeared gravely ill even to a lay person. He was 11 noticeably ill to his cellmate and his attorney who both tried to 12 get him medical attention.
13 9. In the documentation in this case, there is significant collateral 14 information to suggest that access to care in this facility is significantly constrained. There is evidence that the institution 15 was struggling with officer staffing issues, that the doctor call 16 process was onerous for patients to comply with, and that the officers did not advocate for the health needs of the prisoners 17 even when they requested medical care directly. 18 (Doc. No. 88-1 at 2.) 19 Defendants argue that stating that Cruz-Sanchez would have appeared “gravely ill” 20 to a lay person is unsupported speculation and requires too great an analytical gap between 21 the data and the opinion. (Id. at 2–3.) Plaintiff asserts, and the Court agrees, that this 22 opinion is based on Dr. Wilcox’s review of testimony, the relevant medical records, and 23 his years of experience as a licensed and practicing physician. Dr. Wilcox may offer his 24 opinion that “Given how poorly [Cruz-Sanchez] was oxygenating his blood, he would have 25 appeared gravely ill even to a lay person.” (Doc. No. 88-1 at 2.) This opinion does not rise 26 to the level of too great an analytical gap between the data and the opinion. See General 27 Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). As Plaintiffs have correctly argued, 28 Defendants are welcome to address any alleged analytical deficiencies in Dr. Wilcox’s 1 testimony through cross-examination, their presentation of evidence, and through the 2 opinions of their own expert. 3 However, the Court finds that the second half of that same paragraph that states: “He 4 was noticeably ill to his cellmate and his attorney who both tried to get him medical 5 attention” is too speculative. (Doc. No. 88-1 at 2.) Accordingly, Dr. Wilcox may not testify 6 as to this finding. 7 Defendants argue further that Dr. Wilcox’s opinion that there “is significant 8 collateral information to suggest that access to care in this facility is significantly 9 constrained” is an impermissible legal conclusion. (Doc. No. 88-1 at 4.) “It is well- 10 established . . . that expert testimony concerning an ultimate issue is not per se improper.” 11 Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1066 n. 10 (9th Cir. 2002). 12 However, “an expert witness cannot give an opinion as to her legal conclusion, i.e., an 13 opinion on an ultimate issue of law.” Id. Here, Dr. Wilcox’s testimony is that the 14 information suggests that access to care is significantly constrained, this is not direct 15 testimony that Dr. Wilcox has reached a legal conclusion that there is actually constrained 16 access to care. See Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1016–17 17 (9th Cir. 2004) (“While Caliri’s testimony that Defendants deviated from industry 18 standards supported a finding that they acted in bad faith, Caliri never testified that he had 19 reached a legal conclusion that Defendants actually acted in bad faith (i.e., an ultimate issue 20 of law).”) Accordingly, Dr. Wilcox may testify to this specific opinion. 21 Defendants argue that Dr. Wilcox’s opinion that “there is evidence that the 22 institution was struggling with officer staffing issues, that the doctor call processes was 23 onerous for patients to comply with, and that the officers did not advocate for the health 24 needs of the prisoners even when they requested medical care directly” should be excluded. 25 (Doc. No. 88-1 at 4.) The Court agrees with Defendants’ argument that Dr. Wilcox is not 26 an expert on staffing patterns in detention facilities. While Dr. Wilcox is an expert “in the 27 design, administration, and delivery of correctional healthcare in various environments,” 28 (Doc. No. 110 at 10), this does not mean he is an expert in staffing a correctional facility. 1 || (See Doc. No. 88-1 at 4.) Therefore, Dr. Wilcox’s testimony regarding staffing issues will 2 ||not be permitted. 3 CONCLUSION 4 Based on the foregoing, the Court GRANTS in part and DENIES in part 5 || Defendants’ motion to exclude expert Dr. Todd Wilcox. 6 7 IS SO ORDERED. 8 |! Dated: September 17, 2019 | ZS Zt □□□ 7 Hon. Anthony J.@Battaglia 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28