Tinsley v. Flanagan

• Court: District Court, D. Arizona
• Decided: May 22, 2020
• Docket: 2:15-cv-00185
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 B.K. by next friend Margaret Tinsley, et al., No. CV-15-00185-PHX-ROS

10 Plaintiffs, ORDER

11 v.

12 Michael Faust, et al.,

13 Defendants. 14 15 This lawsuit was initiated by Plaintiffs on behalf of children in Arizona state foster 16 care custody over five years ago against the Director of the Arizona Department of Child 17 Safety (“DCS”)1 and the Director of the Arizona Health Care Cost Containment System 18 (“AHCCCS”)2 (collectively, “Defendants”). Plaintiffs, alleging that a flawed system 19 causes serious harm to foster children, claimed violations of substantive due process and 20 the Medicaid Act on behalf of a general class and several subclasses. 21 A General Class and two subclasses (the Medicaid Subclass and the Non-Kinship 22 Subclass) have been certified. The Ninth Circuit affirmed the certification of the General 23 Class and the Non-Kinship Subclass, and denied permission to appeal the certification of 24 the Medicaid Subclass. Discovery, which was stayed by the Ninth Circuit for over 15 25 months at Defendants’ request, is now closed. Defendants updated their discovery only 26 after the Court explicitly ordered Defendants to “produc[e] up-to-date information so 27 Plaintiffs can litigate their claims using accurate information.” (Doc. 433.) After five years,

28 1 The current Director of DCS is Michael Faust, a Defendant in his official capacity. 2 The current Director of AHCCCS is Jami Snyder, a Defendant in her official capacity. 1 this matter is ripe for resolution. 2 I. Governing Law 3 The following overview of the law governing Plaintiffs’ substantive due process3 4 and Medicaid Act4 claims is intended to ensure the parties understand what the Court 5 expects at trial. 6 A. Substantive Due Process 7 Although a state is under no affirmative obligation to protect the general public from 8 private harm, the “special relationship” exception requires a state with a custodial 9 relationship to a person to “assume some responsibility for [the person’s] safety and general 10 well-being.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197–200 11 (1989). The Ninth Circuit has recognized that when a special relationship exists, “a state’s 12 omission or failure to protect may give rise to a § 1983 claim.” Patel v. Kent Sch. Dist., 13 648 F.3d 965, 972 (9th Cir. 2011). 14 In the Ninth Circuit, the “special relationship doctrine applies to children in foster 15 care,” and “foster children have ‘a federal constitutional right to state protection’ while 16 they remain in the care of the State.” Henry A. v. Willden, 678 F.3d 991, 1000 (9th Cir. 17 2012). Here, the Ninth Circuit recognized Plaintiffs’ right to bring an action based on the 18 claim that Defendants failed “to provide children in [their] care ‘reasonable safety and 19 minimally adequate care and treatment appropriate to the age and circumstances of the 20 child.’” B.K. by next friend Tinsley v. Snyder, 922 F.3d 957, 968 (9th Cir. 2019) (quoting 21 Lipscomb By & Through DeFehr v. Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992)). 22 The “proper standard” for determining whether a foster child’s due process rights 23 have been violated is deliberate indifference, which requires both objective risk of harm 24 and subjective awareness of the harm. Henry A., 678 F.3d at 1000–01. Specifically, a claim 25 for a substantive due process violation under 42 U.S.C. § 1983 on behalf of foster children 26 requires a showing of: 1) “an objectively substantial risk of harm”; and that 2) “officials 27 were subjectively aware of facts from which an inference could be drawn that a substantial

28 3 Counts I, III, and IV of the Second Amended Complaint. (Doc. 37.) 4 Count II of the Second Amended Complaint. (Doc. 37.) 1 risk of serious harm existed.” Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 845 2 (9th Cir. 2010). “The second part may be proven by showing (1) that the official was aware 3 of facts from which an inference of risk may be drawn and that the official made that 4 inference, (2) that the official was aware of facts from which an inference of risk may be 5 drawn and that any reasonable official would have been compelled to draw that inference, 6 or (3) that the risk of harm is obvious.” Tinsley, 922 F.3d at 968 (9th Cir. 2019) (citing 7 Tamas, 630 F.3d at 845).5 8 Defendants place undue emphasis on the phrase “conscience-shocking” in arguing 9 that their actions or inactions do not violate the Constitution. (Docs. 480 at 3, 481 at 4, 482 10 at 2, 483 at 2.) True, Tamas provides that “[t]o violate due process, state officials must act 11 with such deliberate indifference to the liberty interest” that their actions “shock the 12 conscience.” 630 F.3d at 844 (citing Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006)). 13 But Tamas continues “[c]onduct that ‘shocks the conscience’ is ‘deliberate indifference to 14 a known or … obvious … danger,’” then follows with the two-pronged objective and 15 subjective inquiry articulated above. Id. (quoting Kennedy v. City of Ridgefield, 439 F.3d 16 1055, 1064 (9th Cir. 2006)). In short, if the standard for deliberate indifference is met, it 17 shocks the conscience and therefore violates due process. 18 B. Medicaid Act 19 As the Ninth Circuit previously noted, “[o]nce a state joins the Medicaid system, it 20 must comply with federal statutory and regulatory requirements to ensure that its plan 21 provides all required healthcare services. These requirements may be court-enforced 22 through a private claim by eligible Medicaid beneficiaries.” Tinsley, 922 F.3d at 963–964 23 (citations omitted). In certifying the Medicaid Subclass, the Court held “the Medicaid Act 24 requires Defendants to proactively ensure that each child eligible for [early and periodic 25 screening, diagnostic, and treatment] services actually receives such services in a timely 26 manner.” (Doc. 461 at 14.) And it was held that “a violation of the Medicaid Act occurs

27 5 It has been held when both prongs are met, and officials are aware of systemic deficiencies over a period of years but fail to take “reasonable steps to cure the problems,” deliberate 28 indifference has been established. See M.D. by Stukenberg v. Abbott, 907 F.3d 237, 267 (5th Cir. 2018). 1 when a child in the Medicaid Subclass does not receive EPSDT services at all, or does not 2 receive them in a timely manner,” but recognized that some foster families might fail to 3 take the children in their care to medical appointments. (Doc. 461 at 14 & n.17.) Therefore, 4 in order to prevail on the Medicaid Act claim, Plaintiffs must show that Defendants have 5 failed to make all reasonable efforts to ensure that the children in the Medicaid Subclass 6 receive the necessary care and services in a timely manner. Defendants are responsible for 7 ensuring the children actually receive care and services. 8 C. Injunctive Relief 9 The General Class, Non-Kinship Subclass, and Medicaid Subclass have been 10 certified under Federal Rule of Civil Procedure 23(b)(2), which requires that “the party 11 opposing the class has acted or refused to act on grounds that apply generally to the class, 12 so that final injunctive relief or corresponding declaratory relief is appropriate respecting 13 the class as a whole.” See Fed. R. Civ. P. 23(b)(2). With respect to the substantive due 14 process claims, Plaintiffs are “entitled to injunctive relief if such relief is necessary to 15 redress the constitutional violations they actually prove at trial.” Tinsley, 922 F.3d at 971 16 (9th Cir. 2019). With respect to the Medicaid claims, Plaintiffs must show that every 17 member of the Medicaid Subclass is exposed to a significant risk of an imminent future 18 Medicaid violation. (Doc. 461.) 19 II. The Daubert Motions 20 At a status conference on December 20, 2019, the Court heard argument regarding 21 whether there are genuine disputes of material fact regarding the substantive due process 22 and Medicaid Act claims. Plaintiffs argued that “there are certainly disputed questions of 23 fact that preclude summary judgment.” (Doc. 479 at 24.) Defendants argued that DCS had 24 improved “in timeliness of investigations, caseloads, shelter care, and other areas that are 25 critical to the allegations in the lawsuit,” and that “these unrefuted facts . . . defy a claim of 26 deliberate, conscience-shocking indifference.” (Doc. 479 at 43–44.) The Court determined 27 to first consider Defendants’ motions to preclude the opinions of Plaintiffs’ experts. 28 Defendants followed with motions to exclude, in their entirety, the opinions of all 1 of Plaintiffs’ experts, who Defendants referred to as “armchair expert[s]” whose reports 2 were “just not helpful to a fact-finder.” (Doc. 479 at 51, Docs. 480-484.) Before expert 3 testimony may be admitted, the Court serves as a gatekeeper to ensure “that the testimony 4 is both ‘relevant’ and ‘reliable’ under Rule 702.” United States v. Ruvalcaba-Garcia, 923 5 F.3d 1183, 1188 (9th Cir. 2019) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 6 509 U.S. 579, 597 (1993)). But that gatekeeping function is principally “designed to protect 7 juries” from being inappropriately swayed by problematic testimony, and “is largely 8 irrelevant in the context of a bench trial.” United States v. Flores, 901 F.3d 1150, 1165 (9th 9 Cir. 2018) (quoting Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 852 (6th Cir. 2004)).6 10 During a bench trial, “where the factfinder and the gatekeeper are the same, the court does 11 not err in admitting the evidence subject to the ability later to exclude it or disregard it if it 12 turns out not to meet the standard of reliability established by Rule 702.” Id. (quoting In re 13 Salem, 465 F.3d 767, 777 (7th Cir. 2006)). 14 Defendants rely heavily on the Court’s decades-old decision in Diviero v. Uniroyal 15 Goodrich Tire Co., 919 F. Supp. 1353 (D. Ariz. 1996) to argue that “orderly, focused” 16 proceedings require the exclusion of Plaintiff’s experts before trial because their expertise 17 “does not ‘fit’ the facts of this case.” (See, e.g., Doc. 480 at 2, Doc. 490 at 6.) But in Diviero 18 the Court considered the reliability and admissibility of complex scientific expert witness 19 testimony: “An expert’s experience is given significant weight in determining the witness’ 20 qualifications as an expert if only technical knowledge is required. If, however, scientific 21 knowledge is necessary the expertise must be coextensive with the particular scientific 22 discipline.” 919 F. Supp. at 1357. In this case, where no scientific knowledge is necessary 23 and the witnesses’ expertise is based on “personal knowledge or experience,” Diviero is

24 6 The Flores court found further support in the Eighth and Eleventh Circuits. See id. (“Daubert is meant to protect juries from being swayed by dubious scientific testimony. 25 When the district court sits as the finder of fact, there is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.”) (quoting David E. 26 Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th Cir. 2012) (quotations omitted) (emphasis in original); see id. (“Daubert ‘barriers are even more relaxed in a bench trial 27 situation.’”) (quoting United States v. Brown, 415 F.3d 1257, 1268–69 (11th Cir. 2005)); see also FTC v. BurnLounge, Inc., 753 F.3d 878, 888 (9th Cir. 2014) (“When we consider 28 the admissibility of expert testimony, we are mindful that there is less danger that a trial court will be unduly impressed by the expert’s testimony or opinion in a bench trial.”). 1 inapposite. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999); Fed. R. Evid. 702 2 (permitting experts to testify if the expert has “technical[] or other specialized [helpful] 3 knowledge” and the expert’s testimony is the “product of reliable principles and 4 methods”).7 5 After review of the motions, responses, and replies, and the accompanying records, 6 the Court finds all experts to be at least minimally qualified and the disputed opinions 7 sufficiently relevant reliable to consider at trial, where all evidence will be presented to, 8 and considered by, the Court. See Bourjaily v. United States, 483 U.S. 171, 175 (1987) 9 (holding the evidentiary standard for admissibility determinations “is unrelated to the 10 burden of proof on the substantive issues”). The Court will be aided at trial by the testimony 11 of the experts under oath on direct, cross examination, and likely questioning by the Court. 12 The Court will not risk trying this case twice by considering the testimony of experts at a 13 pretrial hearing with the likelihood of hearing it again at trial.8 Genuine disputes of material 14 fact preclude a grant of summary judgment in favor of either party, particularly where 15 Plaintiffs’ experts and Defendants’ experts appear in part to have reviewed the same data, 16 using the same methodology, but reached differing conclusions. See Doc. 489 at 38 17 (arguing Plaintiff’s expert’s analysis “was based on the same data, and used the same 18 methodology … that Defendants and their … expert … used to assess Defendants’ health 19 care system”); see also Clausen v. M/V NEW CARISSA, 339 F.3d 1049, 1052–1053 (9th 20 Cir. 2003) (discussing “a classic battle of the experts”). Therefore, the motions to exclude 21 the experts will be denied without prejudice. But a brief discussion follows regarding issues 22 the parties are to address regarding the reliability and relevance of each witness’ expert 23 opinions.

24 7 Rule 702 was amended substantively in 2000, after Diviero, in response to the Daubert line of cases. Fed. R. Evid. 702 Advisory Committee Notes. “Consequently, the 25 admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the pertinent admissibility 26 requirements are met by a preponderance of the evidence.” Id. (citing Bourjaily v. United States, 483 U.S. 171 (1987)). 27 8 In another foster care case in Massachusetts, the district judge permitted partial summary judgment briefing but denied the motion without prejudice “as a matter of judicial 28 economy” after determining that a trial was necessary on the remaining claims. Connor B. ex rel. Vigurs v. Patrick, 985 F. Supp. 2d 129, 134 (D. Mass. 2013). 1 Plaintiffs provided five experts to “assist the Court in understanding the evidence”: 2 Marci White (“White”), Dr. Steven Blatt (“Blatt”), Paul Zurek, Ph.D. (“Zurek”), Arlene 3 Happach (“Happach”), and Lenette Azzi-Lessing, Ph.D. (“Azzi-Lessing”). (Doc. 489 at 9– 4 10.)9 5 White’s testimony involves behavioral health care, specifically “whether Arizona 6 children in foster care have been—and remain—at an inappropriate risk of harm resulting 7 from a lack of necessary behavioral health care” and “whether Arizona’s failure to provide 8 necessary behavioral health care violates the Medicaid Act, and whether children in foster 9 care are at risk of not receiving behavioral health services required by the statute.” (Doc. 10 489 at 9.) White has decades of experience with the design, implementation, management, 11 and monitoring of behavioral health service systems for children involved in foster care, 12 mental health, and juvenile justice systems, and the Court finds that she is qualified to 13 provide opinion testimony on at least behavioral health service systems for children in 14 foster care. (Doc. 489 at 20–22.)10 15 Defendants raise concerns about White’s methodology, particularly her failure to 16 conduct case reviews and visit facilities. (Doc. 483 at 5–6.) Defendants also challenge 17 White’s exclusion of Provider Type 77 data in reaching conclusions about the timeliness 18 of behavioral health service delivery. (Doc. 483 at 11–13.) The Court notes that White 19 excluded Provider Type 77 data in some of her analyses11 but included it in others.12 The 20 Court finds these alleged deficiencies preliminarily go to the weight and not the 21 admissibility of her opinion. At trial, Plaintiffs should be prepared to address in detail 22 9 As a preliminary note, the Court reminds Defendants the legal question of whether 23 Defendants have violated Plaintiffs’ substantive due process rights and/or the Medicaid Act is one for the Court, so questioning of experts on whether the ultimate legal standard 24 has been violated is prohibited. See Doc. 483 at 7, arguing White’s analysis is “unhelpful and inadmissible” because she “refused to say whether a given circumstance was 25 conscience-shocking” (emphasis in original). 10 Because not every opinion offered in the expert reports relates to the current state of 26 affairs, in the Joint Proposed Pretrial Order Plaintiffs should set forth seriatim each and every opinion each witness will offer. Plaintiffs are not to incorporate the expert reports in 27 their entirety. 11 For example, Table 2 in her initial expert report. (Doc. 483-1 at 12.) 28 12 For example, the Cenpatico Integrated Care column in Table 3 in her initial expert report. (Doc. 483-1 at 13.) 1 White’s methodology, including why she conducted no case reviews, especially after 2 discovering the issues with Provider Type 77 data, and how she adapted her methodology 3 to respond to Defendants’ changing reporting metrics. Plaintiffs should also be prepared to 4 elaborate on White’s qualifications as a Medicaid expert. 5 Blatt, a pediatrician, will testify about physical and dental health care, specifically 6 “whether Arizona children in foster care face an inappropriate risk of serious harm resulting 7 from a lack of appropriate medical care” and “whether Arizona’s failure to provide 8 appropriate medical care violates the Medicaid Act, and whether children in foster care are 9 at risk of statutory violations.” (Doc. 489 at 9–10.) Blatt regularly treats foster children, 10 provides training to foster parents on best practices for providing medical care for children 11 in foster care, and was a member of the expert committee that authored health care practice 12 standards for foster children. The Court finds that he is qualified to provide testimony on 13 at least health care practice standards for foster children. (Doc. 489 at 33–34.) 14 Defendants challenge Blatt’s expertise “in the field of managing and operating a 15 State child welfare agency that must comply with Medicaid laws and regulations,” and 16 argue that Blatt misused and misunderstood the data. (Doc. 480 at 2, 5–7.) Defendants 17 particularly challenge Blatt’s reliance “on data extracted from small sample sizes and 18 extrapolate[d] … to the entire foster care population.” (Doc. 480 at 8.) At this stage, these 19 issues go to the weight rather than the admissibility of his opinion. At trial, Plaintiffs should 20 be prepared to address Blatt’s fit as an expert, and the reliability of Blatt’s methodology 21 with respect to differing approaches to small sample sizes. 22 Zurek, an economist, “review[ed], analyze[d], and synthesize[d] databases of 23 medical and investigations data,” and will testify regarding his summaries and analyses to 24 establish that “Arizona children in foster care are at substantial risk of harm resulting from 25 the failure to receive necessary medical services and at substantial risk of not receiving 26 services required by the Medicaid Act.” (Doc. 489 at 10.) Zurek is an applied economist 27 with a Ph.D. that included “extensive research in econometrics.” (Doc. 489 at 43–44.) The 28 Court finds that he is qualified to apply statistical methods to data. 1 Defendants submit that Zurek’s “experience as an expert has been almost 2 exclusively limited to securities matters, valuations of financial options, trading volumes, 3 foreign exchange transactions, financial product risk assessment, and securities damage 4 valuations,” and he has only “collected and summarized data” on one other occasion. (Doc. 5 484 at 6.) Defendants argue Zurek’s lack of knowledge and experience with “child welfare 6 systems data [and] Medicaid performance metrics” resulted in unreliable analyses. (Doc. 7 484 at 6.) At this point, this argument goes to the weight rather than the admissibility of 8 his opinions. At trial, Plaintiffs should address Defendants’ position that Zurek “does not 9 recognize relevant data and variables and is unqualified” to understand the limitations of 10 the data. (Doc. 490 at 52.) And Plaintiffs have indicated a desire to admit Zurek’s exhibits 11 as Rule 1006 summaries, but they must be prepared to lay the required foundation for Rule 12 1006 summaries and underlying documents. 13 Happach will testify about “DCS’s placement practices,” specifically “whether 14 foster children in Arizona are at an inappropriate risk of harm resulting from excessive 15 caseloads, failure to conduct timely investigations of abuse and neglect in care, and 16 improper placement practices such as inappropriate use of congregate care, unnecessary 17 separation of siblings, and placement far from their home communities.” (Doc. 489 at 10– 18 11.) Happach has decades of hands-on and supervisory experience in child welfare 19 programs, and the Court finds she is qualified to provide testimony on at least caseloads 20 and placement practices. (Doc. 489 at 57–58.) 21 Defendants challenge Happach’s experience, because it is not from Arizona, and 22 her methodology, because she did not speak directly to any Arizona foster children or 23 parents, or visit a DCS congregate facility. (Doc. 482 at 2–3.) At trial, Plaintiffs are to point 24 to what information is reasonably relied upon by experts in the field to determine how 25 many children are in detention, hospitals, or therapeutic congregate care and how that 26 information is collected, and whether Happach sought out this information. 27 Finally, Azzi-Lessing reviewed the case files of named plaintiffs B.K. and B.T., and 28 will testify that they are appropriate class representatives. (Doc. 489 at 11.) Azzi-Lessing 1 has decades of social work and child welfare experience, and the Court finds that she is 2 qualified to provide testimony on at least the care received by B.K. and B.T. while in the 3 Arizona child welfare system, and whether that care meets standards of professional 4 practice. (Doc. 489 at 70–73, 80.) Defendants argue Azzi-Lessing’s summary of thousands 5 of pages of case files is inadmissible because it is unnecessary, and she is not qualified to 6 offer an opinion on causes of harm to B.K. (Doc. 481 at 8, 14–15.) 7 Defendants, who repeatedly challenged the data Plaintiffs’ experts relied on as 8 inaccurate, unreliable, and stale,13 are to be prepared to explain what data they propose is 9 accurate, reliable, and current with regard to “Defendants’ actual performance,” Doc. 483 10 at 11 n.9; and, if that data is not collected, why it has not been collected. 11 The Court is particularly interested in caseloads. Defendants challenge Happach’s 12 opinion that the Arizona caseload standard is 20 children, arguing that the 2013 time study 13 of CPS caseloads does not constitute a reliable basis on which to opine on DCS caseloads, 14 and that Happach does not understand the “current workload [of DCS caseworkers] and 15 ability to perform their job tasks as they exist in 2020.” (Doc. 482 at 16–18, Doc. 490 at 16 20.) The Court previously took judicial notice of the Q4 FY2019 Quarterly Benchmark 17 Progress Report, which noted that of the 34 Arizona sections with at least one out-of-home 18 child per worker, nine sections had caseloads of out-of-home children per worker of 19 between one and 20 children; eight sections had caseloads of 21-24 children; 12 sections 20 had caseloads of 25-29 children; and five sections had caseloads of over 30 children per 21 worker. (Doc. 461 at 20 & n.19.) The Court noted then that “74% of DCS case managers 22 have caseloads that are not manageable under DCS’s own standard.” (Doc. 461 at 20.) 23 The Court now takes judicial notice for the purpose of trial of the Q2 SFY2020 24 Quarterly Benchmark Progress Report, which notes that between the first and second 25 quarters of 2020, out of 32 Arizona sections with at least one out-of-home child per worker, 26 the number of sections with caseloads of between one and 20 out-of-home children per 27 13 Defendants used the word “stale” eleven times to attack the validity of Plaintiffs’ experts’ 28 conclusions. (Doc. 480 at 3, Doc. 482 at 13, Doc. 483 at 2, 6, 14, 15, and 18, and Doc. 484 at 15.) 1 worker rose from eight to 12; the number of sections with caseloads of 21-24 children fell 2 from 12 to two; the number of sections with caseloads of 25-29 children rose from five to 3 11; and the number of sections with caseloads of over 30 children per worker remained at 4 seven, although the highest caseload declined from 39 to 37. This means that in the first 5 quarter of 2020, 75% of DCS case managers had caseloads of over 20, and in the second 6 quarter of 2020, approximately 63% of DCS case managers had caseloads of over 20. 7 Defendants are clearly capable of tracking caseloads with precision, and referring to the 8 concept interchangeably as both “caseload” and “workload,” and should be prepared to 9 explain at trial how DCS determines reliably if a caseworker is overburdened and what a 10 current time study of case work would reveal about caseloads. 11 Defendants should also be prepared to explain the changes in DCS reporting 12 practices over the course of the litigation, including why certain performance measures are 13 no longer tracked, and should be prepared to discuss the number of children in DCS care 14 eligible to receive health care from the Indian Health Service and the number of children 15 in DCS care placed in in-patient behavioral health facilities. 16 This case is fact intensive and heavily reliant on expert testimony. The standard for 17 determining substantive due process violations in the foster care context is highly fact- 18 dependent, and the time for Defendants to argue that Plaintiffs have not made an adequate 19 showing is at the close of Plaintiffs’ case. Trial is therefore set for July 27, 2020. 20 Since the initial suit was filed, changes have been made in the leadership and 21 organization of DCS and AHCCCS, and apparently there have also been changes in 22 services. Plaintiffs have frequently cited to the historical numbers, but the current facts are 23 crucial to the decision in this case. Therefore, by no later than July 7, 2020, Plaintiffs shall 24 submit a pretrial brief on the substantive due process claims. The brief, which may not 25 exceed 15 pages, shall focus on the current facts and evidence Plaintiffs will offer to prove 26 the current conditions establish constitutional violations warranting an injunction. The 27 Court cautions Plaintiffs not to rely exclusively on the use of congregate care. Defendants 28 shall file a response brief, not to exceed 15 pages, by no later than July 14, 2020, regarding 1 why current conditions establish no injunction is warranted. Plaintiffs shall file a reply brief 2 by no later than July 17, 2020. 3 Accordingly, 4 IT IS ORDERED Defendants’ Motions to Exclude Plaintiffs’ Experts (Docs. 480, 5 481, 482, 483, and 484) are DENIED. 6 IT IS FURTHER ORDERED all Motions in Limine are due June 29, 2020. 7 Responses are due ten days afterward. No replies are permitted unless ordered by the Court. 8 Prior to filing any Motion in Limine, the parties must confer and discuss the contents of 9 each planned motion. No Motion in Limine should be filed if the other party does not 10 oppose the relief requested. 11 IT IS FURTHER ORDERED the Joint Proposed Pretrial Order is due June 29, 12 2020. In this Order Plaintiffs and Defendants are to set forth seriatim each and every 13 opinion each expert witness will offer rather than attaching the expert reports in their 14 entirety. 15 IT IS FURTHER ORDERED due to the COVID-19 pandemic, the Court will 16 permit witnesses to appear by video. The parties are to indicate in the Joint Proposed 17 Pretrial Order whether each witness will be appearing in person or by video. In addition, 18 the parties are to provide additional information for each witness appearing by video to the 19 Court by email, at Silver_Chambers@azd.uscourts.gov, no later than June 29, 2020. The 20 parties must provide contact information for each witness, including where they will be 21 appearing from and what program capabilities they have from their location, and indicate 22 approximately what time and date the witness will be called. 23 IT IS FURTHER ORDERED no later than June 29, 2020, the parties shall deliver 24 to chambers excerpts of the deposition testimony they propose to present at trial, in 25 compliance with the procedures available on the Court’s website (found in Deposition 26 Designation Procedure for Judge Silver), including but not limited to: Plaintiffs 27 highlighting in yellow the portions they wish to offer and Defendants highlighting in blue 28 those portions they wish to offer. If either party objects to the proposed testimony, a specific and concise objection (e.g., “Relevance, Rule 402”) shall be placed in the margin 2|| adjacent to the proposed testimony. A response, if any, to the objection is also to be written || on the deposition. 4 IT IS FURTHER ORDERED Plaintiffs shall submit a pretrial brief on the 5 || substantive due process claims no later than July 7, 2020. Defendants shall file a response 6|| brief no later than July 14, 2020. Plaintiffs shall file a reply brief no later than July 17, 7\| 2020. 8 IT IS FURTHER ORDERED a final pretrial conference is set for July 24, 2020 9|| at 2 p.m. 10 IT IS FURTHER ORDERED trial to the Court is set for July 27, 2020. Estimated length of trial is 15 days. 12 IT IS FURTHER ORDERED the parties shall comply with the Exhibit Procedures 13 || found on the Court’s website at www.azd.uscourts.gov / Judges’ Information / Orders, Forms & Procedures for Hon. Roslyn O. Silver. 15 Dated this 21st day of May, 2020. 16 fo . 17 —

19 Senior United States District Judge 20 21 22 23 24 25 26 27 28

-13-