Free Response in Opposition to Motion - District Court of Arizona - Arizona

A. James Clark, #002901 CLARK & MOORE 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233 [email protected]
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Attorneys for Plaintiff Rubecca Mikkelsen, etc.
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John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 1440 E. Missouri Avenue, #150 7 Phoenix, Arizona 85014 (602) 285-1444 8 [email protected]
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Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
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RUBECCA MIKKELSEN, surviving) spouse of Kelly Mikkelsen, deceased,) on behalf of MILES MIKKELSEN,) JERRET MIKKELSEN and ALLISON) MIKKELSEN, the minor children of) Kelly Mikkelsen, deceased, and on) behalf of DENNIS MIKKELSEN,) natural father of Kelly Mikkelsen,) deceased; and on behalf of TAYLOR) R. FOX, a minor, by her next friend) and natural mother, TRACY FOX-) ) TANGA, ) ) Plaintiffs, ) ) vs. ) C O R R E C T I O N A L H E A L T H) RESOURCES, INC., a foreign) corporation; KENNETH L. FAIVER) and JANE DOE FAIVER, husband and) wife; JOSEPH EDWARD RICH, M.D.) and JANE DOE RICH, husband and) wife; DOES I through V, inclusive, ) ) ) Defendants. ______________________________ ) ) )

No. CIV 02-2252-PHX-JAT PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION IN LIMINE TO PRECLUDE TESTIMONY OF ANY PROFESSIONAL, DOCTOR OR OTHER EXPERT AS TO WHAT CONSTITUTES "DELIBERATE INDIFFERENCE" IN A SECTION 1983 ACTION

(Assigned to the Honorable James A. Teilborg)

Plaintiffs hereby respond to Defendants' Motion In Limine To Preclude Testimony of
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Any Professional, Doctor, or Other Expert as to What Constitutes "Deliberate Indifference"
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in a Section 1983 Action. Defendants argue that no expert may testify as to "what constitutes `deliberate indifference'" for purposes of Section 1983. Plaintiffs have not submitted such evidence to date and do not intend to have any expert define "deliberate indifference" for the jury at trial. The issue bears some discussion, however, since there is nothing which would prevent an expert from expressing his opinion that certain conduct by Defendants was, in fact, deliberately indifferent. Defendants rely upon two cases from the 6th Circuit for the proposition that "deliberate indifference" is a legal term that must be defined for the jury by the Court, and may not be defined by expert testimony that simply tells the jury how to rule. Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994) involved an expert who was no more qualified to testify regarding the effect of policy disciplinary procedures than any member of the jury. 25 F.3d at 1352. This unqualified expert was expressly asked to define the "legal term" "deliberate indifference" for the jury, which he proceeded to do. 25 F.3d at 1353. The "expert" testified that "deliberate indifference" was "conscious knowledge of something and not doing anything about it," and that it is sometimes "described as being gross negligence when you don't do something that you obviously need and must do." Id. The court noted that "gross negligence" was not sufficient to ground liability under Section 1983, so the witness had equated gross negligence with "deliberate indifference" in order to bring his opinion that the defendant was grossly negligent within the ambit of Section 1983. Id. The Berry court concluded that the testimony should not have been admitted, since it was unfounded, unhelpful to the jury, and it defined a legal term and simply told the jury what result to reach. 25 F.3d at 1353-54. The 6th Circuit followed Berry in Woods v. Lecureux, 110 F.3d 1215 (6th Cir. 1997). The expert witness in Woods had also attempted to define what he described as the "legal term" "deliberate indifference" for the jury, and the court held, in light of Berry, that such testimony was properly excluded by the trial court, within the trial court's discretion. 110 F.3d at 1219-20. The appellate court could, just as easily, have affirmed the admission of such testimony within the trial court's discretion. Woods noted that the expert would have
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been permitted to give his opinion on the ultimate fact issue as to whether the defendant was deliberately indifferent "in the way an ordinary layman would ...describe such conduct." 110 F.3d at 1220, citing Heflin v. Stewart County, 958 F.2d 709 (6th Cir.), cert. denied, 506 U.S. 998, 113 S. Ct. 598 (1992). So it is clear, even in the 6th Circuit, that an expert may give an opinion on the ultimate fact issue as to whether the defendant was deliberately indifferent, so long as the expert speaks in commonly-understood lay terminology and does not attempt to define "deliberately indifferent" in legal terms. In Heflin, the plaintiff's expert witness testified to the standard of care required of jail officials in providing medical care to inmates and to the defendants' violations, concluding with the opinion that the defendants "were deliberately indifferent to Mr. Heflin's needs for emergency care which could have saved his life" by leaving him hanging in his cell for 20 minutes after discovering his apparent suicide. 958 F.2d at 715. The Court found that the admission of the testimony was not error: Totten did not claim to be an expert on the legal requirements for recovery from jail officials for dereliction of duty. He testified concerning the proper procedures to be followed in the situation faced by the defendants. After setting forth in detail the manner in which the defendants failed to follow approved procedures, he stated that in his opinion this conduct demonstrated deliberate indifference to Heflin's need for "emergency care which could have saved his life." The testimony merely emphasized the witness's view of the seriousness of the defendants' failures. Given the generality of the test, "will assist the trier of fact," we find no abuse of discretion in admitting this testimony.

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Expert testimony on an ultimate issue is expressly permitted under Fed. R. Evid. 704,

21 which did away with the old objection that the testimony invaded the province of the jury or 22 embraced an ultimate issue. Northrop Architectural Sys. v. Lupton Mfg. Co., 437 F.2d 889, 23 891 (9th Cir. 1971). Rule 702 permits expert testimony comparing conduct of parties to the 24 industry standard. Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 803 F.2d 454, 461 (9th 25 cir. 1986). Indeed, an expert may use legal terms and reference to the law in expressing or 26 explaining opinion testimony regarding the standard of care. Hangarter v. Provident Life 27 28 3 Case 2:02-cv-02252-JAT Document 271 Filed 10/25/2005 Page 3 of 6

1 and Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004).1 If the expert is qualified and the 2 testimony is helpful to the jury, the testimony should be admitted per rules 702-704. 3

Expert testimony that defendants' conduct was, or was not, "deliberately indifferent" is

4 helpful to jurors in a section 1983 claim involving medical care for a prisoner: "These 5 opinions could be helpful to jurors who are not familiar with jails, inmates, or the challenges 6 faced by those who run jails." Terry v. Rice, 2003 U.S. Dist. LEXIS 6759 (S.D. Ind. April 7 18, 2003) (citations omitted). The court in Terry approved the admission of expert testimony 8 that concluded that the defendants' conduct was "deliberately indifferent." The court rejected 9 defendants' argument that the opinions embraced an ultimate legal issue and were not helpful 10 to the jury, finding that the opinions were helpful to the jury in, inter alia, establishing how 11 obvious the danger was and showing that the defendants should have been aware of the 12 danger to the inmate.

The court concluded: "Contrary to defendants' argument, neither

13 expert's opinion attempts to define explicitly the legal term `deliberate indifference,' which 14 will be part of the court's jury instruction. The opinions do not reach a legal conclusion. 15 Rather, both opinions...discuss the facts of the case, conclude that those facts amount to 16 deliberate indifference, and explain those conclusions. Whether deliberate indifference 17 occurred is a fact question for the jury. The fact that it is also the ultimate issue of the case 18 does not render an opinion on that fact inadmissible." Id., citing Fed. R. Evid. 704(a); Walker 19 v. Soo Line R. Co., 208 F.3d 581, 587, n.2 (7th Cir. 2000). 20

Accordingly, it should be clear that, so long as Plaintiffs' experts do not attempt to

21 instruct the jury on legal terminology, they are free to express their opinion that Defendants' 22 conduct was, in fact, deliberately indifferent, just as Plaintiffs' experts are entitled to express 23 their opinion that Defendants' conduct was substandard - - violated the applicable standard of 24 care. Heflin, supra; Woods, supra; Terry, supra. 25

A ruling on this issue is more properly made at time of trial, when the Court has before

26 it the actual question and/or testimony. Defendants have not pointed to any testimony by any 27 28 Indeed, in a medical negligence case - without expert testimony that the defendant's conduct failed to meet or violated the applicable standard of care - the defense generally would be entitled to judgment as a matter of law. 4 Case 2:02-cv-02252-JAT Document 271 Filed 10/25/2005 Page 4 of 6
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1 of Plaintiffs' experts that they contend is inadmissible. Accordingly, there is nothing to 2 exclude at this point. 3

WHEREFORE, Plaintiffs respectfully request that this Court enter an order denying

4 Defendants' motion in limine to preclude expert testimony as to what constitutes "deliberate 5 indifference." 6 7 8 9 10 11 12 13 14 15 16 17 18 RESPECTFULLY SUBMITTED this 25th day of October, 2005.

BEALE, MICHEAELS & SLACK, P.C.

By

/s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen

CLARK & MOORE

By

/s/ John A. Micheaels (with authorization) A. James Clark 256 South Second Avenue, #E Yuma, Arizona 85364 Attorneys for Plaintiffs Miles, Jerret and Allison Mikkelsen

19 delivered this 25th day of October, 2005, to: 20 Clerk of the U.S. District Court 21 Phoenix, Arizona 85003

Original/Copy of the foregoing mailed/

401 West Washington Street

22 Honorable James A. Teilborg 23 401 West Washington Street

U. S. District Court

Phoenix, Arizona 85003

24 25 A. James Clark, Esq. 26 256 South Second Avenue, Suite E 27 Attorneys for Plaintiffs Rebecca Mikkelsen, et al, 28 James W. Barnhouse, Esq.

CLARK & MOORE

Yuma, Arizona 85364

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RENAUD, COOK, DRURY & MESAROS, P.A.
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1 One North Central Avenue, #900 2 Attorneys for Defendants Correctional 3 4 ABOUD & ABOUD

Phoenix, Arizona 85004

Health Resources, Inc., Faiver and Rich

Michael J. Aboud Esq. 100 North Stone Avenue, #303 Co-Counsel for Plaintiff Fox Mary K. Boyte, Esq.

5 Tucson, Arizona 85701 6

7 BOYTE & MINORE, P.C. 8 Yuma, Arizona 85364 9 10

150 W. Second Street

Co-Counsel for Plaintiff Fox

By /s/ Sue Ketz
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