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Michaux v. Temas

United States District Court, W.D. Pennsylvania

December 5, 2019



          Joy Flowers Conti Senior United States District Judge.

         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 defendants[2] (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 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 Fed.Appx. 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 ...

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