United States District Court, W.D. Pennsylvania
JASON MICHAUX, JANAYE MICHAUX-ORRIS, CO-ADMINISTRATORS OF THE ESTATE OF GREGORY MICHAUX; Plaintiffs,
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,
Flowers Conti Senior United States District Judge.
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,  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 (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.
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).
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. §
• Count IV against all defendants in their individual
capacities for wrongful death under Pennsylvania law.
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
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
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).
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.
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).
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.
Motions to amend complaint and reopen discovery
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).
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.
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.
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
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).
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).
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.
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).
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.
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.
the motions for leave to file a fourth amended complaint (ECF
No. 66) and to reopen discovery (ECF No. 67) will be DENIED.
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
Generally Applicable Standards for Expert Testimony
Rule of Evidence 702 governs the admissibility of expert
testimony and provides:
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the ...