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Lewis v. Cain

United States District Court, M.D. Louisiana

October 23, 2017



          SHELLY D. DICK, JUDGE.

         Before the Court is the Defendants' Motion for Clarification of and Relief From Ruling on Motion to Exclude Testimony of David Thomas.[1] The motion is opposed.[2] The Defendants filed a Reply.[3] The Court has reconsidered its earlier Ruling[4]and for the reasons set forth below, vacates its Ruling in part.


         This is a putative class action brought by inmates at Louisiana State Penitentiary (“Angola”). Plaintiffs allege, inter alia, that the medical care delivered at Angola is medically deficient.[5] Plaintiffs allege that:[6]

• Defendants routinely delay evaluation, treatment, and access to specialty care;
` Defendants routinely deny medically necessary treatment;
• Defendants fail to provide and manage medication in accordance with prescriptions and medically appropriate treatment courses;
• Defendants fail to maintain adequate medical records to ensure adequate treatment and follow-up care;
• Defendants create barriers or discourage access to care through the use of a “Malingering rule”; and Defendants' medical staffing falls below the acceptable standard of care.

         On the question of the standard of medical care delivered at Angola, Defendants designated David L. Thomas, MD to provide opinion testimony.[7] Plaintiffs moved to exclude Dr. Thomas' opinion testimony.[8] The Court granted the Plaintiffs' Daubert [9] Motion and excluded Dr. Thomas' opinion testimony.[10] Defendants seek clarification of and/or relief from of the Court's Ruling or, alternatively, move the Court to grant an extension of deadlines to enable Defendants to retain a substitute expert. Specifically, Defendants seek clarification of the Court's order regarding Dr. Thomas' standard of care opinions and whether the Court's order excludes Dr. Thomas' testimony in its entirety or is limited to his opinions which are foundationally derived from unidentified staff and inmates interviewed and the unspecified policies and directives reviewed.[11]


         Inasmuch as there remains confusion about the scope and intent of the Court's Ruling, the Court herein clarifies and provides supplemental reasons.

         Dr. Thomas “was asked to provide opinions regarding the care provided by the Louisiana State Penitentiary at Angola.”[12] As to the delivery of medical care, Thomas concludes “the medical care at Angola is within the standard of care for correctional medicine.”[13] The majority of Dr. Thomas' report is comprised of conclusions or statements of fact upon which he bases his ultimate standard of care opinion.


         Under Daubert and Federal Rule of Evidence 702, a district court has broad discretion to determine whether a body of evidence relied on by an expert is sufficient to support that expert's opinion. Rule 702 requires courts to examine the reliability of an expert's sources. In this case, the principal sources of Dr. Thomas' opinions and conclusions are a one-day site visit to LSP where Dr. Thomas made observations, spoke to over 100 unidentified inmates, interviewed staff (many of whom are unidentified), reviewed medical records of the named Plaintiffs, reviewed other identified charts and records, and reviewed unspecified policies, procedures, guidelines and directives concerning the delivery of medical care at LSP. This Court found that, without identification of the inmates interviewed and specification of the specific policies, directives and guidelines relied upon to formulate his ultimate opinion that LSP delivers “an excellent quality of healthcare, ” Thomas' opinions and conclusions are untestable by the opponent and render the Court powerless to perform its gatekeeping function.[14]

         “The overarching goal of Daubert's gate-keeping requirement ... is ‘to ensure the reliability and relevancy of expert testimony.'”[15] Dr. Thomas' report reveals that he draws upon his experience and knowledge in the field of “correctional medicine” to reach his conclusions. In other words, his proposed opinion testimony is “experience-based”. As recognized by the Supreme Court, “there are many kinds of experts and expertise, [and] the Daubert inquiry is always fact-specific.”[16] The Court's gatekeeping function “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”[17]

         A. Reliability

         Throughout his report, Dr. Thomas relies on fact, without identifying the source of the fact or providing any foundational support for the fact. These facts then form the bases of his conclusion as to the quality of care. In its Ruling, the Court pointed out one such example.[18] Other instances of unsupported factual bases for his ultimate opinion include, inter alia:

• Thomas concludes that the Medical Director “has a good working knowledge of the medical inmates” which he attributes to the fact that “inpatients and outpatients knew him by sight.”[19]
• Thomas opines that “the levels and functions of the EMT's are consistent with good medical usage.”[20] He concludes this by observing that “[t]here are well trained paramedics who are trained and capable of administering medications” and “basic [EMT's] who have had advanced on-the-job- training as well as some formal training and . . . limited scope of practice.”[21] Dr. Thomas provides no foundation or reference to the facts which underpin his opinion. When asked in his deposition if he reviewed any EMT training materials, he could not recall.[22]
• Thomas opines that LSP medical staff was “knowledgeable, cooperative and willing to share information, ”[23] yet he fails to identify any source for this conclusion. What staff did he interview or observe?
• Thomas states that he specifically questioned unidentified[24] inmate orderlies and inmates they care for and concludes that “it is clear orderlies are limited to aiding [inmate patients] in activities of daily living.”[25] This supports his opinion that the opposing expert's criticism of the use of inmate orderlies falls below the standard of care is unfounded. Again, without identifying the inmate orderlies and inmate patients he “specifically questioned, ” the foundational basis for Thomas' opinion is untestable and unverifiable.
• In support of his opinion that “the operations of the medical and security services of [LSP] comport with those of other prisons and are within the standard of care, ”[26] Thomas examined “Healthcare Outcomes” and observes that “there were approximately 3100 specialty consults ordered in the past 12 months with almost 2000 of them completed.”[27]In his deposition, when asked what ‘healthcare outcomes” he reviewed, he stated that he reviewed “specialty consults” and “deaths.”[28] In evaluating whether the documented delays in obtaining specialty consults had negative health consequences he testified that he received “assurances” from two to three people at LSP.[29] In addition to assurances from 2-3 unidentified persons, he reviewed charts of 3 or 4 unidentified inmate patients who were referred for follow up specialty consultation.[30]

         B. Defendants' Arguments for Relief or Alternatively for Partial Admission of Dr. Thomas' Opinions

         The Defendants argue that Dr. Thomas provides some opinions “supported by testable identifiable data”[31] which should be admitted. The Court addresses below the specific opinions which Defendants contend are reliable and thus admissible.

         1. Opinions regarding the named Plaintiffs

         Defendants argue that:

[O]pinions regarding Plaintiffs are not addressed in the order granting Plaintiffs' motion. It is Defendants' belief that these opinions were not intended to be excluded by the Court's order, as such opinions are not based upon Dr. Thomas' interviews of unnamed inmates or his review of the policies, procedures, guidelines, and directives. The opinions regarding Plaintiffs are based on specific, identifiable records, which were also reviewed by Plaintiffs' experts, and thus, these opinions are able to be tested.[32]

         As to the named Plaintiffs, Thomas indicates that he is providing an “expert evaluation” of “the major alleged problems of each of the Plaintiffs, their care and treatment, and whether in the opinion of this expert it meets both the Constitutional requirement of access to care; a professional medical opinion; and having that opinion carried out with no barriers; as well as Standard of Care requirements for the treatment of incarcerated persons.”[33] Thomas reviews the history of each named Plaintiff's medical complaints, but in most cases, he fails to state any opinion as to the whether the applicable standard of care (which is never defined or elucidated by Thomas) was observed. The following recaps his analysis as to each named Plaintiff:

Alton Adams - No opinion as to standard of care. As to access to care he states that the patient “is pretty much seen on demand.”[34]
Alton Batiste - Opines that the patient “did not seek care in a timely fashion”[35] and opines that there are no “real issues with his medical care.”[36]
Otto Barrera - Opines that “[h]e is under adequate care.”[37]
Clyde Carter - No opinion regarding the standard of care. As to the collection of co-pays (an access to care issue) he opines: “This is the standard in Florida, the Federal Prison system and many others.”[38] He further opines that “[s]ick call requests result in a triage in all institutions and do not necessarily guarantee access to a physician level service.”[39]
Ian Cazenave - No opinion regarding standard of care, barriers, or access to care.
Ricky Davis - No opinion regarding standard of care, barriers, or access to care.
Cedric Evans - No opinion regarding standard of care, barriers, or access to care. Thomas opines that it is “not uncommon for a non-union of a bony fracture to have a wait-and-see approach.”[40]
Reginald George - No opinion regarding standard of care, barriers, or access to care.
Kentrell Parker - Thomas opines “his care has been timely and appropriate.”[41]
Lionel Parks - No opinion regarding standard of care, barriers, or access to care.
Farrell Sampier - Thomas opines that his “care has been well within good medical and correctional medical practice.”[42]
Lionel Tolbert - Thomas opines “acceptable medical care, evaluation, treatment and access.”[43]
John Tonubee - No opinion regarding standard of care, barriers, or access to care.
Edward Washington - Thomas opines his “medical care is appropriate, timely and within the good practice of medicine.”[44]
Rufus White - Thomas opines his “medical care has been good and within the accepted standard of care for correctional medicine.”[45]
Edward Giovanni - Thomas opines that his “medical care is quit consistent with the standard of care for correctional medicine.”[46]
Joseph Lewis - Thomas notes that “Plaintiffs' experts use this patient to claim that the sick call mechanism at LSP is inadequate and leads to delays, ”[47] and, while he opines that this “is erroneous, ” he provides no opinion regarding standard of care, barriers, or access to care.[48]
Shannon Hurd - Thomas opines that his “medical care seems quite appropriate.”[49]

         Of the 18 named Plaintiffs, Dr. Thomas provides no opinions as to whether the care delivered meets the applicable standard of care as to 9 of them. By his own account, he was retained as a standard of care expert, yet he fails to opine as to the standard of care delivered to half the named Plaintiffs whose records he reviewed. Nonetheless, Dr. Thomas is qualified by experience and education to opine as to the level of care provided the named ...

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