by Douglas Ankney

On August 22, 2019, the United States District Court for the District of Nebraska denied the “Motion to Strike Expert Declarations” (Motion) that was filed by the Nebraska Department of Correctional Services (NDCS).

Prisoner Hannah Sabata and other prisoners (Plaintiffs) within the custody and control of the NDCS filed a proposed class action against NCDS, its administrators, and medical staff (Defendants), asserting violations of Plaintiffs’ civil and constitutional rights. Plaintiffs allege that NDCS prisons are “overcrowded, under-resourced, and understaffed” and, as a result, the defendants consistently deprive the plaintiffs of “adequate health care, including medical, dental, and mental health care” and “accommodations for their disabilities.”

Plaintiffs offered several expert declarations in support of their motion for class certification. Defendants moved to strike the declarations. The declarations are described, in part, as follows:

* Margo Schlanger, law professor at the University of Michigan, provided a 53-page declaration describing her qualifications and the factual basis for her opinions. Her preliminary opinion was that “NCDS systematically fails to provide prisoners with disabilities with equal access to NDCS services, programs, and activities, and fails to communicate effectively with prisoners with communications-related disabilities.” Plaintiffs used professor Schlanger’s opinion to establish NCDS’ “complete control” over disability-related accommodations; to establish the Nebraska Board of Parole’s “centralized system” for administering parole reviews, and to establish numerosity.

* Eldon Vail, former correctional administrator, described his qualifications, experience, and data relied on to provide his opinion that the NCDS “policies and practices create a substantial risk of harm to all NCDS prisoners in the form of exposure to dangerous segregation units.” Plaintiffs used Vail’s declaration to establish commonality.

* Craig Haney, M.A., Ph.D, professor of psychology and the UC Presidential Chair at the University of California, Santa Cruz, described his qualifications, experience, and facts relied on to reach his opinions, including tours of NCDS facilities and face-to-face interviews with prisoners. Haney opined that “the conditions of confinement in the NDCS isolation units ... are exactly the type of conditions that my own experience and study and decades of scientific research have found to place all prisoners at significant risk of serious harm.” Plaintiffs used Haney’s declaration to establish commonality.

* Pablo Stewart, M.D., a board-certified psychiatrist, based his opinions on NDCS’ policies, the plaintiffs’ medical files, deposition transcripts of NDCS officials, his tours of six NDCS facilities, and review of files of random individual prisoners receiving psychiatric care. Stewart’s preliminary opinion was that “NDCS lacks systems and resources needed to ensure that prisoners with mental illness are identified and treated in the manner necessary to prevent serious harm or death,” and that “the shortage of mental health staff, structural deficiencies in the provision of mental health treatment and medications are statewide systemic problems.”

* Jay Shulman, DMD, MA, MSPH, was of the opinion that “the consistently inadequate dental care documented in the records I reviewed is attributable to systemic problems caused by inadequate dentist staffing and inadequate policies and procedures in the NDCS’s Dental Department.”

* Marc Stern, M.D., MPH, was retained to evaluate health-care services provided by NDCS to its prisoners and “whether and, if so, how the health care policies and practices of NDCS impact all Plaintiffs, putting them all at a substantial risk of serious harm, regardless of their individual medical histories.”

In general, defendants argued that the declarations should be stricken because they contained legal conclusions; irrelevant and unsupported statements and assumptions; were based on insufficient facts and/or data and flawed methodology; and because they offered opinions on the merits of the case rather than class certification.

The District Court opined that the Court is “to serve as gatekeeper to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). However, this “gatekeeping function” applies to evidence “submitted to the jury,” so “[t]here is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604 (8th Cir. 2011). Because the main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony, that interest is not implicated at the class certification stage where the judge is the decision maker. Id. At the class certification stage, the court is to “examine the reliability of the expert testimony in light of the existing state of the evidence and with Rule 23’s [class certification] requirements in mind.” Id. The court’s review of expert disputes is limited to whether, if the plaintiff’s allegations are true, the common evidence could suffice to show class-wide injury. Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005).

In the instant case, the Court found that the expert opinions were sufficiently reliable in assisting the Court to determine if the Plaintiffs had demonstrated Rule 23’s requirements of “numerosity, commonality, typicality, and fair and adequate representation” of the proposed class. Accordingly, the Court denied the defendants’ motion. See: Sabata v. Nebraska Department of Correctional Services, No. 4:17CV3107 (D. Neb. 2019).

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