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Sabata v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

March 6, 2019

HANNAH SABATA, at al, Plaintiffs,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al, Defendants.

          ORDER

          MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court following a telephone conference held with counsel for the parties on March 4, 2019, to discuss the parties' disputes regarding the scheduling of the individual plaintiffs' depositions and whether Defendants are entitled to depose plaintiffs' experts prior to the disclosure of their expert reports. The parties submitted arguments by email to the undersigned magistrate judge, attached as Exhibits A and B.

         First, Defendants seek the Court's assistance in scheduling the individually named plaintiffs' depositions as soon as possible. Plaintiffs state they would prefer until March 20, 2019, to be prepared for those depositions. As stated on the record during the telephone conference, the parties shall work to schedule the individual plaintiffs' depositions no earlier than, but as early as March 18, 2019.

         The more difficult dispute concerns Defendants' request to take depositions of Plaintiffs' disclosed experts to respond to Plaintiffs' motion for class certification. In support of their motion for class certification, Plaintiffs submitted over 300 pages of “declarations” by six experts. Plaintiffs maintain that, because their experts have only provided expert declarations for class certification and not expert reports, depositions at this time are premature. Fed.R.Civ.P. 26(a)(2)(B) provides that an expert report must contain “all opinions the witness will express and the basis and reasons for them;” facts and data relied on by the expert; exhibits that will be used to support the opinions; the expert's qualifications; a list of the last 4 years of cases in which the witness testified as an expert; and a statement regarding the expert's compensation. See Fed.R.Civ.P. 26(a)(2)(B)(i)-(vi). Under Fed.R.Civ.P. 26(b)(4)(A), an identified expert may be deposed only after the expert has provided such report under Rule 26(a)(2)(B).

         The Court has reviewed Plaintiffs' expert declarations and accompanying documents filed in support of their motion for class certification. See Filing No. 249-38 - Expert Dec. of Dr. Pablo Stewart, M.D.; Filing No. 249-39 - Stewart C.V.; Filing No. 249-40 - Stewart List of Materials Reviewed; Filing No. 249-42 - Expert Dec. of Craig Haney; Filing No. 249-43 Haney C.V.; Filing Nos. 249-44 to 249-46 - Haney List of Materials Reviewed; Filing No. 249-47 - Expert Dec. of Eldon Vail; Filing No. 249-48 - Vail C.V.; Filing No. 249-49 - Vail List of Materials Reviewed; Filing No. 249-50 - Expert Dec. of Margo Schlanger; Filing No. 249-51 - Schlanger C.V.; Filing No. 249-52 - Schlanger List of Materials Reviewed; Filing No. 249-53 - Expert Report of Jay D. Shulman, DMD, MA, MSPH; Filing No. 249-54 - Shulman C.V.; Filing Nos. 249-55 to -57 - Shulman supporting materials; Filing No. 249-58 - Expert Dec. of Marc F. Stern, M.D., M.P.H.; Filing No. 249-59 - Stern C.V.; Filing Nos. 249-60 to -61 - Stern supporting materials). A review of each of these expert “declarations” (and in the case of Dr. Shulman, his expert report) show that these declarations contain each expert's background and qualifications, opinions and factual bases for those opinions, a list of materials reviewed, and the experts' Curriculum Vitae. Essentially, Plaintiffs have served the functional equivalent of expert reports under Rule 26(a)(2)(B). Accordingly, the Court finds that Defendants may depose the experts disclosed by Plaintiffs in support of the motion for class certification about the opinions and factual bases expressed by the experts in the disclosed reports. As stated on the record during the telephone conference, the parties shall work to schedule the plaintiffs' expert depositions no earlier than, but as early as March 25, 2019.

         IT IS SO ORDERED.

         Exhibit A

         MEMORANDUM

         Expert Depositions.

         Defendants must depose Plaintiffs' experts to respond to Plaintiffs' motion for class certification. Plaintiffs rely heavily on 323 pages of expert declarations to support class certification. Those declarations contain countless unsupported factual assertions purportedly based on unrecorded interviews with unidentified inmates and other unsupported observations of NDCS facilities. Plaintiffs intend for these declarations to have a major impact on the Court's determination of the certification-dependent issues. But Plaintiffs assert Defendants may not question their experts on these purported facts, their opinion, or methodology since the submissions by Plaintiffs' experts at this stage have been tactically labeled as declarations and not reports.

         “Expert disputes ‘concerning the factual setting of the case' should be resolved at the class certification stage only to the extent ‘necessary to determine the nature of the evidence that would be sufficient, if the plaintiff's general allegations were true, to make out a prima facie case for the class.'” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 611 (8th Cir. 2011)(quoting Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2005)). “[R]elevant expert testimony must be evaluated and weighed by the court before it decides to certify a class, ” even though the court is not required to “decide conclusively at the class certification stage what evidence will ultimately be admissible at trial.” Id. In doing so, it may be appropriate for a court to conduct a “focused Daubert analysis” to “scrutinize[] the reliability of the expert testimony in light of the criteria for class certification and the current state of the evidence.” Id. at 614.

         Defendants have consistently stated their concern with Plaintiffs' approach and the resulting prejudice to Defendants. Filing 71 at 23 (Rule 26(f) report); April 16, 2018, Telephone Conference; Filing 80 at 4; May 2, 2018, conference call; May 10, 2018 conference call; Filing 85. The Court recognized the significance of the issue in Filing 95 at 2 and directed the parties to meet and confer again after experts were disclosed. The parties did so at that time and were unable to reach an agreement. Defendants raised the issue again during a telephone conference with the Court on October 5, 2018, but an agreement was not reached. Filing 195. In December 2018 and February 2019 the parties conferred again but remain at an impasse.

         Plaintiffs' Depositions

         After initial consultation between the parties during the week of February 18, 2019, the parties agreed to the depositions of Plaintiffs and this Court granted Defendants' motion for leave to do so. Filing 254. Defendants advised Plaintiffs of their intent to have an accelerated timetable for the depositions and Defendants initially proposed the depositions would occur the week of March 4, 2019. Later, as a compromise position, Defendants offered to start ...


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