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Sabata v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

August 22, 2019

HANNAH SABATA, et al, on behalf of themselves and all others similarly situated, Plaintiffs,


          Michael D. Nelson United States Magistrate Judge

         This matter is before the Court on the Defendants' Motion to Strike Expert Declarations (Filing No. 351). Defendants move to strike the entire expert declarations of Margo Schlanger (Filing No. 249-50), Eldon Vail (Filing No. 249-47), Craig Haney (Filing No. 249-42), and Pablo Stewart (Filing No. 249-38), and portions of the expert declarations of Jay Shulman (Filing No. 249-53) and Marc Stern (Filing No. 249-58) offered by Plaintiffs in support of their Motion for Class Certification (Filing No. 247). Defendants argue the above expert testimony should be stricken because it does not meet the requirements of Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), nor do the opinions aid the Court's determination of the requirements of Rule 23 of the Federal Rules of Civil Procedure. For the following reasons, the Court will deny the motion.


         Plaintiffs, inmates within the custody and control of the NDCS, filed this proposed class action against Defendants NDCS and its administrators and medical staff, asserting violations of the plaintiffs' civil and constitutional rights. Plaintiffs' claims arise out of their allegations that Nebraska state prisons are “overcrowded, under-resourced, and understaffed, and that prisoners are “consistently deprived of adequate health care, including medical, dental, and mental health care, and denied accommodations for their disabilities.” (Filing No. 1 at p. 4). Plaintiffs have now moved for class certification and request that the Court certify an “NDCS Class” comprised of “all persons who are now, or will in the future, be subjected to the health care (including medical, mental health and dental care) policies and practices of NDCS.” The plaintiffs also seek certification of two subclasses, an “Isolation Subclass” comprised of “all NDCS prisoners who are now, or will in the future be, subject to conditions of confinement that provide limited contact with other prisoners, strictly controlled movement while out of cell, and out-of-cell time of less than twenty-four hours per week, ” and a “Disability Subclass” comprised of “all persons with disabilities who are now, or will in the future be, confined at any NDCS facility.” (Filing No. 247).

         Plaintiffs offered several expert declarations in support of their motion for class certification. Defendants seek to strike the entirety of four expert declarations, and portions of two additional declarations, described below:

• Margo Schlanger, a Professor of Law at the University of Michigan, retained to provide her opinion on the Nebraska state prison system's “disability-related policies, practices, and procedures.” In Professor Schlanger's 53-page declaration, she describes her qualifications, experience, and factual basis for her opinions, and states her partial and preliminary opinion that “NDCS 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.” (Filing No. 249-50). Plaintiffs use Professor Schlanger's opinion to establish NDCS' “complete control” over disability-related accommodations (Filing No. 250 at pp. 27-32) and the Nebraska Board of Parole's “centralized system” for administering parole reviews (Filing No. 250 at pp. 32-33), and to establish numerosity (Filing No. 250 at p. 37).
• Eldon Vail, former correctional administrator, retained to offer his opinions “on the effects of overcrowding and understaffing in the [NDCS], and on whether or not the overcrowding and understaffing at NDCS impact and/or create dangerous conditions for their prisoner population.” Vail describes his qualifications, experience, and data relied on to provide his opinion that the NDSC's “policies and practices create a substantial risk of harm to all NDCS prisoners in the form of exposure to dangerous segregation (restrictive housing) units, ” which risk of harm is “common to all NDCS prisoners, and can be remedied by system-wide changes in the way NDCS manages and staffs its institutions, and in the way it uses segregation (restrictive housing).” (Filing No. 249-47). Plaintiffs use Vail's declaration to establish commonality. (Filing No. 250 at p. 41).
• Craig Haney, M.A., Ph.D, Professor of Psychology and the UC Presidential Chair at the University of California, Santa Cruz, retained to provide opinions on the “negative psychological consequences of solitary or isolated confinement” (i.e., “restrictive housing”), whether/how those consequences are exacerbated for prisoners suffering from serious mental illness, and the extent to which NDSC prisoners are placed at risk of psychological harm from solitary-type confinement. Haney describes his qualifications, experience, and facts relied on to reach his opinions, including his NDCS facility tours and face-to-face interviews with a sample of NDCS prisoners. Dr. Haney offers his opinion 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.” (Filing No. 249-42 at pp. 8-9). Plaintiffs use Haney's declaration to establish commonality. (Filing No. 250 at p. 41).
• Pablo Stewart, M.D., a board-certified psychiatrist retained to opine on the NDCS's policies and practices regarding mental health services provided to its prisoners. Dr. Stewart bases his opinions on NDCS's policies, the named plaintiffs' medical files, deposition transcripts of NDCS officials, and his tours of six NDCS facilities and review of files of random individual prisoners receiving psychiatric care. Dr. Stewart offers a preliminary opinion that “NDCS lacks the 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.” (Filing No. 249-38).
• Jay Shulman, DMD, MA, MSPH, retained to provide an opinion as to “whether there are current systemic deficiencies in the dental care provided by the [NDCS] that are amenable to a common remedy that will reduce the risk of harm to prisoners.” Dr. Shulman is 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.” (Filing No. 249-53).
• Marc Stern, M.D., MPH, retained to evaluate the health care services provided by the 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.” (Filing No. 249-58).

         Broadly speaking, Defendants argue that the above declarations should be stricken in whole or in part because they contain legal conclusions, irrelevant and unsupported statements, and assumptions, are based on insufficient facts and/or data and flawed methodology, and because they offer opinions on the merits of the case rather than class certification. Defendants additionally argue that many of the experts offer opinions outside of their qualifications and expertise. See generally, Filing No. 353.


         Rule 702 of the Federal Rules of Evidence provides that an expert ...

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