Gohranson v. Snohomish County et al

RESPONSE

W.D. Wash.March 11, 2019

PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 1 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE HONORABLE ROBERT S. LASNIK UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JOHN T. GOHRANSON, et al., Plaintiffs, v. SNOHOMISH COUNTY, et al., Defendants. Case No. C16-1124RSL PLAINTIFFS’ RESPONSES TO DEFENDANT SNOHOMISH COUNTY’S MOTIONS IN LIMINE Plaintiffs ask the Court to deny, grant, or take under advisement Defendant Snohomish County (the “County”)’s Motions in Limine (Dkt. #124) as described below. 1. Exclude reference to any new theories of liability not pled in prior pleadings or discovery responses. Plaintiffs agree not to introduce any theory of liability or damages not raised in prior pleadings or discovery, subject to the Court’s authority to amend the pleadings to conform to the evidence when an issue is tried by the parties’ implied consent. See Fed. R. Civ. Pro 15(b)(2). 2. Exclude testimony regarding Plaintiffs’ emotional distress from litigation. Plaintiffs do not object to this motion in limine. Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 1 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 2 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Exclude any reference about what Plaintiff would do with money received as damages. Plaintiffs agree not to introduce testimony about what they would do with money received as damages. 4. Exclude any reference to the existence or number of other lawsuits against Snohomish County. It is proper to introduce evidence of other custodial deaths at the Snohomish County Jail because Plaintiffs are proceeding under a Monell theory of liability based upon the County’s deliberate indifference towards its inmate population as evidenced by the County’s pattern, practice, and customs, and its failure to ameliorate known risks. In the County’s cited authority for this motion, Quintanilla v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996), the Ninth Circuit held that it was not an abuse of discretion to exclude evidence of related claims precisely because liability under Monell was not at issue in that stage of a bifurcated case. It is certainly an issue here. Although prior acts of negligence cannot be used to prove the County was negligent in this instance, they are highly probative to establishing a pattern, practice, and custom of deliberate indifference to inmates’ medical needs. Furthermore, the prior events establish a history that Plaintiffs will offer to prove the County was aware of its grossly inadequate care, resulting in the deaths of inmates in its custody, and which led to several outside reviews. The County exhibited its deliberate indifference by not implementing necessary changes to stem the tide of constitutional violations occurring on its premises. One of the ways plaintiffs can prove deliberate indifference is by demonstrating the County’s failure to act in the face of a foreseeable consequence. See, e.g., Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002), overruled on other grounds by Castro v. County of Los Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 2 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 3 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Angeles, 833 F.3d 1060 (9th Cir. 2016). Plaintiffs intend to do so by, among other theories, showing that the consequences of their inaction leading to Lindsay Kronberger’s death were not only foreseeable, there was a history of similar events of which the County was clearly aware, and outside organizations expressly warned the County that its failure to act was either constitutionally deficient or could lead to preventable deaths or both. Based the foregoing, prior inmate deaths in the Snohomish County Jail, and resulting legal actions, are highly probative of a necessary element of Plaintiffs’ Monell claim. 5. Exclude any references by Plaintiff’s counsel stating or inquiring about any dollar amount for damages – or jurors’ comfort with the idea of awarding a particular dollar amount or range – in voir dire or opening statement. One touchstone of a fair trial is an impartial trier of fact. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984). “Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors.” Id. The Plaintiffs have a right to determine if potential jurors can fairly judge the issues and whether they are comfortable awarding damages. Because Plaintiffs cannot bring Lindsay Kronberger back to life, their remedy is limited to monetary damages. As such, potential jurors should be questioned at voir dire whether they would feel comfortable awarding an amount sufficient to make plaintiffs whole should they find in plaintiffs’ favor, as that is the law. Individuals with strongly held beliefs that issues such as Lindsay Kronberger’s death should not be addressed through the court system or that plaintiffs, should they prevail, are not deserving of damages, should be questioned about such biases at voir dire. Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 3 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 4 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Exclude any argument by Plaintiff that the death certificate or autopsy report is proof of causation. It is appropriate to introduce a death certificate as evidence to aid the fact-finder in determining a cause of death, unless its author admits to any underlying errors that would call into question its veracity. See Parra v. Life Ins. Co. of N. Am., 258 F. Supp. 2d 1058, 1068 (N.D. Cal. 2003). Plaintiffs intend to call the then-Snohomish County Medical Examiner who authored the death certificate to authenticate it, even though a certified copy of the same may be a self- authenticating public record under Evidence Rule 902(4). In addition, Plaintiffs will introduce expert medical testimony through Dr. Michael Jobin to prove causation between the County’s negligence and Lindsay Kronberger’s death. Dr. Jobin, however, is allowed to rely on the record— regardless of its admissibility—because a death certificate is among the data physician experts reasonably rely upon in the practice of their profession. See State v. Nation, 110 Wash. App. 651 (2002). 7. Exclude any mention by Plaintiff’s counsel that they represent “the family of Lindsay Kronberger.” Plaintiffs’ counsel do represent the family of Lindsay Kronberger. More specifically, they represent Lindsay’s surviving spouse, father, and her Estate. It is accurate, objective, and truthful to state that counsel represent “the family of Lindsay Kronberger.” Referring to counsel as such will neither confuse the jury nor unfairly prejudice the County. 8. Exclude Plaintiff’s expert Jane Grametbauer from offering any opinion as to the staffing levels of the Snohomish County Jail. The County seeks the extraordinary remedy of excluding one of Plaintiffs’ experts, Jane Grametbauer, from offering an opinion on nursing correctional protocols and staffing, a subject for which she is unquestionably qualified. In formulating her opinion, Ms. Grametbauer relied upon a Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 4 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 5 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plethora of documents and records, including but not limited to: Lindsay Kronberger’s jail medical records; the Medical Examiner’s records; the investigations by Snohomish County into Lindsay Kronberger’s death; the Jail nursing roster and nursing assignments; the video of the night in question; the depositions of nine nurses working inside the Snohomish County Jail during Lindsay Kronberger’s incarceration; and the September 16, 2013 NIC Operational Assessment. See Dkt. #98 (Grametbauer Decl.) at 29-37. In addition, she reviewed the reports of defense experts Andrew Saxon and Kathy Wild. Id. at 39. At her deposition, Ms. Grametbauer expressly testified that her opinion regarding staffing levels is based upon the testimony of nurses, the nursing schedules and rosters—"to see who was on duty and how many were on duty”—in addition to the NIC Operational Assessment. Dkt. #125-1 (“Grametbauer Dep.”) 153:2-14. The County seeks to exclude Ms. Grametbauer’s opinion because she testified in her deposition that she did not know what changes were implemented in the roughly three-month window between the NIC Report and Lindsay Kronberger’s death. Notwithstanding this selective quotation, which ignores that Ms. Grametbauer reviewed testimony of nurses regarding staffing levels and reviewed the actual nursing rosters and schedules, the County may cross-examine her on this opinion but not exclude it altogether. Her opinion should not be disqualified even if it relies, in part, on the NIC report because “[a]n expert is of course permitted to testify to an opinion formed on the basis of information that is handed to rather than developed by h[er]—information of which [s]he lacks first-hand knowledge and which might not be admissible in evidence no matter by whom presented.... [T]he judge must make sure that the expert isn't being used as a vehicle for circumventing the rules of evidence” Matter of James Wilson Associates, 965 F.2d 160, 172-73 (7th Cir. 1992). Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 5 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 6 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sheriff Trenary was asked at his deposition whether the Jail added new nursing staff between the date of the NIC report and Lindsay Kronberger’s death, to which he responded that the County repurposed staff and relied on contract staff, but did not hire any new billeted positions. See Dkt. #107-2 (“Trenary Dep.”) 50:12-51:3. These changes do not undermine the reliability of Ms. Grametbauer’s expert opinion, and are therefore not relevant to the analysis as to what opinions she may offer under Evidence Rule 702. The County's “recourse is not exclusion of the testimony, but, rather, refutation of it by cross-examination and by the testimony of [its] own expert witnesses.” Humetrix v. Gemplus, 268 F.3d 910, 919 (9th Cir. 2001). 9. Exclude Plaintiff’s expert Jane Grametbauer from offering any opinion as to the policies used by the Snohomish County Jail at the time of Ms. Kronberger’s death. The County once against selectively quotes Ms. Grametbauer. Although she admitted at her deposition she did not believe she reviewed all of the jail policies and procedures, she did review all policies introduced as exhibits at nine nurses’ depositions. These policies and procedures include, at a minimum: 1) POL-2426 Keeping & Storing Medical Records; 2) Pro-1500 C Module Operations-Officer Responsibilities; 3) PRO-1505E Special Housing-Medical Housing; 4) TASK- 1565AA5 Watches-Medical; 5) POL-2406 Maintaining Quality Assurance of Medical Services; 6) POL-2511 Defining Medical Emergency; 7) POL-2512 Delivering Emergency Care; and 8) POL- 2588 Referring & Caring for Prisoners with Drug & Alcohol Problems, which were introduced at and made part of the deposition of nurse Paul Bullard. As such, Ms. Grametbauer independently reviewed all relevant medical policies and procedures—including the Jail’s withdrawal policy— and is qualified to offer an opinion about them. Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 6 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 7 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Exclude Plaintiff’s expert Jane Grametbauer from offering any opinion regarding “callous ignorance,” “deliberate indifference,” or “callous disregard” by the nursing staff. “An opinion is not objectionable just because it embraces an ultimate issue.” ER 704(a). While Plaintiffs recognize that an expert cannot give “an opinion on an ultimate issue of law,” Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004), it is “sometimes impossible for an expert to render his or her opinion on a subject without resorting to language that recurs in the applicable legal standard,” United States v. Diaz, 876 F.3d 1194, 1198 (9th Cir. 2017). Accordingly, Plaintiffs do not intend to offer testimony that answers the jurors’ fact-finding questions for them. However, in describing the events leading to Lindsay Kronberger’s death, it is necessary to describe the acts and omissions by the County and its agents using language that may be similar to the legal standard. When Plaintiffs offer testimony describing the County’s failure to take obvious preventative measures, there are few words that encapsulate such indifference better than ‘indifference’. Plaintiffs, however, will not offer testimony in “an attempt to instruct the jury on the law, or how to apply the law to the facts of the case.” Diaz, 876 F.3d at 1194. 11. Exclude Plaintiff’s expert Michael Jobin from offering any opinion that the corrections deputies were callously or deliberately indifferent or showed callous disregard. As above, Plaintiffs do not intend to offer any impermissible legal opinions through Michael Jobin. 12. Exclude Plaintiff’s expert Robert Prevot from offering any opinions as to care provided by the medical staff of the Snohomish County Jail, as he lacks a medical background, and legal opinions. Robert Prevot has thirty-four years of experience in law enforcement, and has received training in, among other areas, internal affairs investigations and jail operations. Dkt. #109-1 Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 7 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 8 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“Prevot Report”) at 2. He has served in multiple roles within correctional facilities, including in administrative and supervisory capacities, and has personal experience investigating complaints of violations of police policies and procedures. Id. at 3. Mr. Prevot is qualified to offer opinions regarding jail operations, the conduct of correctional facility employees, and the sufficiency of their training and policies. Mr. Prevot’s testimony regarding the policies and procedures of the Snohomish County Jail and the County’s employees adherence thereto will aid the jury in determining whether the County’s lack of sufficient training and implementation of policy to address a known concern constituted a deprivation of constitutional rights. Plaintiffs do not intend for Mr. Prevot to offer any opinions for which he is not qualified to testify or any impermissible legal opinions. 13. Excluding Plaintiffs’ vocational rehabilitation expert, Cloie Johnson, from opining regarding Ms. Kronberger becoming a registered nurse, as she provides no basis for the opinion. Plaintiffs’ expert Cloie Johnson is a vocational rehabilitation expert, not a specialist in addiction medicine. Ms. Johnson bases her assumption that Lindsay Kronberger would have successfully overcome her substance abuse disorder based upon the expert opinion of Plaintiffs’ experts Richard Ries, MD, a professor of psychiatry and addiction medicine. “[A]n expert can appropriately rely on the opinions of others if other evidence supports his opinion and the record demonstrates that the expert conducted an independent evaluation of that evidence.” Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D. 534, 544 (C.D. Cal. 2012). Ms. Johnson’s opinion that Lindsay Kronberger could have achieved employment as a nursing assistant, licensed practical nurse, or registered nurse is based upon an interview with Lindsay’s father and a review of Lindsay’s educational, employment, and medical records. The records reflect that Lindsay majored Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 8 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 9 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in Nursing at Everett Community College. The test for admitting Ms. Johnson’s opinion “‘is not the correctness of the expert's conclusions but the soundness of h[er] methodology,’ and when an expert meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th Cir. 2014) (quoting Primiano v. Cook, 598 F.3d 558, 564-65 (9th Cir. 2010)). Under Rule 702, (1) the evidence has to assist the trier of fact to either understand the evidence or to determine a fact in issue, and (2) the witness has to be sufficiently qualified to render an opinion. “Challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge.” City of Pomona, 750 F.3d at 1044. The County’s challenge to Ms. Johnson’s testimony is no more than a challenge to her conclusion. She is qualified to render an opinion on Lindsay Kronberger’s employment prospects, has independently evaluated the evidence that forms the basis of her opinion, and her methodology is based on well researched and time-tested vocational techniques that are relevant and reliable. The County may, of course, challenge her methodology through cross-examination. 14. Exclude photographs of Ms. Kronberger from her childhood. Photographs of Lindsay Kronberger will be offered to show the trier of fact the woman whose life and untimely death is central to the upcoming trial. The photographs are relevant to show the longevity and strength of her bond with the plaintiffs, and to demonstrate her chances of recovery by depicting her life before addiction. Plaintiffs do not intend to overwhelm the jury with cumulative photographs. As such, they propose offering 10 photographs per plaintiff, without placing an arbitrary cutoff on their date. Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 9 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 10 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. Exclude portions of the video depicting corrections deputies dancing or fist bumping. The video from inside the Snohomish County Jail is among the best available evidence of the events directly preceding Lindsay Kronberger’s death. The County cannot introduce the portions it believes bolster its defense but selectively exclude those portions in which it is ashamed of the behavior of its employees. The County argues there is “absolutely no evidence to support th[e] contention” that deputies fist bumping and dancing outside Lindsay Kronberger’s cell was intended to mock her. It is the role of the jury to weigh the evidence, not the County. The complete video is necessary to show the acts and omissions of Jail staff during the final hours of Lindsay Kronberger’s life. It portrays the steps that were not taken in the face of a medical emergency and is relevant to proving the County’s negligent medical care, if not its systemic deliberate indifference based upon a failure to institute proper withdrawal protocols. 16. Exclude reference to the report authored by Kenneth Ray as the “NIC Report” and exclude any offering of that report as evidence of negligent conduct in their care for Lindsay Kronberger. The September 23-25 Assessment of Correctional Health Policy & Practice referenced by Defendants was sponsored by the Jails Division of the National Institute of Correction (“NIC”). The seal of the United States Department of Justice (“DOJ”) is displayed prominently on the cover of the report, the second page is on Department of Justice letterhead, and as it states on page two of the report, “[t]he United States Department of Justice National Institute of Corrections” assigned a DOJ/NIC technical consultant to conduct a review of the Snohomish County Jail. The formal name of the project is “NIC Technical Assistance No. 13J1075.” It is accurate to describe it as a DOJ Report or NIC Report or both. Defendants can introduce the disclaimer that the NIC Report’s contents reflect the views of the DOJ/NIC Technical Consultant assigned by DOJ, Kenneth Ray, Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 10 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 11 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and do not necessarily reflect the official views or policies of the NIC. As for the contents of the NIC Report, plaintiffs do not intend to offer it to show he Snohomish County Jail did not have health care policies, but instead that the NIC Report described them as egregiously insufficient for several reasons. See Dkt. #107-7. The NIC Report provides, in pertinent part, that • “Current jail health policies and procedures documents should be considered only as basic guidelines but require comprehensive reform.” Id. at 3. • “In general, [the Jail] operates with no approved health care policies and procedures. Interviews with nursing staff revealed that they ‘… just do what we are trained to do and look at what few protocols we have …’” Id. at 6. Based on these findings, the NIC Report recommends, among other things, that the Jail should develop health care policies, procedures, and protocols into “a single, comprehensive, and unified policy manual” that follows the content recommended by the National Commission on Correctional Health Care. Id. at 7-12. The NIC Report also recommends that the County “[d]evelop and implement evidence-based withdrawal intervention and treatment policies, procedures, and protocols.” Id. at 10. A separate report by the NIC, known as the Operational Assessment, was published September 16, 2013. See Dkt. #107-6. That report found the Jail’s policies were woefully lacking, which Sheriff Ty Trenary admitted in his deposition to be true. Q [by Ms. Moore]: Okay. So on Page 3739, it talks about how that your policies and procedures had been under review and had been occurring since 2009. And then it says that, We tended to discover that policies and procedures did not exist, or they were old, and, if they existed, they were not understood by staff and followed." Is that accurate as far as what you know about your policies and Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 11 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 12 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 procedures at the time of this audit in 2013? A [by Mr. Trenary]: That's what I recall, yes. Dkt. #107-2 (“Trenary Dep.”) 36:9-17. In sum, the NIC Reports do not state that no policy whatsoever existed. The reports are evidence, however, that the County was on notice that its policies were outdated, hard to find, and that staff lacked proper training to follow them. The criticism is regarding the sufficiency of the policy, which the County later produced in discovery. Indeed, Sheriff Trenary testified at his deposition that he did not expect “evidence based withdrawal intervention treatment policies, procedures and protocols” to be in place by January 1, 2014. Trenary Dep. 52:1-12. As for the policy in existence at the time, Plaintiffs’ experts will opine on the insufficiency of this policy. 17. Exclude evidence of subsequent changes to jail health care policies or standing orders as these constitute subsequent remedial measures. Plaintiffs do not object to this motion in limine so long as it applies mutually. If the County presents evidence of its updated policies, Plaintiffs reserve the right to cross-examine witnesses on this subject matter. 18. Exclude any reference to voluntary NCCHC standards or accreditation. The National Commission on Correctional Health Care (“NCCHC”) standards may, standing alone, exceed the threshold to prove deliberate indifference. But they are highly relevant in aiding a jury determine whether the County’s behavior was constitutionally deficient in the instant case. In a similar case in which plaintiffs brought 42 U.S.C § 1983 claims based upon their conditions of confinement in the Monterey County Jail, the district court referenced independent standards to assess the constitutionality of the jail’s policies and protocols. For example, the court found that the “[j]ail does not use the widely accepted and clinically validated Clinical Institute Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 12 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 13 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Withdrawal Assessment for alcohol scale, revised to assess inmates undergoing alcohol withdrawal.” See Hernandez v. Cty. of Monterey, 110 F. Supp. 3d 929, 949 (N.D. Cal. 2015). And with respect to screening for tuberculosis, the Court found that the jail’s practices did not conform to standards of the Centers for Disease Control. Id. at 942. Acknowledging that such a deficiency is not ipso facto a constitutional violation, the court wrote: The CDC guidelines are just that, guidelines. They are not mandatory regulations or standards. But known noncompliance with generally accepted guidelines for inmate health strongly indicates deliberate indifference to a substantial risk of serious harm. At least since the CDC released its guidelines, and since [the case’s neutral expert] issued his report showing Defendants' policies and practices fell below the constitutional standard of care, Defendants have known about the risks of harm but have not changed their practices. Id. at 942-43 (emphasis added). Plaintiffs intend to prove that a nearly identical pattern occurred at the Snohomish County Jail. As the Court is aware, several outside reviews of the County’s policies and procedures were conducted in the wake of custodial deaths at the Snohomish County Jail. A report sponsored by the National Institute of Corrections recommended, among other things, that the County develop health care policies, procedures, and protocols “into a single, comprehensive, and unified policy manual” that follows the outline and content recommend by the NCCHC. Dkt. #107-7 at 8. When this report was presented to Jail administrators by the County’s Health Services Administrator on October 11, 2013, the first heading of his presentation was that the County was “[n]ot meeting Constitutional requirement for care.” Dkt. #107-8 at 2. Much like in the case of Hernandez, it is evidence of deliberate indifference to show the combination of the County’s failure to meet ‘guidelines’ and its failure to change practices despite knowing about risks of harm. Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 13 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 14 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. Exclude any testimony by Dale Kronberger regarding the emotional distress he experienced after the death of his first child. Defendants take their plaintiffs as they find them. The death of Dale Kronberger’s first child is relevant to his damages, as this loss brought him closer to Lindsay, and made it all the more devasting to him that he was forced to bury a second child. The untimely loss of Dale Kronberger’s first son had a permanent effect on him, which was exponentially worsened due to Lindsay’s death. Dale Kronberger must be allowed to tell his whole story, as it is relevant to the pain and suffering he has endured from the events giving rise to this lawsuit. 20. Exclude any testimony by Plaintiffs’ expert as to the probability that Ms. Kronberger would successfully undergo addiction treatment. Plaintiffs’ expert Richard Ries is a professor of psychiatry and Director of the Addictions Division in the Department of Psychiatry and Behavioral Sciences at the University of Washington School of Medicine. See Dkt. #125-4 at 2. Dr. Ries is eminently qualified in the field of addiction medicine, having worked clinically with persons with opioid addictions for over 15 years. His opinion is based upon a review of Lindsay Kronberger’s employment, educational, and medical records; records from the Snohomish County Jail; and his experience as an opioid addiction treatment specialist and academic in the addiction field. Id. at 3. Dr. Reis will testify, based upon a reasonable degree of medical probability, that: a) It is more likely than not that Lindsay Kronberger would have survived for many years; b) That it is more likely than not she would have enrolled in opioid addiction treatment; and c) That it is more likely than not, had Lindsay attended opioid treatment, she would have had positive outcomes including health and sobriety, or decreased opioid use over time. Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 14 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 15 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The County argues that Dr. Reis’ opinion is based upon speculation because the County disagrees with his conclusion. But there are “no certainties in science.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 590 (1993). For scientific evidence to be admissible, the proponent must show the assertion is “derived by [a] scientific method.” Id. Opinion based on “unsubstantiated and undocumented information is the antithesis of ... scientifically reliable expert opinion.” Cabrera v. Cordis Corp., 134 F.3d 1418, 1423 (9th Cir.1998). The County’s designated vocational rehabilitation expert, Patricia Enriquez, who has no discernable medical background, intends to offer the opinion that Lindsay Kronberger’s chances of successfully completing drug treatment were very low. Authority to determine the victor in such a “battle of expert witnesses” is properly reposed in the jury. Wyler Summit P'ship v. Turner Broad. Sys., Inc., 235 F.3d 1184, 1192 (9th Cir.2000) (“Weighing the credibility of conflicting expert witness testimony is the province of the jury.”). 21. Exclude all evidence of other unrelated jail deaths. As explained in response to Motion in Limine no. 4, it is proper to introduce evidence of other custodial deaths at the Snohomish County Jail because Plaintiffs are proceeding under a Monell theory of liability based upon the County’s deliberate indifference towards its inmate population as evidenced by its failure to ameliorate known risks. The history of jail deaths over such a short period of time lead to several reviews by outsider organizations and the hiring of a physician to treat patients and revise medical policies (but who did neither by the time of Lindsay’s death). 22. Exclude expert reports from admission to the jury. Plaintiffs concede the expert reports are generally inadmissible hearsay, subject to the Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 15 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 16 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exceptions of ER 703. DATED: March 11, 2019. By: s/ Todd C. Nichols Todd C. Nichols, WSBA No. 15366 W. Mitchell Cogdill, WSBA No. 1950 Mark P. Giuliano, WSBA No. 49871 Cogdill Nichols Rein Wartelle Andrews 3232 Rockefeller Avenue Everett, Washington 98201 Ph: (425) 259-6111 / F: (425) 259-6435 toddn@cnrlaw.com wmc@cnrlaw.com mark@cnrlaw.com Karen D. Moore, WSBA No. 21328 Kenneth E. Brewe, WSBA No. 9220 Brewe Layman, P.S. 3525 Colby Avenue Everett, Washington 98201 Ph: (425) 252-5167 / F: (425) 252-9055 karenm@brewelaw.com kennethb@brewelaw.com Attorneys for Plaintiffs Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 16 of 17 PLAINTIFFS’ RESPONSES TO DEFENDANT’S MOTIONS IN LIMINE - 17 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned declares under penalty of perjury under the laws of the State of Washington that on this day, I electronically served the foregoing by email to the following: Joseph B. Genster, WSBA No. 14968 Katherine H. Bosch, WSBA No. 43122 Mikolaj T. Tempski, WSBA No. 42896 Deputy Prosecuting Attorneys Snohomish County Prosecuting Attorney Civil Division 3000 Rockefeller Avenue, M/S 504 Everett, WA 98201 Ph: (425) 388-6330 / F: (425) 388-6333 jgenster@snoco.org kbosch@snoco.org mtempski@snoco.org Attorneys for Defendant Snohomish County SIGNED AND DATED this 11th day of March 2019 at Everett, Washington. Mark P. Giuliano, WSBA No. 49871 mark@cnrlaw.com Case 2:16-cv-01124-RSL Document 146 Filed 03/11/19 Page 17 of 17