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Joseph Demouchette, Jr., et al v. Sheriff of Cook County Thomas Dart

December 14, 2012

JOSEPH DEMOUCHETTE, JR., ET AL., PLAINTIFFS
v.
SHERIFF OF COOK COUNTY THOMAS DART, IN HIS OFFICIAL CAPACITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Arlander Keys United States District Court

Judge John J. Tharp, Jr.

Magistrate Judge Arlander Keys

MEMORANDUM OPINION AND ORDER

On September 28, 2008, Joseph Demouchette, a pre-trial detainee, hung himself in a jail cell operated by the Cook County Department of Corrections ("CCDC"). His mother and his minor children (the "Plaintiffs") sued the Sheriff of Cook County and numerous individual defendants, alleging claims under 42 U.S.C. §1983, as well as various state law claims, including claims of wrongful death, intentional infliction of emotional distress, and negligence, a survivor action and an indemnification claim.

The case is before the Court on Defendants' Joint Motion to Exclude the Testimony of Robert Greifinger, M.D. and Thomas F. Norris [151]. For the reasons explained below, the motion is denied.

Pursuant to Federal Rule of Civil Procedure 26(a)(2), Plaintiffs have named Robert Greifinger, M.D. and Thomas Norris to provide opinion testimony and expert report. Mot. at Exs. 2-4. Defendants argue that the methodology used to formulate the opinions is flawed and based upon nothing more than speculation and conjecture, and that Dr. Greifinger and Mr. Norris's opinions are irrelevant at this stage in the litigation. Therefore, Defendants request that the Court exclude the testimony of Dr. Greifinger and Mr. Norris.

Plaintiffs respond that both Dr. Greifinger and Mr. Norris are sufficiently qualified in their respective fields, utilized reliable methodologies, and offer relevant opinions that will assist the trier of fact. Plaintiffs request that the Court deny Defendants' motion.

Factual Background

The Amended Complaint alleges that Mr. Demouchette, a heroin addict who had previously been held several times at the CCDC on charges related to his illegal drug use, was arrested on September 27, 2008 and placed in the jail as a pretrial detainee. Amend. Compl. at ¶¶ 12-14. In contrast to his prior detentions, Mr. Demouchette was arrested on this occasion for domestic battery. Upon his arrival, Mr. Demouchette underwent a medical screening by Cermak Health Services ("Cermak"), which operates medical services at the CCDC for Cook County. The medical intake form shows that Mr. Demouchette admitted to using tobacco, but answered "no" to other questions involving his substance use, including alcohol, methadone, and all illicit drugs. Mot. at Ex. 6. Cermak also undertook a Brief Primary Psychological Screening of Mr. Demouchette, in which he again denied using drugs, feeling suicidal, or having attempted suicide in the past.

Mr. Demouchette was subsequently placed in the general population of the CCDC in Tier 2-H with cellmate Adair Davidson. According to Mr. Davidson's later statement, Mr. Demouchette was experiencing both physical and emotional distress when he was placed in Tier 2-H on the evening of September 27. For example, Mr. Demouchette expressed concerns about relations with his girlfriend and told Mr. Davidson the next morning that he had even considered committing suicide because of tensions in his relationship. Mr. Demouchette was also visibly ill and vomited two or three times when he first arrived in Tier 2-H. He mentioned to Mr. Davidson that he was "dope sick" because for the past twenty-four hours he had been off heroin, a drug which Mr. Demouchette allegedly took in large quantities, and he told Mr. Davidson that his addiction had also contributed to his suicidal feelings. Amend. Compl. at pp. 6-7.

According to the Amended Complaint, Mr. Demouchette tried to attract the attention of guards throughout the night of September 27, to no avail, and the next day, he began telling Mr. Davidson that he planned to "fake hang" himself in order to get medical attention at the Cermak Hospital. Amend. Compl. at ¶¶ 20-22.

Mr. Davidson asked him to wait until the correctional officer on duty returned to the area, but Mr. Demouchette tied his bed sheet to a window, placed the sheet around his neck, and began to act on his threat. Agitated by what he was witnessing, Mr. Davidson called out to other inmates and the correctional officer on duty for help, but he did not personally interfere for fear of creating more harm than good. By the time the CCDC officer arrived, Mr. Demouchette had already become unconscious, and his face and fingernails had turned pale. Paramedics arrived on the scene and began transporting Mr. Demouchette to Mt. Sinai Hospital, where he was pronounced dead. Id. at ¶¶ 31-36. An autopsy performed the following day at the Cook County Medical Examiner's Office confirmed that Mr. Demouchette's death was a suicide caused by hanging. Id. at ¶ 37.

Standard of Review

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and by the principles announced in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Rule 702 provides that if "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue," a witness who is "qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise."

Under Daubert and Kumho, the Court is required to act as "gatekeeper," admitting only that expert testimony that passes a "flexible" test involving the consideration of a variety of factors intended to gauge the reliability and relevance of the evidence. For expert testimony to be admitted, the movant must establish that the expert testimony is both reliable and helpful in assisting the trier of fact in understanding the evidence or determining a fact at issue in the case. Bullock v. Sheahan, 519 F. Supp. 2d 760, 761 (N.D. Ill. 2007). "The rejection of expert testimony is the exception rather than the rule, and the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system."

Id. (quoting Spearman Indus. v. St. Paul Fire & Marine Ins. Co., 128 F. Supp. 2d 1148, 1150 (N.D. Ill. 2001)). The Court must also keep in mind that the question of whether the expert is credible or whether the theories being applied by the expert are correct, is a "factual one that is left for the jury to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based." Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000)(citing Walker v. Soo Line R.R., 208 F.3d 581, 589-90 (7th Cir. 2000)).

Discussion

I. Dr. Greifinger

Dr. Greifinger is a licensed physician. He has practiced in the field of correctional medicine for the past 20 years. From 1987-1995, he worked at the New York City's jail and then was the Chief Medical Officer for the New York State Department of Correctional Services. Mot. at Ex. 3. From 1995 to the present, Dr. Greifinger has consulted in the design, management, and quality improvement programs for correctional health care systems. Id. At the request of Plaintiffs, Dr. Greifinger has provided an initial report and a supplemental report setting forth his background, the materials he has reviewed relevant to this case, his findings, conclusions and opinions. Mot. at Exs. 3 and 7.

In this case, Dr. Greifinger opines that there was deficient safety and supervision, deficient screening and lack of privacy, deficient emergency response time, excessive lock down time, and deficient mental health care at the CCDC, which increased the risk of Mr. Demouchette's successful suicide. Mot. at Ex. 3, p. 5 and Ex. 5 at 57:17-58:7; 101:14-102:6; 104:16-106:21.

Defendants set forth three arguments as to why Dr. Greifinger's expert testimony should be excluded: (1) Dr. Greifinger is not qualified to offer expert testimony regarding security issues; (2) Dr. Greifinger's opinions and the methodology used in formulating them ...


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