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Parish v. Sheriff of Cook County

United States District Court, N.D. Illinois, Eastern Division

April 17, 2018



          John Z. Lee Judge

         A certified class of pretrial detainees has brought this action pursuant to 42 U.S.C. § 1983 against the Sheriff of Cook County and Cook County. Plaintiffs allege that the Cook County Jail (CCJ) has policies and practices of denying or delaying medication prescribed to detainees when they enter CCJ. The class alleges that these policies and practices constitute deliberate indifference to their serious medical needs in violation of their due process rights under the Fourteenth Amendment. Defendants have moved to bar the testimony of four of Plaintiffs' experts: Dr. Steven Whitman, Dr. Pablo Stewart, Dr. Julie Holland, and Dr. Lambert King. For the reasons provided herein, the motions are denied.

         Legal Standard

         The admissibility of expert testimony is governed by Federal Rule of Evidence (“Rule”) 702 and the Supreme Court's seminal decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See United States v. Parra, 402 F.3d 752, 758 (7th Cir. 2005) (“At this point, Rule 702 has superseded Daubert, but the standard of review that was established for Daubert challenges is still appropriate.”). Rule 702 allows the admission of testimony by an expert-that is, someone with the requisite “knowledge, skill, experience, training, or education”-to help the trier of fact “understand the evidence or . . . determine a fact in issue.” Fed.R.Evid. 702. An expert witness is permitted to testify when (1) the testimony is “based on sufficient facts or data, ” (2) the testimony is “the product of reliable principles and methods, ” and (3) the witness has “reliably applied the principles and methods to the facts of the case.” Id. The proponent of an expert witness bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

         Under Daubert, the district court must act as the evidentiary gatekeeper, ensuring that Rule 702's requirements of reliability and relevance are satisfied before allowing the finder of fact to hear the testimony of a proffered expert. See Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999). District courts have broad discretion in determining the admissibility of expert testimony. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). In considering whether to admit expert testimony, district courts employ a three-part framework that inquires whether: (1) the expert is qualified by knowledge, skill, experience, training, or education; (2) the reasoning or methodology underlying the expert's testimony is reliable; and (3) the expert's testimony will assist the trier of fact in understanding the evidence or determining a factual issue. See Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893-94 (7th Cir. 2011).

         With regard to the reliability of an expert's methodology, courts consider factors such as whether the methodology can and has been tested, whether it has been subject to peer review, whether it has a known or potential rate of error, and whether it is generally accepted among the relevant community. See Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Daubert, 509 U.S. at 593-94). Under this framework, “shaky expert testimony may be admissible, assailable by its opponents through cross-examination, ” and criticisms of the testimony's quality speak not to admissibility but to the weight that the testimony should be accorded by the trier of fact. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010).


         I. Dr. Steven Whitman

         Plaintiffs rely on Dr. Steven Whitman to provide a quantitative analysis of CCJ's intake and prescription data. Dr. Whitman is a statistician, who analyzes health data. Whitman Report, ECF No. 188-1, at 2. He has a masters degree in biostatistics from the University of Pittsburgh and a PhD in biostatistics from Yale University. Id. at 13. He is currently the Director of the Sinai Urban Health Institute, a research institute that focuses on improving the health of urban communities using data analysis and community engagement. Id. at 2. He was formerly the Director of the Epidemiology Program at the Chicago Department of Public Health, as well as the Senior Epidemiologist at the Center for Urban Affairs at Northwestern University. Id. During his career as a biostatistician and epidemiologist, Dr. Whitman has been responsible for data collection and analysis in research studies about HIV, AIDS, breast and cervical cancer, asthma, diabetes, and epilepsy. Id. at 14-16. Dr. Whitman began his career in academia as a college math professor. Id. at 2.

         A. Qualifications

         Defendants first contend that Dr. Whitman is unqualified to provide an expert opinion in this case because he is an epidemiologist who studies diseases, not correctional medicine. Quantitative analytical skills, however, may be applied to any data set, regardless of subject matter. For example, in Obrycka v. City of Chicago, No. 07 C 2372, 2011 WL 2600554, at *7 (N.D. Ill. June 29, 2011), another court in this district held that Dr. Whitman was qualified to provide quantitative analysis regarding the rate at which investigations into allegations of police misconduct were found meritorious in certain police districts, as well as a comparison of that rate to rates in other police districts. Although that case had nothing to do with health data, Dr. Whitman was found to be qualified to perform a mathematical analyses of the data. Likewise, the Court holds that Dr. Whitman's experience in providing quantitative analyses of data throughout his career provides a sufficient foundation to proffer his quantitative analysis in this case.

         B. Reliability

         1. Reliability of the Methodology

         Defendants also attack Dr. Whitman's methodology. Dr. Whitman provides data analysis of CCJ's intake and prescription records with regard to certain non-psychotropic[1] and psychotropic[2] medications. Whitman Report, at 2. Dr. Whitman determines the length of time between the date a prisoner was prescribed medication at his or her intake examination (“prescribed date”) and the date that prescription was dispensed (“fill date”). Id. at 8-9. Dr. Whitman divides that data into five time periods: (1) October 1, 2006, to March 30, 2007; (2) October 1, 2007, to March 30, 2008; (3) October 1, 2008, to March 30, 2009; (4) October 1, 2009, to March 30, 2010; and (5) October 1, 2010, to March 30, 2011. Id. at 7. With regard to each medication analyzed, Dr. Whitman also determines whether there is a statistically significant difference between the prescription rates (i.e., the rates at which a prescription was filled) during the first and last time periods and the likelihood that the difference could be the result of chance. Id. at 111 (albuterol), 112 (amlodipine), 114 (enalapril), 116 (epilepsy medication), 117-18 (glipizide), 123-26 (insulin), 127-28 (metformin), 129-31 (metoprolol), 175-77 (chlorpromazine), 178-79 (chlonazepam), 180-182 (fluoxetine and sertraline), 182-83 (gabapentin), 184-85 (lorazepam and diazepam), 186-87 (venlafaxine).

         As an initial matter, Defendants move to bar Dr. Whitman because his analysis of compiled data was not available to them. Apparently, Plaintiffs had asked Defendants to contribute $6, 800 to help defray the cost of Dr. Whitman's compilation of Defendants' raw data.[3] Plaintiffs later requested that Defendants contribute only $1, 500. See Pl.'s Mem. Opp'n Mot. Bar Whitman, at 12 n.4, ECF No. 218. Plaintiffs wrote a letter to Defendants, stating that, based on Defendants' lack of response to the request for $1, 500, Plaintiffs assumed that Defendants had abandoned their request for production of the compilation. See Pls.' Ex. 92, 5/7/12 Letter from K. Flaxman to F. Catania, ECF No. 221-14. Plaintiffs asked Defendants to let them know whether their assumption was mistaken. See Id. Defendants have not pointed to any communication in which Defendants corrected Plaintiffs' assumption. Nor have Defendants relied on any court filings seeking to compel production of the compilation. A party cannot sit on its rights and later seek to bar the opposing party's expert simply because the expert's compilation was offered at a cost. In other words, the time to speak up was then, not now. Given these unique facts, this is not a situation in which an expert's data has not been made available to the opposing party. Therefore, the Court declines to bar Dr. Whitman's testimony on this ground.

         Next, Defendants contend that Dr. Whitman's method for tabulating the data is unclear. Putting aside the fact that Defendants' confusion as to the tabulated data might have been obviated if they had timely asserted their right to obtain it, Dr. Whitman's report adequately explains his methodology.

         As Dr. Whitman explains it, he first merged the data files supplied by Defendants that include detainees' prescribed dates and fill dates. Whitman Report, at 2-4; see Whitman Dep. at 31, ECF No. 188-3. With regard to the tabulation of data for the eleven non-psychotropic drugs and the six psychotropic drugs, Dr. Whitman used a detainee's first name, last name, and birth date to match the records in each dataset. Whitman Report, at 6. Second, because Defendants' data files contained information from overlapping time periods, he eliminated any redundant data from those periods. Id. at 3-8. Third, Dr. Whitman eliminated data that resulted from data entry errors by using coding mechanisms to ensure that (1) the prescribed and fill dates occurred after the booking date, (2) the fill date occurred before a detainee's discharge date, and (3) the fill date occurred after the prescribed date. Id. at 6-8. Fourth, Dr. Whitman eliminated data regarding prescriptions unrelated to the intake process-such as refills or prescriptions written after CCJ conducted a second health assessment 14 days after intake-by considering only those fill dates that occurred within 14 days or less after a detainees' booking date. Id. Finally, at each step, Dr. Whitman ensured that he accurately matched and omitted data by verifying three test subjects for each drug and each time period. Id. at 7-8. With regard to his methodology of extracting methadone dispensing records from the raw data files, Dr. Whitman matched records by using a detainee's Correctional Institution Management Information System number, which is unique to each inmate and each instance of admission to CCJ. Id. at 8. Dr. Whitman then tabulated the prescribed and fill dates from March 20, 2009, to May 3, 2010. Id. Dr. Whitman's thorough explanation as to how he tabulated the data spans eleven pages of his report, and the Court finds his explanation to be sufficiently clear.

         Defendants also contend that Dr. Whitman has not explained why he selected particular time periods for analyzing the intake data. Defs.' Mot. Bar Whitman, at 3. Not so. For each year between 2006 and 2011, Dr. Whitman analyzed intake data from the same 195-day period from September 17 to March 30. Whitman Report, at 4. For prescription data, he analyzed the 181-day period from October 1 to March 30. Id. at 6. Dr. Whitman explains that his analysis is based on the assumption that any prescription written after a detainee has been housed at CCJ for over fourteen days is unrelated to the intake process at issue in this case. Id. Accordingly, he used coding mechanisms to eliminate any prescription record date that is more than 14 days past the intake date. Id. Dr. Whitman states that this is why the intake data period begins 14 days prior to the prescription record data for each year. Id. The selection of the range of months as a basis for comparison is a factual matter to be determined by a jury. To the extent that Defendants wish to ask Dr. Whitman why he selected the particular range of months from each year, they may do so on cross-examination.

         Furthermore, Dr. Whitman concludes that there has been a statistically significant increase in the rate of dispensing certain prescription medications on the day of admission between the 2006-07 and 2010-11 periods. Defendants argue that statistically significant changes may be observed with trivial outcomes. Criticisms of the testimony's quality, however, speak not to admissibility but to the weight that the testimony should be accorded by the trier of fact. Metavante, 619 F.3d at 762. To this end, Defendants are free to press Dr. Whitman with this line of questioning if and when he testifies.

         2. Reliability of the Underlying Data

         Next, Defendants attack Dr. Whitman's analysis as unreliable, claiming it is based on faulty data. “A district court enjoys broad latitude both in deciding how to determine reliability and in making the ultimate reliability determination.” Bryant v. City of Chi., 200 F.3d 1092, 1098 (7th Cir. 2000). “The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis ...

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