United States District Court, N.D. Illinois, Eastern Division
MICHAEL PARISH, CURTIS L. OATS, LEILA KHOURY, SEAN DRISCOLL, CARLA LOFTON, ROY CLEAVES, LISA BROWN, DAN TAYLOR, DEAN MILLER, KEVIN SANDERS, STACEY CLARK, and CARLOTTE WILSON, on behalf of themselves and all others similarly situated, Plaintiffs,
SHERIFF OF COOK COUNTY and COOK COUNTY, Defendants.
MEMORANDUM OPINION AND ORDER
Z. Lee Judge
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
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2005) (“At this point, Rule 702 has superseded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.
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).
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).
Dr. Steven Whitman
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.
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.
Reliability of the Methodology
also attack Dr. Whitman's methodology. Dr. Whitman
provides data analysis of CCJ's intake and prescription
records with regard to certain non-psychotropic and
psychotropic 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
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. 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.
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
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.
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
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.
Reliability of the Underlying Data
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