Opinion
Case No. 4:92-CV-110
April 18, 2002
Attorney(s) for Plaintiff(s), Neal Bush, Detroit, MI. Deborah A. LaBelle, Deborah LaBelle Law Offices, Ann Arbor, MI. Elizabeth Alexander, National Prison Project of the ACLUF, Washington, DC. Jeanne E. Mirer, Pitt, Dowty, McGehee Mirer, PC. Royal Oak, MI. Michael Barnhart, Michael J. Barnhart Law Offices, Detroit, MI. Larry Bennett, Cox, Hodgman Giarmarco, PC. Troy, MI. Patricia A. Streeter, Ann Arbor, MI.
Attorney(s) for Defendant(s), A. Peter Govorchin, Richard M.C. Adams, Jann Ryan Baugh, E. Michael Stafford, Leo H. Friedman, Theodore E. Hughes, Susan Przekop-Shaw, Kim G. Harris, Michael A. Nickerson, Jennifer M. Granholm, Attorney General, Donald S. McGehee, Janet A. VanCleve, Susanne Durk McAra, Lansing MI.
ORDER
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Plaintiffs' Motion for Further Order (Dkt. No. 1535) is DENIED.
IT IS FURTHER ORDERED that Defendants' Expedited Motion to Dismiss Exercise of Jurisdiction (Dkt. No. 1540) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Terminate Consent Decree over SMSM Central Complex (Dkt. No. 1539) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs' Motion in Limine relating to presentation of proofs (Dkt. No. 1580) is GRANTED IN PART and DENIED IN PART, and that the parties shall abide by the hearing schedule and post-hearing briefing schedule set forth in the Opinion.
IT IS FURTHER ORDERED that Plaintiffs' Motion in Limine dated February 25, 2002 (Dkt. No. 1581) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiffs' Motion to Strike Testimony of Carson and Sproul (Dkt. No. 1549) and Plaintiffs' Corrected Motion to Strike (Dkt. No. 1554) are DENIED.
IT IS FURTHER ORDERED that Defendants' Motion in Limine relating to Plaintiffs' expert witness (Dkt. No. 1576) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion in Limine as to Plaintiffs' prisoner witnesses (Dkt. No. 1585) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion in Limine as to Plaintiffs' Proposed Exhibits (Dkt. No. 1586) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Strike (Dkt. No. 1534) is DENIED.
OPINION
This matter is before the Court for the purposes of deciding some eleven motions of the parties. The motions include both dispositive motions ( i.e., to terminate jurisdiction over portions of the case) and motions in limine. The motions have been filed recently and are now being resolved in advance of the evidentiary hearing of May 6-8, 2002 in order to facilitate proofs at that hearing.
I. Motion for Further Order Regarding the Health-Related Disabilities Plan
Plaintiffs have moved for injunctive relief as to the Health-Related Disabilities Plan. Plaintiffs' position is that the Revised Health-Related Disabilities Plan is deficient in failing to contain terms relating to: (1) the transfer of a prisoner's medical records with all transferred prisoners; (2) the use of a transfer screening form relating to prisoner medications and medical accommodations; (3) the use of a transfer nurse, within eight hours of transfer, to observe and interview transferred prisoners, to review the transfer screening form, to complete the screening form with the transferred prisoners, to schedule a clinic visit within five days as to all prisoners enrolled in a chronic care clinic, and to schedule all appropriate referrals; and (4) the use of a registered nurse to interview and clear for transfer any prisoner enrolled in a Disability Chronic Care Clinic. Plaintiffs have also noted that they recently learned in discovery that Defendants had made a request to vary their protocols in conducting a large transfer of prisoners from SMJ to JMF such that prisoners in Chronic Care Clinics would not have been seen within five days of their transfer to JMF. Plaintiffs also provide several examples of recently transferred prisoners whose medical care was significantly delayed because of failure to follow the above procedures.
Defendants' Response indicates that they believe such an injunction is unnecessary. According to Defendants, all of the requested changes to the Health-Related Disabilities Plan (except for the clearance procedure for prisoners enrolled in a Disability Chronic Care Clinic) are already part of Department protocols and procedures. As to the clearance procedure for prisoners enrolled in the Disability Chronic Care Clinic, the Defendants also believe that this procedure is unnecessary because there is already a calling procedure for prisoners with moderate and severe disabilities to ensure their transfer to appropriate facilities. Defendants believe that a face-to-face interview of those prisoners would only protract the process without any real benefit. Defendants also indicate that the variance as to the transfers to JMF was a one-time event relating to a large scale transfer and that there are no plans for such variances in the future.
Plaintiffs in Reply indicate that they have been aware that some of the orders requested are already part of Department procedures. Nevertheless, the failures to comply with the procedures (as noted in the specific cases cited by Plaintiffs) illustrate that further injunctive relief is necessary to obtain Department compliance with its own procedures. Plaintiffs also indicate that the current transfer procedures for prisoners enrolled in the Disability Chronic Care Clinic is not working effectively such that Plaintiffs' suggested changes should be ordered.
It is apparent to this Court that the consideration of this subject is precisely one of those matters which the Court determined should be resolved after receipt of evidence at the upcoming evidentiary hearing. The consideration of this subject prior to the hearing and without reflection upon further medical evidence and expert testimony concerning this subject is premature. Therefore, the Court will deny the motion without prejudice pending consideration of these issues at and after the evidentiary hearing.
II. Expedited Motion to Dismiss Jurisdiction
Defendants have moved to dismiss the exercise of any court jurisdiction over Cell Block 1 and 2 (which are now within the Egeler Facility), Cell Blocks 9 and 10 and Unit C (which are now within the Parnall Facility), and the Duane Waters Hospital. The Motion regards the exercise of jurisdiction as unwarranted in that the Consent Decree was limited to its terms and did not include jurisdiction as to those facilities.
Plaintiffs in response note a great variety of previous court orders which have allowed the exercise of jurisdiction as to Cell Blocks 1 and 2, Unit C and the Duane Waters Hospital. The premise for these orders has been that since the Decree allowed jurisdiction as to not only listed facilities, but also as to areas used to deliver support services to listed facilities, these areas are properly included for those purposes. As to Blocks 9 and 10, Plaintiffs indicate that the health care data as to those Blocks should be considered (since it bears on the operation of the health care system overall) regardless of whether those Blocks are actually Hadix facilities. In particular, because Block 8 of Parnall is clearly a Hadix facility and since health care records are kept together for all Blocks of the same institution, there would also be practical problems of locating medical records as to a single block within the facility.
Defendants' Motion is premised on an assumption that this Court is improperly exercising jurisdiction over non- Hadix facilities in violation of 18 U.S.C. § 3626. However, the Motion contains little, if any, description of how either this Court or the Plaintiffs have exercised jurisdiction over non- Hadix facilities. Plaintiffs apparently agree that Blocks 9 and 10 of Parnall are non- Hadix facilities, but that information about health care delivery there is still relevant to the issue of health care delivery as to Hadix facilities and especially as to Block 8 of Parnall. The Court believes that this is a reasonable position and that Plaintiffs should be allowed to present such proofs at hearing, although they should also indicate in their testimony and exhibits which cases studied relate to Blocks of 9 and 10 of Parnall. The Court will only use this information as allowed by law and will not, contrary to the Defendants' suggestion, impose any injunctive relief as to Blocks 9 and 10 of Parnell (absent significant changes in circumstances). As to the other facilities mentioned, those facilities have been long considered by this Court and Judge Feikens as Hadix facilities given the delivery of support services. While, of course, the delivery of support services may change over time, there is no need on the present record to declare those facilities as non- Hadix facilities. As such, this Motion will be denied.
Also relevant to this discussion is the so-called Break-up Plan. Section VII of the Decree provided for a Management Plan that, to a degree, included all of the facilities previously known as the State Prison of Southern Michigan.
III. Motion to Terminate Consent Decree over SPSM-Central Complex
Defendants have also moved to terminate the Consent Decree as to Blocks 11, 12 and Administrative Segregation (referred to as the State Prison of Southern Michigan Central Complex). Prisoners in those areas have been transferred out of those areas (due to state budget shortfalls) and transferred to other prison facilities.
Plaintiffs in their Response argue both a technical point and a practical one. The technical point is that Defendants should not be permitted to file another termination motion before the last aspects of their last filed termination motion is decided. See 18 U.S.C. § 3626(b)(1)(ii). The practical point is that since the Defendants have not announced any permanent plans for this facility, it would be premature to divest the Court of jurisdiction when the facility might be soon reopened.
These kinds of arguments by the parties are a pale substitute for a discussion and resolution of the real problems that have driven this case and which have propelled the constitutional violations previously found. Plaintiffs' technical position that the statute requires the Court to exercise jurisdiction over a "dead controversy" is frankly both intellectually unsatisfying and contrary to Plaintiffs' usual positions in this suit that the Court should exercise jurisdiction with eyes most focused on the constitutional realities and the equities of the case. The technical argument is extremely suspect in that the Constitution, Article III, limits this Court's jurisdiction to actual cases or controversies. See Valley Forge Christian College v. American United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982); Hodges v. Schlinkert Sports Associates, 89 F.3d 310, 312 (6th Cir. 1996). Thus, a threshold question in every federal suit is whether the court has the judicial power to entertain the suit. Warth v. Seldin, 422 U.S. 490, 498 (1975). The "case" and "controversy" requirement encompasses the separate doctrines of standing, justiciability and mootness. National Rifle Ass'n of America v. Magaw, 132 F.3d 272, 279-80 (6th Cir. 1997). Thus, even were Congress to attempt to enlarge the jurisdiction beyond the Constitutional framework by limiting termination of "dead" suits, such attempt would come to naught. See Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 176 (1803); United States v. Morrison, 529 U.S. 598, 607 (2000) (quoting and following Marbury's Constitutional limitations on Congress legislation). Constitutional principles are especially important given the law of this case — which includes rulings by the Sixth Circuit Court of Appeals reading the statute at issue in a manner so as to avoid constitutional pitfalls. See Hadix v. Johnson, 144 F.3d 925, 938 (6th Cir. 1998); see also International Association of Machinists v. Street, 367 U.S. 740, 749 (1961).
Likewise, Defendants' position that the jurisdiction should be terminated before any determination is made as to whether the prisoner movements are permanent and in the middle of a discovery and hearing process is also contrary to the logical and efficient resolution of this case. Certainly, this Court will not make injunctive orders affecting Blocks 11, 12 and Administrative Segregation while those Blocks are empty. With this said, however, there is no compelling reason to now terminate jurisdiction as to those facilities when they may be re-occupied in the not too distant future especially where there is a need to make findings as to those facilities. As such, the Motion will be denied as premature. However, in denying the Motion, the Court further expresses that should this facility remain unoccupied for a prolonged period or should the Department make permanent plans to discontinue the use of those facilities, the Court would then invite a motion to terminate as to those facilities.
To reiterate, while the Court is open to the possibility of terminating jurisdiction in the future should these changes become permanent, it makes little sense in the present context to terminate in the middle of hearings addressing ongoing constitutional violations. If there is proof of constitutional violations during the test period, there will be record to support remedial measures as to these facilities in the future should they again be occupied by prisoners.
IV. Motions in Limine
Both Plaintiffs and Defendants have filed several motions in limine concerning the upcoming evidentiary hearing. The Court exercises discretion over matters involving the admissibility and relevancy of evidence at trials. United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991). The preferred method for doing so is, as in this case, by rulings in advance of hearing so as to save court resources, permit an efficient and orderly presentation of proofs, and avoid references to irrelevant or prejudicial matters. See Fed.R.Evid. 103.
A. Plaintiffs' Motion in Limine Relating to Presentation of Proofs
Plaintiffs have filed a Motion in Limine which requests the following relief: (1) that the Court determine and order that Defendants have the burden of proof and should present testimony first at the upcoming hearing; (2) that the Court accord little weight to the testimony of compliance occurring after November 1, 2001; (3) that the Court announce decisions on motions in limine prior to hearing; and (4) that the Court not allow objections to disrupt the hearing and take away time from the presentation of proofs.
As to the first issue, Defendants disagree because they would prefer to follow the suggested procedure of Dr. Benton, the Special Monitor, in his Memorandum of February 20, 2002 — which suggested that Defendants present proofs first on the issue of health care compliance and that Plaintiffs present proofs first on the issues of ventilation, temperature and fire safety. As to the second issue, Defendants assert that this issue has already been resolved against Plaintiffs at previous hearings and that current operations are critical to findings of "ongoing" constitutional violations under 18 U.S.C. § 3626(b)(3). As to the third issue, Defendants agree that pre-hearing motions should be decided in advance of the hearing. As to the fourth issue, the Defendants disagree that relevancy, prejudice and other objections can be delayed until after the hearing in light of the requirements of the Rules of Evidence.
On the third issue, the Court, of course, agrees with the parties and for this reason is announcing its decisions on pre-hearing motions in advance of hearing.
On the first issue, this matter is complicated by the fact that as to certain issues (the recently transferred facilities issues) the Plaintiffs clearly have the burden of proof, whereas as to the remainder and bulk of the issues (the questions of whether health care constitutional violations have been remedied by Defendants) Defendants bear the burden of proof. While it is true that the Court could, as the monitor suggested, make the hearing into a four-part hearing, this procedure seems unnecessarily cumbersome. The Court will require Defendants to present first and the Plaintiffs to present second. The parties each are allotted six hours of direct testimony and three hours of cross-examination. The time expended in raising objections by a party shall count against their time for cross-examination. As stated before, the Court's trial days will commence at 9:00 a.m. each day, with a one hour break for lunch (usually at 1:00 p.m.), and will conclude at approximately 4:30 p.m. each day. The Court expects that the parties will have their witnesses available and ready for proofs. The Court will not hear argument, but will receive closing argument in the form of written argument and proposed findings of fact and conclusions of law after the proofs. Defendants' written argument and proposed findings shall be due within 30 days of the hearing; Plaintiffs' written argument and proposed findings shall be due within 50 days of the hearing; and Defendants' reply shall be due within 70 days of the hearing. Each of these written briefs may exceed the usual page limits for written briefing. Following the evidentiary hearing, the Special Monitor will also meet with the parties to recommend a format for the submission of the proposed findings.
On the second issue, the parties are both essentially right on this issue, although they both ignore certain conclusions of the District Court as to hearing of evidence. First of all, it is true that the evidence of compliance after the "test period" ( i.e., after November 2001) will be given little weight in assessing whether constitutional violations have been cured. This is because the evidence as to the test period has been systematically gathered, systematically evaluated and systematically tested by Defendants through their quality assurance processes and by Plaintiffs through discovery and expert analysis. The later evidence has not been so analyzed and its import and significance is much less. With this said, however, the Court is, nevertheless, required by the statute and by commonsense to take into account changes in practices, procedures and results which may occurred after the discovery period. The Court will consider this latter evidence, discounting its weight based on the degree of systematic analysis by Defendants and the degree of opportunity for Plaintiffs to conduct discovery and develop their own analysis of the evidence. Thus, this aspect of Plaintiffs' motion is granted in part and denied in part.
On the fourth issue, the Court will deny Plaintiffs' motion in that, as stated in Defendants' response, the Rules of Evidence require that the Court hear and resolve objections at hearing. Nevertheless, the Court has already limited the time for such objections, as mentioned above, and will insist on the parties adhering to the time limitations. The Court also cautions the parties to avoid "speaking objections" and to state both objections and answers to objections concisely.
B. Plaintiffs' Motion in Limine dated February 25, 2002
Plaintiffs' Motion in Limine dated February 25, 2002 requests "that the Court determine that the defendants are precluded from objection to opinions of plaintiffs' experts based on discovery supplied to plaintiffs after December 10, 2001." (Motion in Limine, at 1.) Plaintiffs anticipate that Defendants will object to these new opinions based on Defendants' failure to take the deposition of Dr. Walden as to his new opinions. Plaintiffs regard the lack of deposition as caused by Defendants' own recalcitrance in failing to reschedule a Walden deposition. Defendants regard Plaintiffs' statements as mis-characterizations and regard these failures in discovery as caused by Plaintiffs' delinquence.
Obviously, this Court will not preclude Defendants from raising an objection, since either party has a right to object to testimony. The Court will, however, indicate to Defendants that it presently intends to deny any such objections. The Court understands that the discovery period in this case was fraught with difficulties — particularly as to expert witnesses, who have limited time to schedule depositions. The Court does not believe that any failures to conduct discovery were caused by wilfulness on the part of Plaintiffs counsel. Also, the Court urges the parties to take steps to remedy this lack of discovery prior to hearing — i.e., for the Plaintiffs to make available to Defendants a detailed statement (signed by Dr. Walden under oath), which summarizes his new opinion testimony in advance of hearing. As such, Plaintiffs' Motion is granted in part and denied in part consistent with this ruling.
C. Plaintiffs' Motions to Strike Reports of Wayne Carson and David Sproul
Plaintiffs' Motion to Strike (and its Corrected Motion to Strike) ask to strike those portions of the expert reports of Wayne Carson and David Sproul expressing opinions that certain fire safety conditions at JMF and Egeler do not create constitutional violations. The Motions also seek to limit testimony as to those portions of the reports. Plaintiffs assert that these portions of the reports ignore the facts that the Court has already found current and ongoing constitutional violations as to those conditions and that the issue for hearing is only one of remediation.
Defendants' Response asserts that the purpose of the testimony is to correctly identify the fire safety constitutional issues, to show that there are no ongoing constitutional violations as to fire safety, and to contradict Plaintiffs' expert testimony as to ongoing constitutional violations. Regardless of whether constitutional violations were previously determined, the Court believes that expert testimony as to whether there are continuing and ongoing constitutional violations as to fire safety at Hadix facilities is relevant and admissible. Therefore, Plaintiffs' Motions will be denied.
D. Defendants' Motion in Limine as to Plaintiffs' experts
Defendants' Motion in Limine asks the Court, under its gate-keeping responsibilities under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to exclude the testimony of Plaintiffs' expert witnesses on quality assurance, medical issues and fire safety — Mark Creekmore, Elizabeth Ferguson, Jerry Walden and Curtiss Pulitzer. Defendants regard this testimony as not meeting the standards for admissibility under Rule 702, as being irrelevant under Rule 401, and as being inadmissible under Rule 403 because of prejudice and waste of time. Plaintiffs have answered each of Defendants' arguments in detail in their Response.
This Court has previously rejected similar arguments at evidentiary hearings as to the expertise of Plaintiffs' experts and can find no reason now to reach different opinions. Elizabeth Ferguson, Jerry Walden and Curtiss Pulitzer, consistent with the Court's past rulings, are well qualified to render expert opinions and the Court finds that the testimony that they intend to offer would be helpful, reliable and admissible under Rule 702, relevant under Rule 401 and not prejudicial under Rule 403. See also Gross v. Commissioner of Internal Revenue Service, 272 F.2d 333, 339-40 (6th Cir. 2001) (explaining Daubert standards). The Court also rejects Defendants' various arguments as to specific aspects of their testimony for the reasons given in Plaintiffs' Response. As to Mark Creekmore, who is a new expert, the Court finds that his testimony is particularly reliable and helpful in addressing matters under consideration. As is abundantly clear from the record in this case, the Court's special monitor and this Court have in the past preferred scientific methods which evaluate medical treatment data based on quality assurance protocols and methods. These scientific methods are much preferred to random or anecdotal assessment of data because they provide scientific and statistical criteria for evaluating system performance. Dr. Mark Creekmore, is a college professor (Ph.D. in Sociology) with academic training and teaching experience in this field, including experience in evaluating treatment programs using quality assurance methods. Thus, he is well qualified to give reliable and helpful opinions on this subject. The Court regards this testimony as not only admissible under Rule 702, but also potentially very important to resolving the factual disagreements in this case about the workings of the health care system for the affected prisoners. For these and other reasons stated in Plaintiffs' Response, Defendants' Motion is denied.
E. Defendants' Motion in Limine as to prisoner witnesses
Defendants have filed a Motion in Limine seeking to exclude the testimony of prisoner witnesses — Rick Wheeldon, C. Pepper Moore and Ronald Kovaleski. Defendants assert that the testimony of Rick Wheeldon (which relates to fire safety at Egeler and Building C and a health issue) is inadmissible because: (1) the facilities are not Hadix facilities; (2) there is no supporting expert testimony on fire safety relating to Building C; and (3) Defendant is not qualified to testify about either fire safety or health issues (aside from his personal history of health care treatment).
Plaintiffs respond by arguing: (1) the facilities are Hadix facilities; (2) the witness is qualified as a fact witness to give testimony about the failure of fire safety equipment to work properly during a fire; and (3) the witness can properly testify as to an admission by a Health Unit Manager about a plan to move disabled prisoners to Egeler and his observations that Egeler was being prepared to accommodate disabled prisoners. The Court concurs with the Plaintiffs' assessment of this testimony and will not limit the testimony of Rick Wheeldon.
As to prisoner C. Pepper Moore, Defendants argue that Moore is not qualified to give expert opinions concerning health problems concerning double bunking prisoners or about fire safety issues in the 8 Block of Parnell. Defendants make the same argument as to prisoner Ronald Kovaleski.
In their Response, Plaintiffs argue that they intend to offer factual, not expert, testimony by Moore and Kovaleski. As to Kovaleski, they intend to offer his testimony as to what procedures are used for fire drills as to Block 8 and that he has observed actual conditions during a fire as to Block 8. As to Moore, they intend to offer his testimony as his observation about how prisoners recently transferred as part of the double bunking of JMF were treated as to their health care needs and disability accommodation needs. The Court sees no reasons to prevent such relevant factual testimony. Therefore, this Motion will be denied.
F. Defendants' Motion in Limine Regarding Plaintiffs' Proposed Exhibits
Defendants have filed general objections to 39 exhibits listed by Plaintiffs. Defendants general objections are on the grounds of hearsay, that some of the documents are "draft" and partial documents, that some of the documents include "discovery" depositions, and that some of the documents are incomplete.
In their Response, Plaintiffs note the following: There is no rule of evidence prohibiting "draft" documents. The rule of evidence as to "partial" documents, Rule 106, does not preclude the use of partial documents, but only allows an adversary to introduce the remainder of the document, if necessary to fairness. The claim of "hearsay" is not particularized as to any document and the documents to be offered do not run afoul of the hearsay rules because they contain non-hearsay admissions under Rule 801(2). As to the "deposition" argument, Plaintiffs indicate that they only intend to offer portions of the deposition of George Pramstaller, the Chief Medical Officer of the Department of Corrections. Plaintiffs assert that this use of the deposition is proper to prove admissions of an opponent under Rule 801(2)(D). Plaintiffs also generally characterize these documents as relevant to issues to be determined.
Plaintiffs' positions are well-taken. In particular, the position as to use of deposition admissions is supported by federal case law. See, e.g., Ryan-Walsh, Inc. v. United States, 39 Fed. Cl, 305, 306 (Fed.Cl. 1997); Dean v. Watson, 1996 W.L. 88861, at 3 (N.D. Ill. 1996); see also Daniel Coquillette, 7 Moore's Federal Practice, § 32.02[3]. Accordingly, Defendants' Motion will be denied.
G. Defendants' Motion to Strike
Defendants have also moved to strike, limit or clarify the expert reports of Plaintiffs' expert witnesses. The Motion argues that the reports of testimony of Plaintiffs' experts Jerry Walden, M.D., and Elizabeth Ferguson fail to adhere to the Quality Assurance methodologies which have been approved by this Court as a useful tool in determining whether the health care delivery system meets constitutional requirements.
Plaintiffs, in Response, disagree that the reports do not address the quality assurance processes. Plaintiffs also assert that, regardless of whether the reports concern the quality assurance processes, the reports are relevant as relating to determining the central issues at the upcoming hearing, including the effectiveness of the delivery of health care services to Hadix prisoners. The Court determines that Defendants' Motion, at best, goes to the weight and not the admissibility of the testimony. Accordingly, Defendants' Motion to Strike will be denied.
CONCLUSION
An Order shall issue resolving the parties' various motions as stated above.