Foell v. Cnty. of Lincoln

FRANK G. FOELL, Plaintiff, v. COUNTY OF LINCOLN, a Nebraska Political Subdivision; PAMELA HICKS, in her individual and official capacities;JEROME KRAMER, in his individual and official capacities;and JOHN DOES 1-10, Defendants.

4:17CV3044

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

July 9, 2019

MEMORANDUM AND ORDER

Plaintiff Frank Foell has filed a civil rights action under 42 U.S.C. § 1983 against the County of Lincoln, Nebraska ("Lincoln County") and against Lincoln County Detention Center ("LCDC") nurse, Pamela Hicks; Lincoln County Sheriff, Jerome Kramer; and John Does 1-10, each in their individual and official capacities. Foell alleges Defendants were deliberately indifferent to his serious medical needs while he was incarcerated at LCDC. He also alleges pendant state law claims for negligence under the Political Subdivision Tort Claims Act. Neb. Rev. Stat. § § 13-901 et seq.

Defendants now move for summary judgment as to all claims and Defendants based upon qualified immunity, the discretionary function exemption of the Political Subdivision Tort Claims Act, lack of proximate causation, and lack of any genuine issue as to any material fact. For the reasons stated below, Defendants' motion will be granted in full as to John Does 1-10, granted in part and denied in part as to Defendants Kramer and the County of Lincoln, and denied in full as to Defendant Hicks.

MOTIONS TO STRIKE

A. Standard of Review

Before the court evaluates the facts and legal issues raised on Defendants' motion for summary judgment, it must address the parties' respective objections to the proffered evidence. On summary judgment, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). "The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated." Advisory Committee Notes to 2010 Amendment, Subdivision(c)(2). "[T]he standard is not whether the evidence at the summary judgment stage would be admissible at trial—it is whether it could be presented at trial in an admissible form." Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012).

B. Plaintiff's Motion to Strike Defendants' Expert Affidavits

Plaintiff claims Defendants failed to disclose their expert reports in accordance with the court-ordered case progression schedule. He therefore moves this court to strike exhibits 4, 11, and 12 from Defendants' Index of Evidence, and he moves that these exhibits not be considered on Summary Judgment. (Filing No. 71). Specifically, Plaintiff argues that Defendants: (1) did not timely identify Barbara Eshleman, R.N. ("Eshleman") as an expert; and (2) failed to timely provide expert witness reports from all three experts—Eduardo Freitas, M.D. ("Freitas"), Daniel Evans ("Evans"), and Eshleman—as required by Fed. R. Civ. P. 26(a)(2)(B). Plaintiff asserts that to now permit Defendants to rely uponthese previously undisclosed expert opinions will unduly prejudice the plaintiff. (Filing No. 71, at CM/ECF pp. 3-4).

Defendants dispute Plaintiff's interpretation of the expert progression deadline, arguing that both their identification of experts and their disclosure of the three reports were timely. (Filing No. 82, at CM/ECF p. 2). Defendants argue that the court did not set new expert deadlines after the stay imposed for the settlement conference was lifted. (Id.) Therefore, Defendants argue that in the absence of a stipulation by the parties or a court order, expert disclosures must be made "at least 90 days before the date set for trial or for the case to be ready for trial." Fed.R.Civ.P 26(a)(2)(D)(i)).

Trial in this case is currently scheduled for August 26, 2019. Under Fed. R. Civ. P. 26(a)(2)(D), expert reports were therefore due by May 28, 2019. Defendants state that they did not have expert reports from Freitas, Eshleman, or Evans until March 28, 2019, and that these reports were provided to Plaintiff via email the next day, on March 29, 2019. (Filing No. 82, at CM/ECF p. 2). Therefore, Defendants argue that the identification of experts and disclosure of reports were done in a timely manner, two months ahead of the deadline. (Filing No. 82, at CM/ECF p. 2). Defendants further attest that Plaintiff was provided signed affidavits from each of the three experts two business days after Defendants received them. (Id.)

Plaintiff counters that the law still militates against a finding for Defendants, explaining:

[T]here is a reasoned order in how a case progresses from the pleading to trial stage. Both parties are to be provided with the necessary discovery about the evidence and witnesses the other side is going to rely on for trial well in advance so the parties can do theirdue diligence in a timely fashion to determine if there is a need for rebuttal witnesses, lay or expert.

. . .

The reason that the summary judgment and Daubert motion in limine deadlines come after the end of the discovery deadline is to allow both parties to do the necessary discovery so there are no unfair surprises when a summary judgment is filed or a Daubert challenge to an expert witness is made.

(Filing No. 86, at CM/ECF p. 2). In sum, Plaintiff argues that permitting Defendants to evade the progression schedule's mandate would undermine the operational objective of the rules themselves.

Plaintiff raises a valid point. Nevertheless, under the instant facts, Defendants' expert reports must be deemed timely under the plain language of Fed.R.Civ.P 26(a)(2)(D). Accordingly, because expert report deadlines were not included in the case progression order entered after the stay of progression, the 90-day rule applied. Plaintiff's motion to strike exhibits 4, 11, and 12 will be denied.

That said, it appears the parties' expert deadline dispute arose because of the court's mistake. Specifically, I overlooked setting new expert deadlines when I entered a post-stay progression order, and the defendants took advantage of that oversight. As such, and in the interest of justice, the court will grant Plaintiff additional time to depose Defendants' experts in preparation for trial, and to disclose experts if he chooses to do so.

C. Plaintiff's Motion to Strike letter from Laura Kubitz

Plaintiff moves this court to Strike Exhibit 3 from Defendants' Index of Evidence in Support of Defendants' Reply Brief for Summary Judgment. (Filing No.84). Exhibit 3 is a letter from Laura Kubitz, Administrative Assistant for the Nebraska Department of Health and Human Services, addressed to Defendant, Pamela Hicks (hereafter "Kubitz letter"). (Filing No. 81, at CM/ECF p. 8). The Kubitz letter informs Defendant Hicks that the Professional Board and the Attorney General have decided not to pursue an investigation into a complaint filed against Hicks. (Id.)

Plaintiff argues the letter is inadmissible hearsay without foundation, lacks relevance, and it should be stricken from evidence accordingly. (Filing No. 85, at CM/ECF p. 2). Defendant counters that the letter falls under the Public Records exception to hearsay and is relevant, arguing:

The letter serves the purpose of demonstrating the lack of any evidence the Plaintiff has to support his claim that Nurse Hicks' actions fell below the standard of care under the Nebraska Standards. It also serves as a rebuttal for Nebraska Nursing Standards that the Plaintiff brought before this Court in the Plaintiff's Brief in Opposition to the Motion for Summary Judgment.

(Filing No. 89, at CM/ECF pp. 2-3).

Defendants have not shown the letter is admissible, or that it could be admissible at trial. The allegations of the complaint against Nurse Hicks are unknown. (See Filing No. 81, at CM/ECF p. 8). The same is true of the investigation details and the rationale underlying the decision not to pursue prosecution. (Id.). The information and criteria considered by the Professional Board and the Attorney General is statutorily confidential under Nebraska law and therefore shielded from subpoena or discovery. Neb. Rev. Stat. § 38-1, 106. Further, Defendants' purported purpose of using the letter "as a rebuttal for Nebraska nursing standards" serves as an improper, undisclosed expert opinion without reference to a scintilla of supporting foundation. (See, Filing No. 89, at CM/ECF pp. 2-3). Therefore, theKubitz letter is not probative of any issue and cannot be used at trial. Moreover, to the extent Plaintiff's claims are based on Hicks' alleged violations of state nursing regulations, a letter purporting to conclude that an investigation of such claims is unnecessary addresses the ultimate issue to be decided, invades the province of a jury, and is more prejudicial than probative.

Plaintiff's motion to strike exhibit 3 will be granted.

MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Under Fed. R. Civ. P. 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary judgment bears the initial burden of articulating the basis for its motion and directing the court's attention to those portions of the record which prove the absence of a genuine issue of material fact. Id. at 323. Where Plaintiff bears the ultimate burden of proof on a dispositive issue at trial, this can be met by Defendants "pointing out to the district court—that there is an absence of evidence to support the non-moving party's case." Id. at 325. After Defendant has met this burden, it is up to Plaintiff to set forth specific facts, beyond the pleadings, showing that there is a genuine issue for trial. Fed. R....