United States District Court, S.D. Indiana, Indianapolis Division
NICHOLAS GLISSON (Estate of) Alma Glisson, Personal Representative of Estate, Plaintiff,
CORRECTIONAL MEDICAL SERVICES, INC., Defendant.
ORDER ON DEFENDANT'S MOTIONS TO EXCLUDE EXPERT
EVANS BARKER, JUDGE
sued Defendant under 42 U.S.C. § 1983 for deliberate
indifference to the serious medical needs of Nicholas
Glisson, who died while in the custody of the Indiana
Department of Corrections (“the DOC”). Alma
Glisson, the personal representative of Mr. Glisson's
estate, brought this lawsuit asserting that the medical care
provided by the DOC's chosen provider, Defendant
Correctional Medical Services, Inc. (“Corizon”),
violated his rights under the Eighth Amendment to the United
States Constitution, made applicable to the states by the
Fourteenth Amendment. This matter is set for trial on January
before the Court are Defendant's Motion to Limit Expert
Diane Sommer [Dkt. 79], Motion to Exclude Expert Stan Smith,
Ph.D. [Dkt. 51], and Supplemental Motion to Exclude Testimony
from Plaintiff's Designated Expert Witness Stan Smith,
Ph.D. [Dkt. 83], all filed pursuant to Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). For the reasons detailed
below, we GRANT IN PART and DENY IN PART
Defendant's motion to limit the testimony of Dr. Sommer
and GRANT Defendant's motions to exclude the
testimony of Dr. Smith.
Diane Sommer, M.D.
Sommer, M.D., is a medical doctor in practice since 1990. She
received her undergraduate degree from Long Island
University, her medical degree from SUNY Health Science
Center, and completed her residency at Eisenhower Army
Medical Center. Dr. Sommer has worked in various medical
settings throughout her career, including as a family
practice doctor and emergency room physician. Since 2003, she
has been employed by the Federal Bureau of Prisons at the
Federal Correctional Institute, Otisville as Clinical
connection with this case, Dr. Sommer reviewed Mr.
Glisson's prison medical records, materials related to
his Wishard Hospital admission, his personal medical records,
and the coroner's report. She reviewed as well the
depositions of Dr. Herminia and Nurse Mary Combs and a
two-page report prepared at the request of the Hendricks
County Coroner by Dr. Stephen Radentz, a forensic
pathologist. Dr. Sommer also reviewed various DOC
policy directives and guidelines. Based on her review of
these materials, Dr. Sommer has concluded that the treatment
Mr. Glisson received while incarcerated fell below the
standard of care in several ways, that his “medical
care reflects a lack of continuity of care and a failure of
communication among providers, ” and that “the
health care [Mr. Glisson] received throughout his brief
incarceration [led] to his early death.” Dkt. 79-1.
Stan Smith, Ph.D.
Smith, Ph.D. is an economist who received his undergraduate
degree from Cornell University and his Master's Degree
and Ph.D. in Economics from the University of Chicago. Dr.
Smith is expected to testify regarding damages associated
with Mr. Glisson's “loss of enjoyment of life,
” also known as “hedonic damages.” Dr.
Smith has reviewed the following materials: the Complaint;
Corizon's answer to the Complaint; Plaintiff's
answers to Defendant's first set of interrogatories; the
declaration of Dr. William D. Fisher, D.O.; the presentence
investigation report; the judgment and sentence; a June 20,
2013 informational interview with Alma Glisson; and
“the case information form.” Dr. Smith opines
that Plaintiff is entitled to recover an amount not to exceed
$3, 371.253.00 as damages for Mr. Glisson's loss of
enjoyment of life or hedonic damages. This number is based
not on any characteristic particular to Mr. Glisson's
life, rather on “the average value of a statistical
life and life expectancy of 79.5 years.” Dkt. 51-1 at
Smith's methodology for quantifying the value of Mr.
Glisson's enjoyment of life is based on economic research
based on a statistical life analysis. Dr. Smith describes
this research as consisting of “many economic studies
on what we, as a contemporary society, actually pay to
preserve the ability to lead a normal life.”
Id. The value of statistical life
(“VSL”) studies on which Dr. Smith relies assign
a value to human life based on data gathered from either: (1)
consumer behavior and purchases of safety devices, like
installing smoke or carbon monoxide detectors as a protective
measure; (2) wage risk premiums to workers (i.e.,
providing extra compensation to workers performing more
dangerous jobs); and/or (3) cost-benefit analyses of
governmental and industrial safety regulations. Id.
reach his estimate of Mr. Glisson's value of life for
purposes of determining hedonic damages, Dr. Smith first
considered selected systemic reviews, or
“meta-analyses, ” of the VSL
research in order to synthesize the data into an
average VSL, which Dr. Smith “estimate[s]” is
$4.5 million in year 2013 dollars. Dkt. 51-1 at 3. Dr. Smith
refers to this number as being the “central
tendency” of the range of the economic studies on the
value of life. Id. It is not clear from his report
the exact calculations he next performed to arrive at the
dollar figure of $3, 371, 253.00 as the value of Mr.
Glisson's enjoyment of life. Although not explained in
his report, we accept Defendant's proffered explanation
that the calculations include dividing $4.5 million by the
residual life expectancy of the “statistically average
person, ” and then applying a 1.25% discount
to determine an average annual value of statistical life in
the amount of $131, 199.00. Dkt. 51-2 at 2-5. That number
($131, 199.00) was then projected out based on Mr.
Glisson's anticipated actual life expectancy (per the
life tables from the National Institute of Health Statistics)
to calculate the figure of $3, 371, 253.00 as the estimate of
the loss of Mr. Glisson's enjoyment of life. Dr. Smith
explains in his report that this number is then subject to
adjustments by the jury if the jurors “find
circumstances that would increase or decrease Mr.
Glisson's enjoyment of life compared to an average
person.” Dkt. 51-1 at 2.
admissibility of expert testimony is governed by the
analytical framework set out in Federal Rule of Evidence 702
and Daubert v. Merrell Dow Pharmaceuticals Inc., 509
U.S. 579 (1993). Lewis v. CITGO Petroleum Corp., 561
F.3d 698, 705 (7th Cir. 2009). To be admissible under Federal
Rule of Evidence 702 and Daubert, an expert's
testimony must be reliable and relevant, and the expert must
be qualified to give it. Fed.R.Civ.P. 702; Gayton v.
McCoy, 593 F.3d 610, 616 (7th Cir. 2010). If the
Daubert threshold is cleared, “the accuracy of
the actual evidence is to be tested before the jury with the
familiar tools of ‘vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof.'” Lapsley v. Xtek,
Inc., 689 F.3d 802, 805 ...