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Glisson v. Correctional Medical Services, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

December 27, 2018

NICHOLAS GLISSON (Estate of) Alma Glisson, Personal Representative of Estate, Plaintiff,



         Plaintiff 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 28, 2019.

         Now 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.

         Factual Background

         I. Diane Sommer, M.D.

         Diane 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 Director.

         In 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.[1] 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.

         II. Stan Smith, Ph.D.

         Stan 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 2.

         Dr. 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. at 3.

         To 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[2] 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 rate[3] 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.

         Legal Analysis

         I. Applicable Standard

          The 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 ...

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