United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey Chief United States District Judge
the Court is an Expedited Motion to Exclude Expert filed by
Separate Defendants Dr. Mimo Lemdja; Lenora Turner; Kindall
Smith; and Correct Care Solutions, LLC (the “Medical
Defendants”). (ECF No. 89). Separate Defendant Steven
Arnold has filed a response in support of the motion. (ECF
No. 90). Plaintiff Craig Shipp has filed a response in
opposition to the motion. (ECF No. 91). The Medical
Defendants have filed a reply. (ECF No. 93). The Court finds
the matter ripe for consideration.
March 26, 2018, Plaintiff, filed an amended complaint in this
action pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his constitutional rights when he was
incarcerated in the Southwest Arkansas Community Correction
Center in Texarkana, Arkansas. Plaintiff, a diabetic, alleges
that Defendants deprived him of his orthotic shoes and
inserts for several weeks, which caused injury that
ultimately required the amputation of his foot. Plaintiff
asserts a federal claim of Eighth Amendment deliberate
indifference and a state-law claim of negligence.
initially retained Dr. Joseph William Wright as his
“jail and medical” expert. (ECF No. 80). Dr.
Wright was a licensed physician, board certified in
otolaryngology,  who spent eleven years practicing in the
field of correctional medicine, serving as the medical
director of the El Paso County Criminal Justice Center in
Colorado Springs, Colorado. (ECF No. 89-1, p. 2). On June 7,
2019, the parties deposed Dr. Wright. On July 25, 2019,
Plaintiff learned that Dr. Wright passed away.
August 1, 2019, Plaintiff filed a motion seeking leave to
designate and substitute one or more expert witnesses to
replace Dr. Wright. The Court granted that motion with the
caveat that any new expert must hold substantively similar
opinions that are not contrary to or inconsistent with Dr.
Wright's opinions. (ECF No. 86, p. 5). The Court stated
that Defendants could file a motion to exclude any portion of
the replacement expert's testimony that concerned new
opinions, theories, or subject matter.
October 3, 2019, the Medical Defendants filed the instant
motion, indicating that Plaintiff retained a nursing expert,
Lori Roscoe. Roscoe's expert report reveals that she is
an Advanced Practice Registered Nurse and is a Certified
Healthcare Professional-Registered Nurse. She has worked in
various roles in correctional healthcare since 1995 and is
currently the principal of Correctional HealthCare
Medical Defendants state that a review of Roscoe's expert
report reveals multiple opinions that are either inconsistent
with those of Dr. Wright's or concern subject matters
that she is not qualified to opine on. Accordingly, they ask
the Court to prohibit Roscoe from offering these opinions,
effectively excluding her entirely as an expert. Separate
Defendant Arnold joins in the motion, arguing for the same
relief. Plaintiff opposes the motion.
Medical Defendants state that Dr. Wright's expert report
offered standard-of-care opinions only as to Separate
Defendants Dr. Lemdja and Arnold. The Medical Defendants also
state that at Dr. Wright's deposition, he offered a
breach-of-standard-of-care opinion only as to Defendant Dr.
Lemdja; that he specifically testified that Defendant Smith
acted properly on February 5, 2016; that he testified that
Defendant Turner was not at fault; and that he declined to
opine as to the conduct of Correct Care Solutions, LLC
because he had not been asked to evaluate that.
Medical Defendants ask the Court to exclude Roscoe's
opinions, for various reasons. First, they state that Roscoe
is a nurse, not a doctor, and accordingly, she cannot opine
on the standard of care for physicians. Thus, they ask
that the Court bar Roscoe from offering opinions related to
Defendant Dr. Lemdja's medical judgment and treatment.
Second, the Medical Defendants ask that the Court prevent
Roscoe from offering nursing opinions as to any Defendant
because those opinions either were not previously offered by
Dr. Wright or otherwise conflict with Dr. Wright's
opinions. Third, they ask the Court to prohibit Roscoe from
offering “administrative” opinions as to
Defendant Turner because those opinions either were not
offered by Dr. Wright or otherwise conflict with his
opinions. Fourth, they ask that the Court keep Roscoe from
offering opinions as to Defendant Correct Care Solutions, LLC
(“CCS”) because Dr. Wright offered no opinion as
to CCS and because Roscoe's opinion is that CCS failed to
properly train its employees, which is not a claim in this
case. Finally, the Medical Defendants ask the Court to
exclude Roscoe as an expert witness entirely because
exclusion of all the above-listed opinions would effectively
bar her from offering any of the opinions in her expert
Defendant Arnold has joined in the Medical Defendants'
motion. He states that Roscoe's opinions as to him are
inconsistent with those expressed by Dr. Wright and, thus,
she should not be allowed to offer those opinions.
Accordingly, Separate Defendant Arnold likewise asks that the
Court exclude Roscoe as an expert witness.
argues in response that Roscoe's opinions are
substantially similar to those of Dr. Wright's.
Specifically, Plaintiff argues that Dr. Wright specifically
testified that his medical opinions were not limited to
Defendant Dr. Lemdja. Plaintiff argues that Defendants'
motion should be denied because they have time to
cross-examine Roscoe on her opinions and obtain a rebuttal
Court explained in its August 27, 2019, order, the purpose of
allowing substitution of another expert was to put Plaintiff
in the same position he would have been in but for Dr.
Wright's death. It was not an opportunity to designate a
“better” expert who holds differing or more
advantageous opinions than Dr. Wright. To that end, the Court
held that any new expert must hold substantially the same