ROYCE C. LAMBERTH, Chief Judge.
This case concerns the District of Columbia Department of Corrections' ("DOC") practice of overdetaining and strip searching its inmates. The plaintiffs, former inmates subject to overdetentions and strip searches, filed a class action against the District of Columbia ("District") over six years ago. Compl., Feb. 23, 2006, ECF No. 1. This long-running case is virtually identical to a prior case before this Court, Bynum v. District of Columbia, Civil Action No. 02-956(RCL) (filed in 2002). Given this extensive history, the Court assumes familiarity with its prior opinions, which set forth the background of this class-action litigation in greater detail. See, e.g., Barnes v. District of Columbia, 793 F.Supp.2d 260, 265 (D.D.C.2011) (discussing background of case up to summary judgment stage).
In June 2011, the Court granted plaintiffs' Motion for Summary Judgment as to the District of Columbia's liability for any overdetentions at its jails, throughout the class period, caused by the DOC's application of the so-called "10 p.m. cut-off" rule, and all overdetentions occurring from September 1, 2005 to December 31, 2006. Id. at 286. The Court granted the District's Motion for Summary Judgment as to overdetentions occurring from February 26, 2008 forward that were not caused by the DOC's enforcement of the 10 p.m. cut-off rule. Id. The Court denied both parties' motions as to the District's liability for overdetentions that occurred from January 1, 2007 to February 25, 2008 (the "Trial Period") that were not caused by the DOC's enforcement of the 10 p.m. cut-off rule. Id. at 286 & n. 18. The District's
On March 1, 2013, a jury trial regarding the District's liability for overdetentions during the "Trial Period" will commence. Before the Court are the parties' pretrial motions in limine to exclude or limit certain evidence from being introduced at the upcoming liability trial. The plaintiffs filed a motion styled as Plaintiffs' Motion in Limine No. 1 to Exclude Introduction of Evidence of the District of Columbia's Overdetention Numbers for the Trial Period, Jan. 11, 2013, ECF No. 410. The District has filed an "Omnibus Motion in Limine," encompassing five separate motions in limine. Def.'s Mot. in Limine, Jan. 11, 2013, ECF No. 409. Upon consideration of these motions, the oppositions and replies thereto, and the record herein, the Court will deny plaintiffs' motion and grant in part and deny in part the District's motion.
While neither the Federal Rules of Civil Procedure nor the Federal Rules of evidence expressly provide for motions in limine, the Court may allow such motions "pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Motions in limine are "`designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.'" Graves v. District of Columbia, 850 F.Supp.2d 6, 10 (D.D.C.2011) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir.1990)). As Judge Kollar-Kotelly thoroughly explained in Graves:
Id. at 10-11. While the Court has broad discretion to make judgments about whether proffered evidence is sufficiently relative or overly prejudicial, see United States v. Project on Gov't Oversight, 526 F.Supp.2d 62, 66 (D.D.C.2007), the Court should remember that making counsel object to inadmissible evidence at trial may "emphasize[] the evidence before the jury." Banks v. District of Columbia, 551 A.2d 1304, 1310 (D.C.1988); see also 75 AM.JUR.2D. TRIAL § 94 at 306-307 (1991) ("the mere asking of an improper question in the hearing of the jury may prove so prejudicial that, notwithstanding an instruction by the court to disregard the offensive matter, the moving party will be denied his right to a fair trial").
The plaintiffs ask this Court to "exclude any testimony, introduction of, or reference to, evidence of the District of Columbia's discrepancy reports (regardless of file type or format), graphs summarizing said reports, as well as any testimony, introduction of, or reference to, the District's overdetention numbers from January 1, 2007-February 25, 2008 (the "Trial Period"), which are based on the District's discrepancy reports." Pls.' Mot. in Limine 1.
The plaintiffs claim that (1) "the District's overdetention numbers and discrepancy reports are not supported by reliable methodology and are misleading"; (2) "[t]he District needs expert testimony to establish that the methodology supporting its overdetention numbers and discrepancy reports is reliable" and the District has failed to designate an expert; and (3) witnesses "who testify about the District's total overdetention numbers and discrepancy reports are offering lay opinion testimony or expert opinion testimony ... based on unreliable methodology" that could mislead or confuse the trier of fact. Id. 2.
Beginning in January 2007, the District's Department of Corrections began systematically tracking overdetentions through "discrepancy reports" — documents which list individual overdetentions and the purported reasons for those overdetentions. Barnes, 793 F.Supp.2d at 270. A declaration filed by Kathy Souverain, the Records Administrator at the DOC since March 2007, describes the process of
Souverain Decl. ¶ 2-3. The DOC creates the discrepancy reports by running a Lotus Notes query in the institutional file system, JACCS, to identify potential overdetentions, and this preliminary data is individually reviewed by individual DOC employees who enter a notation into Lotus Notes. The discrepancy reports represent the net product of this process, and have been created contemporaneously on a monthly basis from January 2007 to May 2011. See, e.g., Souverain Decl.; ECF No. 302 (copies of all discrepancy reports).
The Court is on well tread ground here. The plaintiffs have repeatedly asked the Court to exclude the District's discrepancy reports, and the Court has refused to do so each time. The plaintiffs first challenged the admissibility of the discrepancy reports on June 21, 2011, ECF No. 301; the Court rejected plaintiffs' arguments when resolving summary judgment, and determined "that the discrepancy reports are admissible hearsay pursuant to Federal Rule of Evidence 803(6), which creates an exception to the hearsay rule for business records" and held that the discrepancy reports "are admissible for all purposes[.]" Barnes, 793 F.Supp.2d at 293. At that time, the plaintiffs objected to the reports because "by themselves [they] do not establish that these were the only over detentions [sic] during the period," ECF No. 306. The plaintiffs make a similar argument in their Motion in Limine, repeating it at the most recent pretrial hearing. When the Court first considered this argument, it decided that "[t]o the extent that the plaintiffs' and the District's overdetention numbers come into conflict, the jury can sort out whose numbers are credible." Barnes, 793 F.Supp.2d at 293. The fact that the District's discrepancy reports do not include all the overdetentions the plaintiffs think the reports should goes to the weight of the evidence, not necessarily its admissibility. Cf. Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C. 2011) (motions in limine should not be used to resolve factual disputes or ask the court to weigh the sufficiency of evidence).
Thereafter, the plaintiffs asked the Court (for the first time) to reconsider its summary judgment opinion, in part based on their argument that the discrepancy reports are inadmissible. Pls.' First Mot. Reconsideration 8-11, Nov. 1, 2011, ECF No. 320. The Court denied reconsideration, again rejecting plaintiffs' position on the admissibility of the discrepancy reports. Order Denying Mot. Reconsideration 3, Dec. 7, 2011, ECF No. 327.
After discovery, the plaintiffs again attacked the credibility and reliability of the discrepancy reports through a motion to compel, claiming that the District has not provided the entire release discrepancy database
On September 7, 2012, the plaintiffs again asked the Court to reconsider its decision to admit the discrepancy reports; they further requested that the Court, upon throwing out the discrepancy reports, enter summary judgment for the plaintiffs. ECF No. 387. The Court again rejected this request, finding that the plaintiffs' arguments did not present any new issues, and the plaintiffs were really asking the Court to weigh evidence and resolve factual issues. See Mem. Op. & Order Denying Reconsideration 3-6, Oct. 31, 2012, ECF No. 399.
There are many problems with the plaintiffs' so-called motion in limine. First, virtually all of the plaintiffs' arguments against the discrepancy reports go to the weight of the evidence, not its admissibility. Cf. D.L. v. District of Columbia, 820 F.Supp.2d 27, 30 (D.D.C.2011). As contemporaneous business records, representing the DOC's attempt to systematically track overdetentions, the discrepancy reports do not have to meet the same standards for "accepted methodology" that apply to expert reports. Essentially, the plaintiffs ask the Court, yet again, to decide that their expert reports represent the correct total number of overdetentions, and that the District's numbers are inaccurate. The plaintiffs have "cloaked a motion for summary judgment in the form of a motion in limine, but the deadline to file dispositive motions has long since passed." Williams, 747 F.Supp.2d at 20; see also Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D.Mich.2009) ("[M]otions in limine are meant to deal with discrete evidentiary issues related to trial, and are not another excuse to file dispositive motions disguised as motions in limine.") (internal quotation marks and citation omitted). The last time the plaintiffs asked the Court to exclude the District's discrepancy reports, they said that excluding such evidence would require the Court to enter summary judgment for the plaintiffs. Pls.' Second Mot. Reconsideration, Sept. 7, 2012, ECF No. 387. This indicates that this "new" motion to exclude the discrepancy reports is really a dispositive motion in disguise. The plaintiffs "misconstrue[] the purpose of a motion in limine, which should not be used to resolve factual disputes among the parties." Williams, 747 F.Supp.2d at 20.
Another problem this Court has is that this motion in limine is essentially a motion for reconsideration of motion for reconsideration.
Mem. Op. & Order Denying Reconsideration 5-6, Oct. 31, 2012, ECF No. 399. In that opinion, the Court emphasized that this issue had been repeatedly argued:
Id. at 6-7. Other than arguing that the District needs expert testimony to introduce the reports, the plaintiffs' arguments are basically the same as those previously, and repeatedly, rejected by this Court. Not only are plaintiffs using a motion in
The plaintiffs raise one new objection to the discrepancy reports — namely that the "District needs expert testimony to establish that the methodology supporting its overdetention numbers and discrepancy reports is reliable" and any opinion testimony used to support the reports and overdetention numbers would be opinion testimony "based on an unreliable methodology." Pls.' Mot. in Limine 2.
The discrepancy reports are not expert reports. They are business records — created not in anticipation of litigation, but in the normal course of business — that do not require a Rule 26(a)(2) designated expert to authenticate them. Like the District's earlier "Analysis of Releases," the discrepancy reports "[do not] purport to be, and [are] not expert witness testimony; [they are] clearly [] report[s] created by DOC staff" summarizing the monthly count of overdetentions. Barnes, 793 F.Supp.2d at 292. Testimony from a DOC official familiar with how these reports were generated, what criteria and methodology were used, et cetera, is direct testimony concerning the DOC's business records. It is not expert testimony.
The Court also agrees with the District's alternative argument that the Court could, if necessary, admit "`lay opinion testimony' to explain and interpret the District's discrepancy reports," Def.'s Opp'n 6. The opinions or inferences offered by Jeannette Myrick — who has extensive personal experience with reviewing inmate jackets and identifying potential overdetentions — would be "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Hall v. CIA, 538 F.Supp.2d 64, 69 (D.D.C.2008) (quoting Fed.R.Evid. 701). There is no need for the Court serve as a "gatekeeper" — ensuring that expert testimony is "valued," with conclusions based on "good grounds," Groobert v. President and Directors of Georgetown College, 219 F.Supp.2d 1, 6 (D.D.C.2002) — "for instances involving lay opinion testimony." United States v. Eiland, 2006 WL 2844921, *2 (D.D.C. Oct. 2, 2006).
Lay opinion testimony is admissible if "the specialized knowledge at issue was gained though experience rather than though scientific or technical training," so long as the witness testified "based solely on personal experience with the case at issue." Armenian Assembly of Am. v. Cafesjian, 746 F.Supp.2d 55, 65 (D.D.C. 2010). People at different jobs can obtain different kinds of "specialized knowledge" based on their training and experiences at that job. See, e.g., United States v. Lawson, 653 F.2d 299, 303 (7th Cir.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982) (concluding that lay opinion testimony by FBI agents as to defendant's sanity was properly admitted despite fact that the agents had little opportunity to view the defendant); United States v. Mastberg, 503 F.2d 465 (9th Cir. 1974) (permitting under Rule 701 the testimony of a customs inspector that the defendant appeared nervous); State v. Johnson, 221 Mont. 503, 719 P.2d 1248, 1256-57 (1986) (holding that, in a prosecution for driving under the influence of alcohol, a police officer was properly allowed to testify as a lay witness on the basis of his own
The discrepancy reports, and testimony about them, are admissible at the liability trial. However, the Court should refine its earlier statement that the discrepancy reports are "admissible for all purposes." Barnes, 793 F.Supp.2d at 293. That is not entirely accurate. The District mentioned, at the latest pretrial conference, that it may use the discrepancy reports and related testimony to contest the overdetention numbers provided by the plaintiffs' experts. Certainly it may do so indirectly — by presenting its overdetention numbers and explaining how the DOC prepared them, the District may provide a compelling alternative to plaintiffs' numbers, and convince a jury to credit its figures over those provided by the plaintiffs. Ms. Myrick — or any other District witness — cannot speak beyond her personal experience and expertise in tracking overdetentions and preparing reports. Even if Ms. Myrick were qualified to comment on the statistical methods used by plaintiffs' experts, the District has not designated her as a rebuttal expert. As noted by this Court:
Barnes, 289 F.R.D. at 15, 2012 WL 4466669, *13. Not having designated an expert to rebut Mr. Day and Dr. Kriegler's reports may prove detrimental to the District, but the Court reminds the District that it passed on several opportunities to designate an expert. The District cannot correct for this oversight by using Ms. Myrick and its discrepancy reports as ersatz rebuttal expert testimony.
The District moves to exclude all evidence or mention of the settlement in Bynum v. District of Columbia, Civil No. 02-956(RCL). The Bynum case dealt with a virtually identical issue — the class plaintiffs claimed that the District's DOC had a practice of overdetaining and strip searching inmates. See Compl., May 16, 2002, ECF No. 1, 02-cv-956. In fact, Messrs. Barrett Litt, Paul Estuar, and William Claiborne — attorneys of record in the present action — also represented the plaintiffs in Bynum. This Court approved of a settlement in Bynum in January 2006. Bynum v. District of Columbia, 412 F.Supp.2d 73 (D.D.C.2006). The approved settlement provided monetary relief to individual class members who had been overdetained, id. at 77-78, and provided the following class-wide prospective relief:
Id. at 78. Of the $12 million in settlement funds, $3 million was to "revert to the D.C. Department of Corrections to be spent on programs and services which relate to the subject of this complaint," id. at 79, including "build[ing] a state of the art Inmate Processing Center (IPC) within the foot print of the DC Jail site, which will be a project totaling approximately $5 Million. The additional $2 million required to complete the project will be provided by the District government," id. at 83. The Bynum settlement also provided:
Id. at 87. The District did not admit to any wrongdoing in settling Bynum. Id.
The District strongly objects to the introduction or mention of the Bynum settlement in the upcoming liability trial, claiming it "fails every test of admissibility under the Federal Rules of Evidence." Def.'s Mot. in Limine 5 (formatting altered). According to the District, the Bynum settlement is irrelevant, precluded by Federal Rule of Evidence 408(a), and unfairly prejudicial, confusing, and cumulative. Id. at 5-8.
First, the Court must consider whether the evidence is relevant. The District argues that the "Bynum class period ended seventeen months before the start of the Trial Period. A prior case about events that took place seventeen months previous and ended in a no-fault settlement does not make it any more or less likely that the District had a pattern and practice of overdetention during the Trial Period." Id. at 6. Certainly, if the plaintiffs sought to use the Bynum settlement to prove that the District overdetained inmates prior to 2006 and, thus, was more likely to have overdetained thereafter, the Bynum settlement would be of limited probative value. More important, introducing the settlement for this purpose would violate Federal Rule of Evidence 408(a), which provides that evidence of a settlement is not admissible "to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or impeach through prior inconsistent statement or contradiction." Therefore, the Court will not allow plaintiffs to use or mention the Bynum settlement to suggest that the District had overdetained inmates during the time covered by the Bynum settlement. To allow otherwise would plainly violate Rule 408(a), and the prejudicial effect of this evidence would outweigh its probative value.
The District's Motion in Limine makes assumptions about how plaintiffs will use the Bynum settlement, but the plaintiffs aver that they
Pls.' Opp'n to Def.'s Mot. in Limine 3. The plaintiffs' focus on the relevance of the prospective and injunctive provisions of the Bynum settlement — in particular its stipulation that DOC use $3 million of the settlement fund to prevent future overdetention problems. Id. at 4. They also wish to use the fact that the Bynum class sued the District to show that the District was on notice of a potential overdetention problem. Id. at 5-6.
Barnes, 793 F.Supp.2d at 279. In granting summary judgment for the plaintiffs for the first sixteen months of the class period, this Court expressed "alarm at the DOC's lack of urgency in responding to this disturbing pattern of overdetentions despite the notice provided by the Bynum litigation." Id. If the Court found the Bynum suit, and the injunctive provisions of its settlement, significant to its ruling on summary judgment, certainly those matters could be relevant to liability for the trial period.
Relevance only gets the plaintiffs so far. Relevant evidence can still be excluded if it is unduly prejudicial, or otherwise barred by the Federal Rules of Evidence. Rule 408 applies to this situation, so the Court must determine whether the Bynum settlement is being offered "either to prove or disprove the validity ... of a disputed claim or to impeach by a prior inconsistent statement or a contradiction," or whether this evidence is being "admit[ted] for another purpose." Fed.R.Evid. 408. Defendant primarily relies on Trebor Sportswear
Def.'s Mot in Limine. The District continues this line of argument in its Reply:
Def.'s Reply 2.
Again, the District misunderstands how the plaintiffs seek to use the Bynum case. It would be impermissible for plaintiffs to use the Bynum settlement to show that since the District "was liable for a ... overdetention that happened on August 31, 2005," this proves that "the exact thing against the exact same defendant ... occurred one day later." Def.'s Reply 2-3 (emphasis omitted). Once more, plaintiffs are not using the Bynum settlement to show that an individual overdetention actually happened during the Bynum class period, or that any individual overdetention happened during the Barnes trial period — and to the extent plaintiffs might have, they are hereby barred from doing so. The plaintiffs are not arguing that prior overdetentions by the District show a propensity for future overdetentions. Cf. Dodson v. CBS Broadcasting Inc., 423 F.Supp.2d 331, 334 (S.D.N.Y.2006) (evidence of prior suits by EEOC to prove defendant's propensity for sex discrimination irrelevant and prejudicial). The Bynum settlement shows notice of a problem, and a promise by DOC to take specific measures to alleviate the problem. But proving this does not win the case for plaintiffs if they cannot show that there were any overdetentions, or that the District did not take sufficient measures to address the potential problem. The defendant's argument that the Bynum settlement goes too much to the "heart of the case," and is not sufficiently "collateral," does not prevail.
The District's heavy reliance on Trebor — a Second Circuit case from 1989 that has only been cited by two district courts
Within this Circuit, Judge Facciola considered Trebor, PRL, and Rule 408 in C & E Services, Inc. v. Ashland Inc., 539 F.Supp.2d 316 (D.D.C.2008). His approach is instructive here. In this case, the General Services Administration conducted a post-award audit on defendant Ashland, and concluded that Ashland had overcharged government customers. The GSA referred the matter the U.S. Attorney's Office, who began a False Claims Act investigation, which was ultimately resolved by a seven-figure settlement between Ashland and the government. The plaintiff in that action claimed that Ashland withheld this information from them "as part of a scheme by Ashland to place the defectively priced products into [plaintiff's] GSA contract schedule." Id. at 318. Plaintiff brought a breach of contract action, and sought to introduce the settlement between Ashland and the U.S. Attorney "as evidence of express misrepresentations, half truths, and deceptions as to the nature of the audit, its conclusions, and the Settlement itself-which they claim led to their injuries." Id. at 321.
Judge Facciola began his discussion by recognizing that "as a magistrate judge who often presides over settlement discussions, I am constantly exposed to the concern of litigants that a settlement may be used by a third party to establish liability. The very policy underlying Rule 408 would be defeated if it did not operate to preclude the admissibility of settlement discussions in a case involving another party or another claim." Id. at 320. With this in mind, he considered Rule 408's "other purposes" exception, and Trebor's suggestion that "when the claim settled and the claim asserted are inextricably intertwined, the exclusion that permits the use of settlement discussions for other purposes cannot apply." Id. After considering PRL's "refine[ment]" of Trebor, Judge Facciola allowed plaintiffs to introduce the settlement because "it is not being used to establish the validity of the underlying claims extinguished by the Settlement, but rather for the `other purpose' of establishing Ashland's misrepresentations upon which plaintiffs's allegedly relied." Id. at 321.
Following this approach, this Court will allow plaintiffs to mention the Bynum settlement because it is not being used to establish the validity of the underlying claims extinguished by the settlement —
The Court understands the defendant's concerns about the public policy implications of allowing introduction of the Bynum settlement. It understands that "[t]he Rule [wa]s drafted to provide every incentive for compromise, and without such a broad rule of exclusion, litigants would be deterred from free-flowing settlement negotiations where multiple suits have been or might be brought." 2 STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIEL CAPRA, FEDERAL RULES OF EVIDENCE MANUAL § 408.02 at 408-13 (9th ed. 2006). However, in support of the District's position that allowing evidence of the Bynum settlement "would have a devastating effect on settlement negotiations, contrary to the purposes of FRE 408," Def.'s Reply 3, the District cites a case that says no such thing. In Faulkner, the court stated that "[i]n applying the `another purpose' exception to Rule 408, `the trial judge should weigh the need for such evidence against the potentiality of discouraging future settlement negotiations.'" 797 F.Supp.2d at 316 (quoting Starter Corp. v. Converse, Inc., 170 F.3d 286, 293 (2d Cir.1999)). In Faulkner, the court found that these factors favored the plaintiff, and admitted evidence of the settlement. Id. at 316-17.
When this Court weighs the need for evidence of the Bynum settlement against the potentiality of discouraging future settlement, it finds that the interests favor admitting the settlement. This Court itself found, at summary judgment, that the Bynum suit and settlement were relevant evidence of deliberate indifference. Barnes, 793 F.Supp.2d at 279. Allowing this settlement to come in, for this limited purpose, would not unduly discourage future settlement negotiations. A key interest in settlement, especially of class actions, is finality; parties could not be assured of finality if third parties could use the settlement, as an admission of guilt, in subsequent actions. Cf. William B. Rubenstein, Finality in Class Action Litigation: Lessons from Habeas, 82 N.Y.U. L. REV. 790, 820-25 (2007) (discussing finality as traditional interest in class action litigation). The finality offered by settlement is typically retrospective, and does not usually foreclose liability for future misdeeds. A defendant should not be able use a settlement as a shield if it continues to engage in the same unlawful conduct, and new plaintiffs would need to look at the history of the defendant's knowledge and conduct to make their case. In fact, if Rule 408 operated to curtail the ability of plaintiffs to bring new suits if the defendant continues to injure them in the same way, then this could discourage plaintiffs from settling. In cases where notice and past practice are key elements, the District cannot simply ask everyone to ignore the prospective obligations it undertook as part of the Bynum settlement.
With respect to the Bynum settlement, the Court finds that the fact that a suit was filed, and that the District undertook prospective injunctive obligations, are relevant to the issue of deliberate indifference. Rule 408 applies, but this limited use of the Bynum settlement falls under the "other purposes" exception of 408(b). To mitigate any possible prejudice, the Court
Plaintiffs have indicated that they expect to call up to five class members to testify at the liability trial. The District argues that "[b]ecause this testimony would be irrelevant to the issues at hand, time-consuming, confusing, duplicative, and prejudicial, the District requests that it be excluded." Def.'s Mot. in Limine 9. The plaintiffs intend to call two witnesses — Judith Jameson and Razina Jones — who were allegedly overdetained during the Barnes class period, but prior to the trial period currently in dispute. The plaintiffs also propose to have up to three class members, who were allegedly overdetained during the trial period, testify. See Ex. 1 to Def.'s Mot. in Limine 1-3, 17-18. These witnesses will testify "about their Commitment Date, their last court date, where they went after last court appearance ..., how they were processed back into the DC Jail/CTF, how and when they were ultimately released, and their Release Date." Id. at 17-18. The plaintiffs argue this "testimony is relevant to the jury's understanding of the release process from the perspective of a person who has been overdetained." Pls.' Opp'n 15.
The District avers that testimony from class members is irrelevant to the issue of "whether the District was deliberately indifferent to plaintiffs' rights through a custom and practice of overdetentions during the trial period." Def.'s Mot. in Limine 10. The District argues that none of the class members' proposed narratives relates to the factors relevant to deliberate indifference, which include "`the delays associated with necessary administrative procedures, the total number of persons overdetained during the period, the rate of overdetentions given the total number of releases processed and the duration of individual overdetentions.'" Id. (quoting Barnes, 793 F.Supp.2d at 277). The District also argues that focusing on the individual experiences of class members may be misleading to a jury, suggesting that the length of their overdetentions or experiences may be typical. The District also argues that individual testimony is a waste of time and duplicative, and that the sympathetic narratives by class members may prove prejudicial to the District. Id. at 12-13.
The plaintiffs respond that the testimony of class members will not cause undue delay, as they expect each witness will only testify for 15-20 minutes on direct examination. Pls.' Opp'n 15. They claim that class member testimony is not cumulative or duplicative; while Dr. Kriegler will testify about his opinions on the total number of overdetentions, and the length of those overdetentions, "[h]e will not be able to offer testimony from the perspective of an inmate who was actually released after midnight on the day he or she was entitled to release." Id. at 17. "By offering testimony of the process of commitment, appearing for court, and release from three different class members, the jury will obtain a complete picture of the process from the perspective of a class member." Id.
The testimony of Judith Jameson and Razina Jones — who were overdetained prior to the trial period, but during the Barnes class period — may be relevant to show a pattern and practice of overdetentions, that things did not change at DOC for the people going through the process. This testimony is only relevant if the three class members from the trial period testify; if the plaintiffs cannot secure class witnesses from the trial period to testify, the testimony of Jameson and Jones will be excluded as irrelevant.
The District raises concerns about "sympathetic narratives," Def.'s Mot. in Limine 12, that may distract the jury or prejudice the District. The plaintiffs are permitted to put a "human face" on the harms they allege, as long as the testimony is not inflammatory, or extend beyond matters relevant to the District's liability for overdetentions. Each witness must limit its testimony to their personal experiences being overdetained, and the process they went through; they are not permitted to discuss strip searches — for the reasons discussed infra Part IV.E — or "injury" testimony that would be primarily relevant to the damages stage. If the plaintiffs are not willing to limit their witnesses' testimony to these matters, the Court will not permit them to testify, as the probative value would be outweighed by its potential for undue prejudice.
The Court shares the District's concern with the fact that the plaintiffs have yet to name three of their class member witnesses. The Court understands that it is difficult to locate suitable witnesses — especially when, by definition, all potential witnesses have been "in and out of the system." But the Court does not agree that the District would suffer little prejudice by plaintiffs providing short notice of who will testify. Cf. Elion v. Jackson, 544 F.Supp.2d 1, 4-6 (D.D.C.2008) (discussing standards for considering whether to exclude witnesses not previously named in pretrial disclosures). The District has a right to investigate whether the class witnesses are reasonably representative of the class, or whether they are "outliers" whose atypical experiences would confuse the jury, prejudice the District, and diminish the probative value of their testimony. To this end, the Court will order plaintiffs to name their class witnesses within 10 days of this date. Failure to do so will prevent the plaintiffs from calling any class witnesses, including that of Judith Jameson and Razina Jones, whose testimony would become irrelevant without a comparator witness from the trial period.
The District asks the Court to preclude the plaintiffs from introducing expert testimony or evidence from Sean Day, and in turn exclude or "severely circumscribe" Dr. Kriegler's reports that were based on data provided by Mr. Day. Def.'s Mot. in Limine 13, 20.
Mr. Day is a "lawyer licensed in state and federal courts in Maryland (1995) and the District of Columbia (1996), with more than 10 years experience in criminal defense and § 1983 litigation." Day Decl. ¶ 1, March 18, 2010, ECF No. 101-14 ("March 2010 Day Decl."). He bases his statements about reviewing inmate jackets upon his "education, training, experience, expertise, including prior experience in reviewing Dept. of Corrections case jackets, and [his] review of jackets and data in this case." Id. ¶ 2. Mr. Day previously assisted "with the review of class member claims... in [Bynum], which involved reviewing approximately 500 DOC jackets to determine overdetentions.... This was a particularly involved process because [he] reviewed all bookings for each person during the class period, not just one booking period per person." Id. ¶ 3. Mr. Day's works with plaintiffs' statistical expert Dr. Kriegler to generate expert reports on the total number of overdetentions occurring during particular periods. Specifically, Mr. Day cross-references potential overdetentions generated from the electronically stored JACCS data with physical inmate jackets. Mr. Day explains the process in more detail:
Suppl. Report of Sean Day 2 n. 2, June 11, 2012, ECF No. 360-2. Mr. Day reviews the individual, physical inmate jackets to determine whether a potential overdetention flagged by the database query meets
Federal Rule of Evidence 702, which governs testimony by expert witnesses, provides:
Expert testimony must be "both relevant and reliable." H & R Block, 831 F.Supp.2d at 30. "The burden is on the proponent of the testimony to show by a preponderance of the evidence that the proffered expert witness is qualified, that his proposed testimony would be useful to the finder of fact, and that the testimony is reliable." Sykes v. Napolitano, 634 F.Supp.2d 1, 5 (D.D.C.2009) (citing Meister v. Med. Eng'g Corp., 267 F.3d 1123, 1127 n. 9 (D.C.Cir.2001)). "This Court's role is to act as a `gatekeep[er],' excluding any expert testimony that is not sufficiently reliable or helpful to the jury." Parsi v. Daioleslam, 852 F.Supp.2d 82, 85 (D.D.C. 2012) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
Under the traditional Daubert standard, the court may consider the following factors to determine whether expert testimony is admissible under Rule 702:
Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. However, Courts frequently encounter situations where these Daubert factors do not readily apply. The Supreme Court has stated that Daubert itself "made clear that its list of factors was meant to be helpful, not definitive." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). "In matters where [the Daubert] factors do not apply, reliability concerns may focus on personal knowledge or experience. The gatekeeping inquiry is `flexible' and the `law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.'" Groobert, 219 F.Supp.2d at 9 (quoting Kumho, 526 U.S. at 141-42, 119 S.Ct. 1167). Even when applying this `flexible' standard, the Court must still ensure that the expert testimony is relevant and reliable. Id.
The District's first objection is that Mr. Day's proffered testimony is irrelevant because it "relates to matters of common sense that a jury can decide for itself." Def.'s Mot. in Limine 15 (quoting Keys v. WMATA, 577 F.Supp.2d 283, 285 (D.D.C.2008) (internal quotation marks omitted)). The District continues:
Id. at 16. Here, the District seems to suggest that the jury is perfectly capable of running database queries against JACCS data to identify potential overdetentions, and then know how to read an individual inmates' file to determine whether that inmate was overdetained per the class definition, and then repeat this process hundreds of times over.
Next, the District argues that Mr. Day's testimony would be unfairly prejudicial, confusing, and misleading. The District worries that "the jury could be misled into the belief that all the overdetentions `objectively' determined by the Mr. Day were the fault of the District." Def.'s Mot. in Limine 17. The District claims that "Mr. Day does not view any reason for delay as legitimate or justified, ascribing all overdetentions to the District, including instance where the District received paperwork late from a third-party, or where a federal agency miscalculated an inmate's sentence." Id. (emphasis in original). In other words, the District thinks "Mr. Day's `jacket analysis' is [] impermissibly overbroad, putting the blame on the District for numerous overdetentions caused by the actions of third parties." Id. at 18.
Mr. Day's analysis is not undermined, or unduly prejudicial, because he does not exclude potential overdetentions that the District wants to see excluded — the same way that the District's discrepancy reports are not inadmissible simply because they exclude potential overdetentions the plaintiffs want to see included. Mr. Day cannot be faulted for applying the class definition when doing his jacket analysis. The certified class in Barnes covers:
Barnes v. District of Columbia, 242 F.R.D. 113, 121 (D.D.C.2007). The class definition does not exclude cases where the late release was the "fault" of some third party.
Whether the District is at "fault" for certain types of overdetentions is open to some debate, and the plaintiffs are entitled to provide a report covering all the overdetentions for which they think the District is liable, and take a different position on
If the District has an issue with how Mr. Day classified certain late releases, it may address this on cross-examination. Disqualification of Mr. Day — and likely, by extension, Dr. Kriegler — is not warranted. See, e.g., Harris v. Koenig, 815 F.Supp.2d 6, 10 (D.D.C.2011) (Expert's "testimony will unquestionably `assist the trier of fact,'.... Whether or not it is based on `unreasonable assumptions' will be determined at trial after full cross-examination. Defendant's objections go to the weight, not the admissibility of his Report."); S.E.C. v. Johnson, 525 F.Supp.2d 70, 76 (D.D.C.2007) ("It is for the jury, not the Court, to determine whether [expert's] opinions are suspect because facts upon which he relied were shown to be inaccurate or unproven."); cf. Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387, 1392 (Fed.Cir.2003) ("When, as here, the parties' experts rely on conflicting sets of facts, it is not the role of the trial court to evaluate the correctness of facts underlying one expert's testimony.").
Finally, the District argues that Mr. Day's methodology is inadmissibly unreliable, and does not withstand scrutiny. Def.'s Mot. in Limine 19 (citing Groobert, 219 F.Supp.2d at 9 (expert testimony is unreliable "when an expert chooses to utilize her own unique methodology rather than the proper analysis which is well-known and respected"); id. at 8 ("General acceptance in the community is an important factor in evaluating an expert's methodology[.]")). The District objects to the sui generis nature of Mr. Day's analysis, arguing that it is unreliable because "there is no indication that anyone else has ever used Mr. Day's methodology before." Def.'s Mot. in Limine 19; but see McReynolds v. Sodexho Marriott Services, Inc., 349 F.Supp.2d 30, 45 (D.D.C.2004) (question is not whether other courts have admitted an expert's testimony in the past, but whether his testimony in the instant case is sufficiently reliable and relevant to warrant admission); Dyson v. Winfield, 113 F.Supp.2d 44, 48-49 (D.D.C.2000) (expert's failure to publish and subject conclusions to peer review not reason to find expert's methodology unreliable, when there was no reason to publish study because of lack of interest in subject matter).
The fact that the District could not find a reported decision certifying an expert who provides testimony about whether "an overdetention occurred," id., suggests that it is inappropriate to use the more rigid Daubert framework to determine whether Mr. Day's methods are reliable. As explained in Groobert:
219 F.Supp.2d at 7. The Court finds that Mr. Day's testimony — being highly specialized and specific — is not amenable to analysis under the Daubert factors. It cannot evaluate Mr. Day's "reliability based on such Daubert factors as `whether the expert's technique or theory has been tested' or `whether the technique or theory has been subject to peer review and publication' because of apparent lack of information on the subject." Id. (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). As in Groobert, this Court finds that "[p]ersonal experience is the proper method of assessing the reliability" of Mr. Day's expert testimony. Id. (citing Kumho, 526 U.S. at 150, 119 S.Ct. 1167).
Mr. Day has years of experience — dating back to the Bynum litigation — reviewing DOC inmate jackets and other data to determine whether an inmate was overdetained. March 2010 Day Decl. ¶¶ 2-4. He has personally reviewed hundreds of inmate jackets, and has educated himself on the DOC's system of collecting inmate date. Id. Rule 702 "allows for experience such as employment in the field as well as experience in performing tests or studies." Groobert, 219 F.Supp.2d at 7 (citing United States v. Ramsey, 165 F.3d 980, 984 (D.C.Cir.1999) (holding that an expert's testimony regarding the plaintiff's past criminal history satisfied Rule 702 because of his specialized knowledge, education, skill, and expertise as an agent of the Drug Enforcement Administration); United States v. Hankey, 203 F.3d 1160, 1169-70 (9th Cir.2000) (holding that the trial court properly admitted expert testimony concerning the plaintiff's gang membership since the expert was a 21-year veteran of the police department who has devoted years to working with gangs)). Given the hyper-specific and narrow nature of Mr. Day's expertise in analyzing DOC data, his almost ten years of professional experience reviewing hundreds of inmate files allows him to qualify as an expert through knowledge, skill, experience, training or education. See Fed.R.Evid. 702.
Several cases have found "expert testimony unreliable when an expert choses to utilize her own unique methodology rather than the proper analysis which is well-known and respected." Groobert, 219 F.Supp.2d at 9 (citing Kumho, 526 U.S. at 158, 119 S.Ct. 1167 (stating that experience-based expert testimony was unreliable because there was no indication that others in the industry used the expert's two-factor test); Meister, 267 F.3d at 1131 (holding that an expert lacked reliability when "no reasonable scientist would rely on this methodology in the face of voluminous epidemiological evidence to the contrary"); Raynor v. Merrell Pharm. Inc., 104 F.3d 1371, 1375 (D.C.Cir.1997) (rejecting expert testimony because an overwhelming body of evidence utilizing a "sound" methodology pointed in the opposite direction)).
In this case, there is no "well-known and respected" "proper analysis" when it
The District's problems with Mr. Day's methodology largely go to the weight of the evidence, not its admissibility, and can be addressed on cross-examination. See, e.g., Ambrosini, 101 F.3d at 141 ("[B]y attempting to evaluate the credibility of opposing experts and the persuasiveness of competing studies, the district court conflated the questions of the admissibility of expert testimony and the weight appropriately to be accorded such testimony by a factfinder."); Groobert, 219 F.Supp.2d at 9 ("The only difference between [the defendant's expert's] evaluation and [the plaintiff's expert's] analysis is that [the defendant's expert's] analysis focuses on past income, which goes to the weight of the evidence rather than its admissibility."); Voilas v. Gen. Motors Corp., 73 F.Supp.2d 452, 462 (D.N.J.1999) (holding that an expert's failure to evaluate all available options "neither renders his methodology unreliable nor his report inadmissible but, rather, goes to the weight of his testimony").
The District should not be permitted to exclude Mr. Day's testimony because it disagrees with how he defines "overdetention," or because he is among the first to provide this type of expert testimony. Cf. Benedi v. McNeil — P.P.C., Inc., 66 F.3d 1378, 1385 (4th Cir.1995) (holding that expert testimony was reliable despite the lack of studies or tests because a "defendant should not be allowed to escape liability simply because ... there are, as yet, no epidemiological studies concerning [this specific subject area]"). Nor should the Court force the jury to review hundreds of inmate jackets to determine for themselves whether an inmate was overdetained. Mr. Day's testimony and reports are relevant, not unduly prejudicial, and based on a reliable methodology. His experience reviewing DOC inmate data and making determinations about whether overdetentions have occurred qualifies him as an expert under Rule 702.
The District asks the Court to preclude the plaintiffs from introducing evidence or testimony from Karen Schneider. Ms. Schneider prepared a report, dated May 2008, titled "Review of Paperflow Process between the Superior Court, the U.S. Marshals Service and the Department of Corrections," ("Schneider Report") commissioned by the District's Criminal Justice Coordinating Council ("CJCC"), with the concurrence of the D.C. Superior Court, the U.S. Marshals Service, and the DOC. The purpose of the Schneider Report was to review the transfer
First, the District objects to the Schneider Report and her testimony because they "are hearsay, and should be excluded on that ground alone, as they are offered as out-of-court statement for the truth of the assertions contained therein." Defs.' Mot. in Limine 21 (citing Mahnke v. WMATA, 821 F.Supp.2d 125, 154 (D.D.C. 2011) (expert reports and CVs are inadmissible hearsay)). The Schneider Report is not an expert report created in anticipation of litigation. The Schneider Report is either a party admission — and thus not hearsay — or falls under the public records exception to the hearsay rule. The District itself commissioned the study, and Ms. Schneider worked under the direction of the CJCC to focus "on how the process [of transferring court-generated paperwork] can become more efficient so as to avoid erroneous releases and potential overdetention of inmates." Schneider Report 1. Since Ms. Schneider acted as the District's agent in preparing the Report, the Report is a party admission, and therefore not hearsay.
The Court also agrees with the plaintiffs' alternative ground for admitting the Schneider Report, that it "meets the public record exception of Fed.R.Evid. 803(8)(A)(iii)." Pls.' Opp'n 31. The plaintiffs explain that the Report "was commissioned by the CJCC, an independent agency of the District of Columbia, with the concurrence of the DC Superior Court, as well as the Department of Corrections. It is a public record of a governmental agency, which sets forth factual findings resulting from an investigation made pursuant to authority granted by law, and as such, is admissible." Id.; see Huthnance v. District of Columbia, 793 F.Supp.2d 183, 210 (D.D.C.2011) (Lamberth, C.J.) (hearsay rule does not bar admission of the District's Office of Police Complaints' report that made factual findings and recommendations with respect to wrongful arrests for disorderly conduct, as the report was a public record of a governmental agency within the meaning of Fed.R.Evid. 803(8)(C)).
The Supreme Court held, in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 161-65, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), that evaluative reports containing statements
Apart from its hearsay objection, the District claims that the Schneider Report is not relevant. The District avers that the purpose of the Schneider Report was "not to determined how many overdetentions occurred, or even why overdetentions occurred." Def.'s Mot. in Limine 21. While Schneider indicated that her "study did not focus on the reasons why the late releases at the DC Jail may occur," the Report noticed "that some late releases could occur due to problems related to the paperflow process," and went on to try to "determine if there was a nexus between the late release and the paperflow process," Schneider Report 21-22.
Id. at 1 (emphasis added). The Report's discussion of the District's paperflow process, and how it could result in the overdetention of inmates in D.C. Jails, is clearly relevant to the issue of whether the District had a pattern and practice of overdetaining inmates. Granted, it does not offer a concrete total number of overdetentions, but that is not the only issue remaining. See Barnes, 793 F.Supp.2d at 277, 284 (also relevant, inter alia, are "the delays associated with necessary administrative procedures," and whether the District was "on notice that absent significant intervention on its part, a pattern of unconstitutional behavior would certainly continue at the DOC"). The Schneider Report provides a "piece of the puzzle" to explain whether the District is liable for overdetentions during the Trial Period.
Finally, the District states that "there are numerous indications that [Ms. Schneider] studied and reported on events, documents, and procedures that occurred outside the Trial Period." Def.'s Mot. in Limine 21. Therefore, the District argues that portions of the Schneider Report contains irrelevant material, as the "Court has determined that only the District's liability during the Trial Period is to be determined at the upcoming trial." Id. at 22. Furthermore, the Report would be confusing to the jury, as the District claims that "[i]t will be exceedingly difficult, if not impossible, for the jury to only consider events and situations within the Trial Period, in light of Ms. Schneider's reports and proffered testimony." Id.
In response, the plaintiffs make the salient point that "the Schneider Report was issued in May 2008, at most 3 months after
The District requests that the Court preclude any mention of strip searches during the trial on liability. The District argues that the strip search issue is not relevant to liability for overdetentions, and in any event would be overly prejudicial. Def.'s Mot. in Limine 22-23. While this Court has said that "the overdetention problem and the strip search problem are interrelated, one leading to another," Barnes, 793 F.Supp.2d at 266, the District is correct that "it is overdetentions that lead to strip searches, not vice-versa," Def.'s Mot. in Limine 22-23. While many overdetained inmates may have been strip searched, many inmates who were not overdetained have also been strip searched. Therefore, the relevance of this evidence under Federal Rules of Evidence 401 and 402 is weak. Furthermore, evidence about strip searches — an invasive, embarrassing practice — could be unduly inflammatory, distracting, and prejudicial. Per Federal Rule of Evidence 403, the Court will preclude the plaintiffs from mentioning facts regarding strip searches.
If insanity is doing the same thing over and over again and expecting different results, both parties should be concerned. The plaintiffs ask the Court, for the fifth time, to exclude the District's discrepancy reports. For the fifth time, the Court refuses, and will let a jury decide the question of whose overdetention numbers are more credible. The District is embroiled in this litigation because — after settling Bynum and agreeing to spend $3 million of class funds to help solve the problem — it continued the same unconstitutional practices, and showed no urgency in enacting the kind of major, fundamental changes needed to address the overdetention problem.
The Court will allow plaintiffs to introduce testimony from up to three class members who were overdetained during the trial period (and two witnesses who were overdetained during the first sixteen months of the class period) so long as: (1) the plaintiffs identify these witnesses within 10 days of this days of this date, and these witnesses should be reasonably representative of the class — offering outliers or extreme cases could lead to preclusion; (2) the witnesses keep their testimony as brief as possible, and only focus on matters relevant to the liability phase — such as the process they went through that led to their overdetainment; the witnesses may not discuss strip searches, and should not offer testimony that is primarily related to individual damages; and (3) if the plaintiffs fail to name Trial Period witnesses by the deadline, they may not call the two witnesses who were detained prior to the beginning of the Trial Period.
The Court will allow the expert testimony and reports of Sean Day. Mr. Day offers testimony on a very narrow, specific issue — how to determine overdetentions from DOC records — so the lack of peer review and acceptance in the community of his methodology should not be held against him. His kind of expert testimony is virtually sui generis, but he has shown enough professional experience examining DOC records to demonstrate particular expertise in the field. The District objects to how Mr. Day defines an overdetention, but Mr. Day cannot be faulted for applying the class definition. Essentially, the District's complaints about Mr. Day's testimony go to its weight, not its admissibility, and the District will have an opportunity to cross-examine plaintiffs' experts thoroughly at trial.
The Schneider Report examining the paperflow process in the D.C. criminal justice system is clearly relevant to notice and deliberate indifference. It discusses the systematic and bureaucratic problems that can lead to erroneous and late releases. As a document created by an agent of the District and at the direction of the defendant, the Report is a party admission and not hearsay. Alternatively, the report falls under the public records exception to the hearsay rule. The Report is not fatally prejudicial because it might cover a few months' worth of events that fell outside of the Trial Period. The idea of a "Trial Period" was created ex post by this Court, in part because of the varying availability of evidence for differing periods. The District cannot expect a contemporaneous document to fall neatly within the Trial Period, and any concerns that linger can be dealt with by a limiting instruction to the jury.
The plaintiffs will not be allowed to mention strip searches during the overdetention liability trial. While the fact that an inmate was overdetained makes it more likely he was strip searched, the fact that an inmate was strip searched does not make it more likely that he was overdetained. Whatever probative value mentioning strip searches would have is outweighed by the potential for undue prejudice and confusion. The topic of strip searches is likely to evoke strong reactions in a jury, and the Court need not accept the risk of such emotional reactions when evidence of strip searches proves so little about liability for overdetentions.
