1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THE ESTATE OF MICHAEL WILSON, Case No.: 3:20-cv-00457-RBM-DEB by and through its successor-in-interest 12 PHYLLIS JACKSON, and PHYLLIS ORDER DENYING COUNTY 13 JACKSON, DEFENDANTS’ MOTION TO

DISQUALIFY PLAINTIFF’S

14 Plaintiff,

EXPERT DR. HOMER VENTERS

15 v. AND/OR TO EXCLUDE HIS

OPINIONS AT TRIAL

16 COUNTY OF SAN DIEGO, et al.,

17 Defendants. [Doc. 98] 18 19 On June 13, 2023, the County Defendants filed a motion to disqualify the Estate of 20 Michael Wilson’s (“Plaintiff”) expert witness Dr. Homer Venters and/or to exclude his 21 opinions at trial (“Motion”). (Doc. 98.) In their Motion, the County Defendants argue Dr. 22 Venters is disqualified due to a conflict of interest and lacks foundation for his opinion that 23 the County failing to have policies, procedure, or training concerning missed medications. 24 (Id. at 4–10.)1 Plaintiff filed a brief in opposition to Defendant’s Motion on August 2, 2023 25 (“Opposition”) (Doc. 112), and the County Defendants filed a reply on August 30, 2023 26

27 1 The Court cites the page number displayed on the docketed document, not the CM/ECF 28 1 (“Reply”) (Doc. 127). 2 For the reasons discussed below, the County Defendants’ Motion is DENIED. 3 I. RELEVANT BACKGROUND 4 A. Dr. Venters’ Experience and Report 5 Plaintiff designated Dr. Homer Venters as an expert in correctional medicine who 6 will provide testimony concerning “the standard of medical care in correctional facilities; 7 the level and appropriateness of care provided to decedent Michael Wilson within the San 8 Diego County Central Jail; policies and procedures pertaining to medical care; medical 9 charting and electronic health records; the administration of medication; and oversight of 10 medical care providers.” (Doc. 96-2 (Ex. Q) at 1.) Dr. Venters is a physician, internist, 11 and epidemiologist with over a decade of experience in health care services for incarcerated 12 persons. (Doc. 98-2 (Ex. B), Dr. Homer Venters’ Expert Report (“Venters Report”) at 1.) 13 In preparing his expert report, Dr. Venters listed that he reviewed Critical Incident Review 14 Board (“CIRB”) documents and a California State Auditor’s Report. (Id. at 3–4.) Dr. 15 Venters confirmed that he reviewed CIRB documents in his deposition as well. (Doc. 98- 16 2 (Ex. A), Deposition of Dr. Homer Venters (“Venters Dep.”) 19:18–24.) Dr. Venters 17 understood that the CIRB records were subject to a protective order but did not recall 18 signing an agreement before receiving those records. (Id. at 61:18–62:6.) Dr. Venters did 19 not recall the amount of CIRB records he reviewed, or which documents he reviewed. (Id. 20 at 19:18-24, 65:1–6.) Dr. Venters was not sure whether he relied on the California State 21 Auditor’s Report in forming his opinions in this case. (Id. at 20:8-17.) 22 B. COCHS Best Practices Review 23 Between December 2018 and April 2020, Dr. Venters served as a Senior Health 24 Fellow and President of the Community Oriented Correctional Health Services 25 (“COCHS”), a nonprofit promoting evidence-based improvements to correctional practices 26 in the United States. (Venters Report at 2.) In his deposition, Dr. Venters stated that, while 27 he was either a Senior Health Fellow or President of COCHS, COCHS conducted a best 28 practices review for the County of San Diego. (Venters Dep. 53:10–22.) Dr. Venters did 1 not recall the best practices review beyond that it had to do with “big picture policies” 2 concerning how people come to be in jail and managing their care on the way through and 3 out of jail. (Id. at 53:23–54:5.) Dr. Venters was listed as an author of the best practices 4 review. (Id. at 54:6–8.) Dr. Venters did not recall looking at the profiling of medications, 5 medication records, or medication administration records (“MARs”) for the best practices 6 review, but he believed COCHS may have talked to staff at a policy level about how they 7 get medications and if some medications are hard to acquire. (Id. at 54:10–55:8.) 8 When asked whether Dr. Venters was told COCHS’ contract with the County of San 9 Diego contained certain confidentiality provisions, Dr. Venters stated “I don’t recall 10 looking at the contract. But so yes, I just don’t recall looking at that.” (Id. at 57:14–18.) 11 When asked if the information Dr. Venters learned from the best practices review 12 influenced his opinions in this case, he stated “[a]bsolutely not” and characterized the 13 review as high-level policy review that does not bear on this case or similar cases where 14 he has been retained to look at specific medical records. (Id. at 58:11–19.) When asked 15 whether there was no policy in place regarding continuation of medication, Dr. Venters 16 stated that, based on what he saw in this case, if there was such a policy, it was not effective 17 or being followed. (Id. at 69:11–21.) Dr. Venters explained that he did not review any 18 written policy regarding continuation of medication for admitted inmates and was not sure 19 whether the deficiencies he observed were the result of policy, practice, or training, or some 20 combination of the three. (Id. at 69:22-70:13.) When Dr. Venters was asked if his opinion 21 was that no training was provided to nursing staff on how to pass out medication and 22 document it on the MAR, he explained that it was not but rather his opinion was that there 23 was some deficiency in policy, practice, or training leading the system to not function. (Id. 24 at 77:1-15.) 25 In a declaration, Dr. Venters recalled that, as part of the best practices review, the 26 County explicitly declined to provide medical records of any patients or any other patient- 27 specific information. (Doc. 112-5, Declaration of Dr. Homer Venters (“Venters Decl.”) 28 ¶ 22.) Dr. Venters recalled talking to jail staff during a walkthrough where he was shown 1 a PowerPoint presentation concerning an overview of the jail and how it worked; he also 2 recalled meeting leadership of the jail, touring different parts of the facility including the 3 medical area and housing units, and not discussing specific patients or cases. (Id. at ¶ 23.) 4 The COCHS best practices review involved a two-day series of meetings and process 5 reviews, including observing several areas of two current jail facilities in San Diego. (Doc. 6 112-3 (Ex. B), COCHS Best Practices Review at 2.) Dr. Venters emailed the best practices 7 review to the Chief Operating Officer of the Officer of Public Safety for San Diego County 8 on March 30, 2020, but it is not clear when the meetings, process reviews, or facility 9 observations occurred. (Id. at 1–27.) The COCHS best practices review report has a 10 section on medication management, but that section makes no mention of any policy or 11 procedure of the San Diego County jail. (Venters Decl. ¶ 24; COCHS Best Practices 12 Review at 14–16.) The COCHS best practices review report also notes that “[t]he scope 13 of COCHS Engagement did not enable us to determine which model is actually operational 14 in the jail nor to determine the extent to which the procedures and processes were 15 conforming to policies that had been implicitly or explicitly selected by either the board or 16 the San Diego County Sheriff.” (COCHS Best Practices Review at 21.) 17 II. LEGAL STANDARD 18 A. Conflict of Interest 19 “Federal courts have the inherent power to disqualify expert witnesses to protect the 20 integrity of the adversary process, protect privileges that otherwise may be breached, and 21 promote public confidence in the legal system.” Hewlett-Packard Co. v. EMC Corp., 330 22 F. Supp. 2d 1087, 1092 (N.D. Cal. 2004). “However, disqualification is a drastic measure 23 that courts should impose only hesitantly, reluctantly, and rarely.” Id. “[D]isqualification 24 of an expert is warranted based on a prior relationship with an adversary if (1) the adversary 25 had a confidential relationship with the expert and (2) the adversary disclosed confidential 26 information to the expert that is relevant to the current litigation.” Id. at 1192–93. “[I]f 27 only one of the two factors is present, disqualification likely is inappropriate.” Id. at 1093. 28 “In addition to these two factors, the Court also should consider whether disqualification 1 would be fair to the affected party and would promote the integrity of the legal process.” 2 Id. The party moving to disqualify bears the burden of proof on these issues. Hayward 3 Prop., LLC v. Commonwealth Land Title Ins. Co., Case No. 17-cv-06177 SBA, 2021 WL 4 4923379, at *2 (N.D. Cal. Aug. 31, 2021) (citing Hewlett-Packard, 330 F. Supp. 2d at 5 1096). 6 In evaluating whether a confidential relationship with an expert existed, courts 7 consider: (1) whether the relationship was long standing and involved frequent contacts, 8 (2) whether the expert is to be called as a witness in the underlying case, (3) whether alleged 9 confidential communications were from the expert to the party or vice-versa, (4) whether 10 the moving party funded or directed the formation of the opinion to be offered at trial, (5) 11 whether the expert and party entered into a formal confidentiality agreement, (6) whether 12 the expert was retained to assist in the litigation, (7) the number of meetings that took place, 13 (8) whether work product or documents were discussed or provided to the expert, (9) 14 whether the expert received a fee, (9) whether the expert was asked not to discuss the case 15 with opposing parties and counsel, and (10) whether the expert derived any of his specific 16 ideas from work done under the direction of the party. Hewlett-Packard, 330 F. Supp. 2d 17 at 1093 (citing Stencel v. Fairchild Corp., 174 F. Supp. 2d 1080, 1083 (C.D. Cal. 2001); 18 Mayer v. Dell, 139 F.R.D. 1, 2–3 (D.D.C. 1991); Paul By & Through Paul v. Rawlings 19 Sporting Goods Co., 123 F.R.D. 271, 280 (S.D. Ohio 1988)). 20 Confidential information is information “of either particular significance or [that] 21 which can be readily identified as either attorney work product or within the scope of the 22 attorney-client privilege.” Hewlett-Packard, 330 F. Supp. 2d at 1094 (quoting Rawling 23 Sporting Goods Co., 123 F.R.D. at 279). It may include “discussions of the party’s 24 litigation strategy, its view of the strengths and weaknesses of each side, the role of each 25 party’s experts and anticipated defenses” and at least one court has concluded that 26 “[c]ommunication based upon technical information as opposed to legal advice is not 27 considered privileged.” Hayward Prop., LLC, 2021 WL 4923379, at *4 (citing Hewlett- 28 Packard, 330 F. Supp. 2d at 1094 (citations omitted)). “Because the burden is on the party 1 seeking to disqualify the expert, that party should point to specific and unambiguous 2 disclosures that if revealed would prejudice the party.” Hewlett-Packard, 330 F. Supp. 2d 3 at 1094. 4 B. Expert Qualification 5 Federal Rule of Evidence (“Rule”) 702 governs the admissibility of expert 6 testimony. Rule 702 provides: 7 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) 8 the expert’s scientific, technical, or other specialized knowledge will help the 9 trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product 10 of reliable principles and methods; and (d) the expert has reliably applied the 11 principles and methods to the facts of the case.

12 Fed. R. Evid. 702. “The party offering expert testimony has the burden of establishing its 13 admissibility.” Bldg. Indus. Ass’n of Washington v. Washington State Bldg. Code Council, 14 683 F.3d 1144, 1154 (9th Cir. 2012). 15 Before finding expert testimony admissible, the trial court must make a “preliminary 16 assessment of whether the reasoning or methodology underlying the testimony is 17 scientifically valid and of whether that reasoning or methodology properly can be applied 18 to the facts in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993). 19 “Under Daubert, the trial court must act as a ‘gatekeeper’ to exclude junk science that does 20 not meet Federal Rule of Evidence 702’s reliability standards by making a preliminary 21 determination that the expert’s testimony is reliable.” Ellis v. Costco Wholesale Corp., 657 22 F.3d 970, 982 (9th Cir. 2011) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145, 23 147–49 (1999)). 24 The Court must find “that any and all scientific testimony or evidence admitted is 25 not only relevant, but reliable.” Daubert, 509 U.S. at 590. “Expert opinion testimony is 26 relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And 27 it is reliable if the knowledge underlying it has a reliable basis in the knowledge and 28 1 experience of the relevant discipline.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2 2010). “[T]he court must assess [an expert’s] reasoning or methodology, using as 3 appropriate such criteria as testability, publication in peer reviewed literature, and general 4 acceptance.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th 5 Cir. 2013) (quoting Primiano, 598 F.3d at 564). “Reliable expert testimony need only be 6 relevant, and need not establish every element that the plaintiff must prove, in order to be 7 admissible.” Id. (citing Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 8 2007)). 9 The inquiry required by Rule 702 “is a flexible one.” Daubert, 509 U.S. at 594; see 10 also City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014) (citing 11 Alaska Rent-A-Car, Inc., 738 F.3d at 969). “In evaluating proffered expert testimony, the 12 trial court is ‘a gatekeeper, not a fact finder.’” City of Pomona, 750 F.3d at 1043 (quoting 13 Primiano, 598 F.3d at 565). “Challenges that go to the weight of the evidence are within 14 the province of a fact finder, not a trial court judge. A district court should not make 15 credibility determinations that are reserved for the jury.” Id. at 1044. “Shaky but 16 admissible evidence is to be attacked by cross examination, contrary evidence, and 17 attention to the burden of proof, not exclusion.” Primiano, 598 F.3d at 564 (citing Daubert, 18 509 U.S. at 596). 19 III. DISCUSSION 20 A. Disqualification for Conflict of Interest 21 The County Defendants argue Dr. Venters had a “position of trust” with the Sheriff’s 22 Department where he received confidential information, at least from interviews with jail 23 staff about medication management. (See Doc. 98-1 at 5–6.) The County Defendants 24 assert Dr. Venters must be disqualified because he is now testifying as an expert adverse 25 to the County on the same subject matter that he previously authored a confidential policy 26 report for the County on and that covered the relevant period. (See id. at 6.) The County 27 Defendants claim that best practices reviews may involve the County disclosing 28 confidential information to organizations such as COCHS. (See id. at 1.) Plaintiff responds 1 that the County Defendants have failed to meet their burden in that they (1) do not submit 2 a contract with Dr. Venters, (2) point to any confidentiality provision, or (3) submit proof 3 of any confidential information provided. (See Doc. 112 at 5.) The County Defendants 4 respond that Dr. Venters testified that he was told the contract contained confidentiality 5 provisions and that Dr. Venters’ access to the facility, staff, and leadership amounts to 6 confidential disclosures. (See Doc. 127 at 1.) The County Defendants also respond that 7 Dr. Venters’ opinions in this case are related to the best practices review in that he cites 8 National Commission on Correctional Health Care (“NCCHC”) standards and how the 9 County’s actions fell below those standards. (See id. at 1–2.) 10 i. Confidential Relationship 11 The County Defendants have failed to meet their burden of proving a confidential 12 relationship between Dr. Venters and the County. See Hewlett-Packard, 330 F. Supp. 2d 13 at 1093. The County Defendants have put forth insufficient evidence concerning the length 14 and frequency of Dr. Venters’ interaction with the County as part of the best practices 15 review, whether work product or documents were discussed or provided to Dr. Venters, 16 whether Dr. Venters received a fee for his services, whether he was told not to discuss the 17 best practices review with opposing parties, and whether Dr. Venters derived specific ideas 18 for his opinions in this case from that work. See id. Additionally, while it appears Dr. 19 Venters emailed the best practices review to the County on March 30, 2020, it is unclear 20 whether the two days of meetings, process reviews, and observation of some areas of two 21 facilities occurred before, during, or after the incident in this case. (See COCHS Best 22 Practices Review at 1–27.) 23 The Court is not persuaded by Dr. Venters’ equivocal statement during his 24 deposition, including not recalling reviewing a COCHS contract with the County, that such 25 a contract contained confidentiality provisions. (See Venters Dep. 57:14-18.) The County 26 Defendants have not presented evidence of such confidentiality provisions or their terms. 27 It appears Dr. Venters was personally part of a single site visit at some unknown time 28 where, during a walkthrough, he talked with jail staff and leadership. (See COCHS Best 1 Practices Review at 1; Venters Decl. ¶ 23–24.) Such a limited interaction does not 2 transform his association with the County into a confidential relationship. 3 ii. Confidential Information 4 Even assuming Dr. Venters had a confidential relationship with the County, the 5 County Defendants have failed to point to any confidential information provided to Dr. 6 Venters that is relevant and would prejudice the County Defendants in this action. See 7 Hewlett-Packard, 330 F. Supp. 2d at 1094. The County Defendants have not pointed to 8 any attorney work product or information within the scope of the attorney-client privilege 9 that Dr. Venters was provided. See id. Dr. Venters did not review any medical records or 10 patient-specific information. The best practices review itself makes no mention of the 11 policies or procedures of the San Diego County jail, in fact, it specifically explains 12 COCHS’ engagement with the County did not allow COCHS to determine which 13 procedures and processes the County uses. (See COCHS Best Practices Review at 21.) 14 And whether the best practices review cites NCCHC standards has nothing to do with 15 whether Dr. Venters received confidential information from the County. The County 16 Defendants assert mere access to the facility and the ability to interview staff and leadership 17 amounts to confidential disclosure. That is incorrect. The County Defendants have failed 18 to point to “specific and unambiguous” disclosures to Dr. Venters that would prejudice the 19 County Defendants in this action. See Hewlett-Packard, 330 F. Supp. 2d at 1094. 20 B. Expert Qualification 21 The County Defendants argue Dr. Venters has no foundational basis for his opinions 22 concerning the County’s failing to have policies, practices or training sufficient to address 23 missed medications when his report did not include review of any such policies, practices, 24 or training. (See Doc. 98-1 at 6–7.) The County Defendants also contend that Dr. Venters 25 review of CIRB documents violated the protective order in Greer v. County of San Diego, 26 19-cv-0378-JO-DEB and the California State Auditor’s Report may underlie his opinions 27 as to the County’s procedures, policies, or training. (See id. at 7–10.) The County 28 Defendants contend that because Dr. Venters has not reviewed any specific policies, 1 procedures or trainings, his opinion that the County had inadequate policies, procedures or 2 trainings is speculative and lacks foundation. (See id. at 10.) 3 Plaintiff responds that Dr. Venters’ specialized knowledge and experience provide 4 adequate foundation for his opinions in this case. (See Doc. 112 at 8–10.) Plaintiff 5 contends that Dr. Venters can opine, based on records and the testimony of County 6 employees, on the failure of the County to have policies, procedures, or training to verify 7 that inmates were receiving their medications and/or the de facto custom and practice of 8 the County’s medical staff in failing to ensure proper administration of medications. (See 9 id. at 11–15.) Plaintiff also responds that the only CIRB materials Dr. Venters reviewed 10 for this case were those publicly available in a summary judgment order in Greer and that 11 there was no violation of the protective order in that case. (See id. at 16.) The County 12 Defendants respond that Dr. Venters cannot opine as to mechanisms in place at the jail 13 concerning missed medications because he failed to review any of the jail’s policies, 14 procedures, or training and so his opinions lack foundation. (See Doc. 127 at 3–6.) 15 The parties appear to agree that Dr. Venters has the requisite medical training and 16 education to render opinions on correctional medicine. (See Doc. 112 at 8–11; Doc. 127 17 at 5.) However, the County Defendants contend that Dr. Venters lacks foundational 18 knowledge regarding the County’s policies, procedures, and trainings to reach the opinions 19 he put forth in his expert report. (See id.)2 20 The Court has reviewed Dr. Venters expert report and the portions of Dr. Venters’ 21 deposition that the parties rely on in their Daubert briefing. The County Defendants are 22 correct that Dr. Venters has not reviewed the County’s official policies, procedures, or 23

24 25 2 The County Defendants attempt to distinguish Plaintiff’s use of the word “mechanism” in his Opposition from “procedure” in arguing that there were mechanisms in place to 26 check for missed medications. (See Doc. 127 at 3–4.) However, Dr. Venters’ deposition 27 testimony is focused on an alleged lack of effective policy, procedure, or training evidenced by the County Defendants’ depositions. Plaintiff’s use of the word “mechanism” in his 28 1 training. However, Dr. Venters’ opinions regarding deficiencies in policies, procedures, 2 or training are based on his review of deposition testimony from County employees in this 3 case and inferences drawn therefrom. Such opinions are helpful to the jury in evaluating 4 Plaintiff’s claims that the County had a custom and practice of failing to ensure the proper 5 administration of medication to inmates, regardless of any formal policies, procedures, or 6 training. The fact that Dr. Venters did not review the County’s policies, procedures, or 7 training is more properly addressed on cross-examination. See Primiano, 598 F.3d at 564 8 (“Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, 9 and attention to the burden of proof, not exclusion.”). Similarly, the extent to which Dr. 10 Venters’ opinions are based on his review of publicly available information from the 11 summary judgment order in Greer and the California State Auditor’s Report is more 12 properly addressed on cross-examination. 13 IV. CONCLUSION 14 For the reasons discussed above, the County Defendants’ Motion (Doc. 98) is 15 DENIED. However, the Court cautions Plaintiff that the Court’s ruling does not mean that 16 Dr. Venters can opine on formal policies, procedures, or training that he did not review in 17 preparation of his expert report. 18 IT IS SO ORDERED. 19 DATE: December 1, 2023 20 ____________________________________ 21

HON. RUTH BERMUDEZ MONTENEGRO

22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28