Estate of Kelroy Newman et al v. Board of County Commissioners of the County of Montezuma, Colorado et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 22-cv-01763-PAB-KAS
ESTATE OF KELROY NEWMAN, by and through putative personal representative,
Bryanne Watts-Lucero, and
J.W., a minor child, by and through friend and mother, Elisa Wilson,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF MONTEZUMA,
COLORADO,
SHERIFF STEVEN NOWLIN, individually and in his official capacity,
ZACHARY SUMMERS, individually,
SOUTHWEST HEALTH SYSTEM, INC, d/b/a/ Southwest Memorial Hospital, and
RANDY GENE DAVIDSON, MD, individually,
Defendants.
ORDER
This matter comes before the Court on Defendant Randy Gene Davidson, M.D.’s
Motion to Strike Plaintiffs’ Expert Endorsement of Nizam Peerwani, MDPA Pursuant to
F.R.E. 702 and F.R.E. 403 [Docket No. 108], Defendant SWMH’s Motion to Preclude
Irrelevant and Unreliable Expert Opinions Pursuant to F.R.E. 702 [Docket No. 109], and
Defendant Randy Gene Davidson, M.D.’s Motion to Exclude Unqualified Standard of
Care Opinions Pursuant to F.R.E. 702 [Docket No. 110].
I. 	BACKGROUND
This case concerns the death of Kelroy Newman on July 18, 2021 while Mr.
Newman was in pretrial detention at the Montezuma County Detention Center (“MCDC”)
in Colorado. Docket No. 108 at 2; Docket No. 120 at 2; Docket No. 109 at 2. This
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action is brought by Mr. Newman’s estate and his minor child, J.W., against the Board
of County Commissioners of Montezuma County, Colorado (“Board of County
Commissioners”), Montezuma County Sheriff Steven Nowlin, Montezuma County
Sheriff’s Deputy Zachary Summers, Randy Gene Davidson, M.D. (“Dr. Davidson”), and
Southwest Medical System, Inc., doing business as Southwest Memorial Hospital (“the
Hospital”).1 Docket No. 154 at 4-6, ¶¶ 14-18, 20-24.
Mr. Newman was arrested by the Cortez Police Department on July 17, 2021.
Docket No. 120 at 2; see also Docket No. 181 at 3. After his arrest, Mr. Newman was
taken to the Hospital to be medically cleared for incarceration at MCDC because he was
intoxicated and had facial injuries. Docket No. 120 at 2; see also Docket No. 109 at 2;
Docket No. 181 at 3. At the Hospital, Dr. Davidson, an emergency room physician,
conducted a medical screening of Mr. Newman and cleared him for incarceration.
Docket No. 109 at 2; Docket No. 110 at 2; Docket No. 120 at 2. Mr. Newman died at
MCDC the following day. Docket No. 108 at 2; Docket No. 120 at 2.
Plaintiffs’ Third Amended Complaint2 (“the complaint”) asserts two claims against
Dr. Davidson: claim five— deliberate indifference in violation of the Fourteenth
1 Defendant Andrew Daulton was dismissed from this action. Docket No. 142.
2 The motions to exclude expert opinions filed by Dr. Davidson and the Hospital
are directed at plaintiffs’ First Amended Complaint, see Docket No. 109 at 7; Docket No.
110 at 2, which brought one claim against the Hospital and Dr. Davidson, namely, claim
three, alleging negligence in operation of a hospital and medical negligence causing
wrongful death. Docket No. 41 at 39-41, ¶¶ 255-66. Plaintiffs have amended their
complaint twice since Dr. Davidson and the Hospital filed the motions to exclude expert
opinions. Docket Nos. 149, 154. However, in the briefing regarding plaintiffs’ motion to
amend the complaint, no party argued that the proposed amendments to plaintiffs’
complaint would impact the pending motions to exclude expert testimony, see Docket
Nos. 112, 128, 134, and the parties have not indicated that the motions to exclude
expert testimony have been superseded because plaintiffs amended their complaint.
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Amendment; and claim six— medical negligence causing wrongful death. Docket No.
154 at 54-58, ¶¶ 328-355. The complaint asserts three claims against the Hospital:
claim four— deliberate indifference in violation of the Fourteenth Amendment, brought
pursuant to 42 U.S.C. § 1983; claim six— medical negligence causing wrongful death;
and claim seven— failure to provide an appropriate medical screening examination and
to provide required stabilization care and treatment in violation of the Emergency
Medical Treatment and Labor Act (“EMTALA”),3 42 U.S.C. § 1395dd. Id. at 51-54, 56-
61, ¶¶ 312-27, 344-72. On March 27, 2023, the Court granted summary judgment in
favor of the Hospital on claim six. Docket No. 181 at 15.
Dr. Davidson filed a motion to strike plaintiffs’ endorsement of Nizam Peerwani,
M.D., Docket No. 108, and a motion to exclude emergency medicine standard of care
opinions by Dr. Peerwani, Craig Felty, RN, Lori Roscoe, DNP,4 and David A. Caruso on
the grounds that they are unqualified to make them.5 Docket No. 110. The Hospital
filed a motion to exclude opinions of Mr. Felty, Ms. Roscoe, and Mr. Caruso on the
basis that they are irrelevant and unreliable. Docket No. 109.
3 EMTALA requires every hospital with an emergency department to “provide for
an appropriate medical screening examination” of any individual who comes to the
emergency department if “a request is made on the individual’s behalf for examination
or treatment for a medical condition.” 42 U.S.C. § 1395dd(a). If the hospital determines
that the individual has an emergency medical condition, the hospital “must provide— (A)
either within the staff and facilities available at the hospital, for such further medical
examination and such treatment as may be required to stabilize the medical condition,
or (B) for transfer of the individual to another medical facility.” 42 U.S.C.
§ 1395dd(b)(1).
4 Doctor of Nursing Practice.
5 Dr. Davidson’s motion to exclude unqualified standard of care opinions asks the
Court to exclude an opinion by Russell B. Kerbel, M.D., Docket No. 110 at 8-9, but Dr.
Davidson’s reply withdraws this request. Docket No. 131 at 2 n.1.
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II. 	DR. DAVIDSON’S MOTION TO STRIKE ENDORSEMENT OF DR. PEERWANI
Dr. Davidson moves to strike the endorsement of Dr. Peerwani as a rebuttal
expert. Docket No. 108 at 2. Dr. Davidson bases his motion on three grounds: (1)
plaintiffs’ endorsement of Dr. Peerwani violates the scheduling order; (2) Dr. Peerwani’s
testimony would violate Federal Rule of Evidence 403 because it would be duplicative
of other expert testimony proffered by plaintiffs; and (3) plaintiffs’ endorsement of Dr.
Peerwani was untimely. Id. at 5-8.
A. Scheduling Order Violation
The scheduling order entered by Magistrate Judge Kristen Mix on December 2,
2022 limits each party group6 to “one retained expert per area of expertise.” Docket No.
43 at 17. Plaintiffs endorsed Russel B. Kerbel, M.D., a hospitalist and internist, to opine
on Mr. Newman’s cause of death. Docket No. 108-1 at 5; Docket No. 120 at 3. Dr.
Davidson endorsed Robert C. Bux, M.D., a forensic pathologist; Bryan S. Judge, M.D.,
a toxicologist and emergency medicine physician; and Adam Z. Barkin, M.D., an
emergency physician, to opine on Mr. Newman’s cause of death. Docket No. 108-3 at
2-4; Docket No. 120-3 at 3, 10-14; Docket No. 120-4 at 1, 3, 5. The Hospital endorsed
Noah T. Kaufman, M.D., an emergency medicine physician, to opine on Mr. Newman’s
cause of death. Docket No. 120-5 at 16. The Board of County Commissioners and
Sheriff Nowlin endorsed Susan M. Tiona, M.D., a family medicine practitioner, and
Stephen Thornton, M.D., an emergency physician, toxicologist, and addiction medicine
physician, to opine on Mr. Newman’s cause of death. Docket No. 120-8 at 2, 12-13,
6 The scheduling order indicates that plaintiffs are a “party group.” Docket No. 43
at 17.
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¶¶ 32-34; Docket No. 120-7 at 1, 5-7, ¶¶ 2-4. Plaintiffs endorsed Dr. Peerwani, a
forensic pathologist, as a rebuttal expert to opine on Mr. Newman’s cause of death.
Docket No. 108-7 at 1.
Dr. Davidson claims that, in the scheduling order, plaintiffs indicated that they
would endorse a forensic pathologist to opine on the cause of Mr. Newman’s death, but
instead endorsed Dr. Kerbel, a hospitalist and internist. Docket No. 108 at 5-6. After
Dr. Davidson endorsed Dr. Bux to offer opinions on the cause of death, plaintiffs
submitted a supplemental report from Dr. Kerbel rebutting Dr. Bux’s opinion, Docket No.
108-6, which Dr. Davidson claims closed “the loop on causation.” Docket No. 108 at 6.
Finally, Dr. Davidson argues Dr. Peerwani’s report is duplicative of Dr. Kerbel’s report.
Id. at 5-7. Thus, Dr. Davidson appears to argue that, given plaintiffs’ endorsement of
Dr. Kerbel and filing of a supplemental report by Dr. Kerbel in response to Dr. Bux’s
report, plaintiffs did not need to endorse Dr. Peerwani as a rebuttal expert. However,
Dr. Davidson does not explain how the series of actions by plaintiffs that he describes—
plaintiffs’ initial indication that they would endorse a forensic pathologist, plaintiffs’
endorsement of Dr. Kerbel, the submission of Dr. Kerbel’s supplemental report, and the
endorsement of Dr. Peerwani as a rebuttal expert—violates the scheduling order.
The Court rejects Dr. Davidson’s argument that plaintiffs’ endorsement of Dr.
Peerwani as a rebuttal expert violates the scheduling order. First, the fact that plaintiffs
at one time anticipated endorsing a forensic pathologist, but instead endorsed an
internist and hospitalist, does not violate the scheduling order. As plaintiffs note, they
merely needed to disclose an expert whose testimony would make out a prima facie
case that alcohol withdrawal caused Mr. Newman’s death. Docket No. 120 at 6.
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Endorsing Dr. Kerbel satisfied this requirement. Second, Dr. Davidson confuses Judge
Mix’s order limiting each party group to one expert per area of expertise with a limitation
of one expert per subject matter. As an internist and hospitalist, Dr. Kerbel has a
different area of expertise than Dr. Peerwani, who is a forensic pathologist. See Docket
No. 108-1 at 5; Docket No. 108-7 at 1. Thus, plaintiffs’ endorsement of Dr. Peerwani
does not violate the portion of the scheduling order limiting plaintiffs to one expert per
area of expertise. Third, Dr. Davidson endorsed Dr. Bux, a forensic pathologist, to
opine on the cause of Mr. Newman’s death. Docket No. 108-3 at 2-4. It is appropriate
and permissible for plaintiffs to endorse their own forensic pathologist to rebut Dr. Bux’s
opinion. The fact that Dr. Kerbel and Dr. Peerwani may share the opinion that Mr.
Newman died of alcohol withdrawal does not equate with their opinions being
duplicative since each has a different area of expertise. Accordingly, the Court finds
that plaintiffs did not violate the scheduling order by endorsing Dr. Peerwani as a
rebuttal expert.
B. Cumulativeness of Dr. Peerwani’s Testimony
Dr. Davidson argues that the Court should “strike Dr. Peerwani’s report as
cumulative” pursuant to Federal Rule of Evidence 403. Docket No. 108 at 8. Under
Rule 403, a court “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . needlessly presenting cumulative evidence.” Fed. R.
Evid. 403. Dr. Davidson claims that, because both Dr. Peerwani and Dr. Kerbel “are
endorsed to opine that Mr. Newman likely exhibited signs of alcohol withdrawal while
incarcerated, that his death was due to acute alcohol withdrawal, and that the autopsy
report authored by the Montezuma County coroner was inaccurate and/or incomplete,”
Dr. Peerwani’s opinions are cumulative of Dr. Kerbel’s opinions. Docket No. 108 at 6-7.
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According to Dr. Davidson, “Plaintiffs were required to endorse an expert to meet their
burden of proof on causation and chose Dr. Kerbel to meet this burden. They cannot be
allowed an additional duplicative expert.” Id. at 7. However, as discussed above, the
scheduling order limited plaintiffs to endorsing one expert per area of expertise, not one
expert per subject matter. See Docket No. 43 at 17. Dr. Davidson cites no authority
indicating that, under Rule 403, a party may not endorse experts with different areas of
expertise to testify on the same subject matter, such as the cause of death, particularly
where one expert was endorsed as a rebuttal expert. The Court finds that Dr.
Davidson’s argument that Dr. Peerwani’s opinions will be cumulative of those offered by
Dr. Kerbel is not a sufficient basis to strike the endorsement of Dr. Peerwani.
C. Timeliness of Disclosure of Dr. Peerwani’s Report
On June 12, 2023, Judge Mix set an August 4, 2023 deadline to disclose rebuttal
experts. Docket No. 98 at 2. On August 1, 2023, plaintiffs’ counsel sent an email to Dr.
Davidson’s counsel stating that plaintiffs would file their expert rebuttal disclosures on
Friday, August 4, 2023, with the exception of Dr. Peerwani’s report, which plaintiffs
would disclose by the end of the day on Monday, August 7, 2023. Docket No. 108-4.
Plaintiffs disclosed Dr. Peerwani’s CV, testimony history, and fee schedule on August 4,
2023, and disclosed Dr. Peerwani’s expert report on August 7, 2023. Docket No. 108 at
5; Docket No. 120 at 13. Plaintiffs did not file a motion to extend the deadline to
disclose rebuttal experts.
Dr. Davidson argues that the “violation of the Court’s schedule should result in
Dr. Peerwani’s exclusion at trial.” Docket No. 108 at 8. Federal Rule of Civil Procedure
37 states that, if “a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness to supply
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evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The Tenth Circuit outlined four factors
in Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.
1999), that courts should consider in determining whether a Rule 26 violation is
substantially justified or harmless: “(1) the prejudice or surprise to the party against
whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the
extent to which introducing such testimony would disrupt the trial; and (4) the moving
party's bad faith or willfulness.” Woodworker’s Supply, 170 F.3d at 993. The Tenth
Circuit has held that the “decision to exclude evidence is a drastic sanction.” Summers
v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997) (citation omitted).
Dr. Davidson fails to address the Woodworkers Supply factors. Dr. Davidson
“acknowledges that the one-day delay did not cause prejudice,” Docket No. 132 at 6,
and does not argue that the delay was willful or in bad faith.7 Furthermore, trial has not
yet been set in this case. Therefore, the Court finds that the Woodworker’s Supply
factors weigh against excluding Dr. Peerwani’s testimony. See Woodworker’s Supply,
170 F.3d at 993; see also McAdoo v. ITT Educ. Servs., Inc., No. 10-cv-01727-LTB-KLM,
2011 WL 2198568, at *2 n.2 (D. Colo. June 6, 2011) (holding that, although the
significance of Fed. R. Civ. P. 26 errors is ordinarily assessed using the Woodworker’s
7 Dr. Davidson notes that, on June 12, 2023, the Court warned the parties that
they may not informally agree to the amendment of deadlines in a scheduling order after
plaintiffs attempted to do so. Docket No. 108 at 3; see Docket No. 98 at 1. As a result,
Dr. Davidson characterizes plaintiffs’ delay in disclosing Dr. Peerwani’s report as a
“repeated violation of the Court’s schedule.” Docket No. 108 at 8. However, Dr.
Davidson stops short of arguing that the untimely disclosure of the report was willful or
in bad faith. Given Dr. Davidson’s delay in sending the autopsy slides to Dr. Peerwani,
this is understandable.
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Supply factors, “Defendant's lack of prejudice clearly weighs against striking the expert
and obviates the necessity to balance the remaining factors”). The Court finds that the
one-day delay in disclosing Dr. Peerwani’s report is not a sufficient basis to strike the
endorsement of Dr. Peerwani. See McAdoo, 2011 WL 2198568, at *2 (declining to
strike expert where defendant received plaintiff’s expert disclosures one business day
after they were due and defendant did not assert that prejudice resulted from the delay).
The Court will deny Dr. Davidson’s motion to strike the endorsement of Dr. Peerwani.
III. 	DR. DAVIDSON’S MOTION TO EXCLUDE UNQUALIFIED STANDARD OF
CARE OPINIONS OF DR. PEERWANI, MR. FELTY, MS. ROSCOE, AND MR.
CARUSO
Dr. Davidson moves to exclude “emergency medicine standard of care” opinions
by Dr. Peerwani, Mr. Felty, Ms. Roscoe, and Mr. Caruso. Docket No. 110 at 1-2.
Plaintiffs bring a negligence claim against Dr. Davidson under Colorado state law.
Docket No. 154 at 56-58, ¶¶ 344-355. One element of this claim is that Dr. Davidson
breached the standard of care when treating Mr. Newman. See Carbajal v. St. Anthony
Cent. Hosp., No. 12-cv-02257-REB-KLM, 2015 WL 3765895, at *9 (D. Colo. Apr. 7,
2015) (citing Settle v. Basinger, 411 P.3d 717, 726 (Colo. App. 2013)), recommendation
adopted, 2015 WL 3896902 (D. Colo. Jun. 23, 2015) (stating that the elements of a
medical negligence claim are “that the defendant owed a legal duty to the plaintiff, that
the defendant breached that duty, and that the breach of duty caused the harm that
resulted in the alleged damages”). Dr. Davidson argues that, under Colorado law,8 only
a licensed physician who is familiar with the emergency medicine standard of care may
offer opinions regarding the standard of care applicable to emergency medicine
8 Plaintiffs do not dispute that Colo. Rev. Stat. § 13-64-401 applies to this case.
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physicians and whether Dr. Davidson met that standard of care when treating Mr.
Newman. Docket No. 110 at 4, 10-12. Therefore, Dr. Davidson argues that Mr. Felty,
Ms. Roscoe, and Mr. Caruso may not offer emergency medicine standard of care
opinions because they are not physicians and that Dr. Peerwani may not offer such an
opinion because he “has no familiarity with the emergency medicine standard of care.”
Id. at 10-12.
Dr. Davidson styles the motion to exclude “emergency medicine standard of
care” opinions by Dr. Peerwani, Mr. Felty, Ms. Roscoe, and Mr. Caruso as a motion
pursuant to Federal Rule of Evidence 702, see id. at 1, but the admissibility of the
opinions that Dr. Davidson challenges does not turn on whether the opinions of Dr.
Peerwani, Mr. Felty, Ms. Roscoe, and Mr. Caruso satisfy Rule 702. While Federal Rule
of Evidence 702 governs the admissibility of expert testimony in diversity cases, Sims v.
Great Am. Life Ins. Co., 469 F.3d 870, 883 (10th Cir. 2006), a witness’s competency to
testify regarding a substantive issue, such as the medical standard of care, is dictated
by state law. See McDowell v. Brown, 392 F.3d 1283, 1295 (11th Cir. 2004); see also
Fed. R. Evid. 601 (“in a civil case, state law governs the witness’s competency
regarding a claim or defense for which state law supplies the rule of decision.”). Under
Colorado law:
No person shall be qualified to testify as an expert witness concerning
issues of negligence in any medical malpractice action or proceeding
against a physician unless he not only is a licensed physician but can
demonstrate by competent evidence that, as a result of training, education,
knowledge, and experience in the evaluation, diagnosis, and treatment of
the disease or injury which is the subject matter of the action or proceeding
against 	the 	physician 	defendant, 	he 	was 	substantially 	familiar 	with
applicable standards of care and practice as they relate to the act or
omission which is the subject of the claim on the date of the incident. The
court shall not permit an expert in one medical subspecialty to testify against
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a physician in another medical subspecialty unless, in addition to such a
showing of substantial familiarity, there is a showing that the standards of
care and practice in the two fields are similar.
Colo. Rev. Stat. § 13-64-401.
A. Opinions of Dr. Peerwani
Dr. Davidson argues that, although Dr. Peerwani is a physician, he may not
opine on the emergency medicine standard of care because he does not have
familiarity with the emergency medicine standard of care. Docket No. 110 at 12. Dr.
Davidson seeks to exclude three opinions of Dr. Peerwani on this basis:
• 	[T]here were no baseline studies performed by Dr. Davidson.
• 	Dr. Davidson did not perform antemortem blood alcohol test or and drug
screens; hence, there was no determination in the ER whether NEWMAN
was in ethanol absorptive with rising blood alcohol level or whether he was
in the degradation phase.
• 	I agree with Dr. Kerbel that to a reasonable degree of medical certainty,
NEWMAN would not have died had he been maintained in the hospital for
monitored detox or if the deputies at [MCDC] had been trained to evaluate
for alcohol withdrawal or detox, or if they brought NEWMAN back at [the
Hospital] for treatment when he asked on the morning of 07-18-2021.
Medically competent evaluation would more likely than not have revealed
clinical signs of acute alcohol withdrawal and allowed for treatment. I
disagree with Dr. Judge [sic] testimony that it would not have mattered if
he were admitted to the hospital and Dr. Bux’s opinion that there is not
enough information to form an opinion as to the cause of death.
Id. at 9, 12; see Docket No. 108-7 at 4, 10, 13, ¶ 6.
Plaintiffs argue that Dr. Peerwani’s first and second “opinions,” that Dr. Davidson
did not perform baseline studies or antemortem blood alcohol test or drug screens, are
not standard of care opinions, but rather are “merely factual recitations of the reading of
the record.” Docket No. 122-1 at 7. Dr. Davidson responds that “the statements about
what testing should have been performed in the emergency department [and] what that
testing would have showed . . . convey clear criticisms of Dr. Davidson’s conduct as an
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emergency medicine physician.” Docket No. 131 at 3. The Court agrees with plaintiffs.
Dr. Peerwani’s statements concerning baseline studies, drug screens, and an
antemortem blood alcohol test are factual statements based on Dr. Peerwani’s reading
of the records of Mr. Newman’s hospital visit, not opinions concerning the emergency
medicine standard of care. Therefore, the Court will not exclude Dr. Peerwani’s first
and second statements since they are not opinions and not statements about the
standard of care.
Plaintiffs argue that Dr. Peerwani’s third opinion, that Mr. Newman would not
have died had he been maintained in the Hospital, had the deputies at MCDC been
trained to evaluate for alcohol withdrawal or detox, or had he been brought back to the
Hospital for treatment, “is also not a standard of care opinion; it instead relates to
causation.” Docket No. 122-1 at 7. Plaintiffs state that Dr. Peerwani “does not opine
that Dr. Davidson should have maintained him at the hospital, or that the deputies
should have brought him back, which would be standard of care opinions. Instead, he
opines that Mr. Newman would not have died had he been in a position to receive
medical care for alcohol withdrawal before his death.” Id. at 7-8. Dr. Davidson argues
that Dr. Peerwani’s statements about “whether the emergency physician’s evaluation
was ‘medically competent’ . . . convey clear criticisms of Dr. Davidson’s conduct as an
emergency medicine physician.” Docket No. 131 at 3. The Court agrees. Although Dr.
Peerwani does not opine on whether Dr. Davidson’s evaluation was medically
competent, that is implied. Moreover, Dr. Peerwani, who is not an emergency
physician, is not qualified to opine on what a “medically competent evaluation,” see
Docket No. 108-7 at 13, ¶ 6, consists of. Therefore, other than the sentence about a
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“medically competent evaluation,” the Court finds that Dr. Peerwani’s third opinion is not
an emergency medicine standard of care opinion and Dr. Peerwani is not required to be
qualified to opine on the emergency medicine standard of care in order to testify about
it. The Court will not exclude Dr. Peerwani’s third opinion except as noted.
B. Opinions of Mr. Felty
Mr. Felty is a registered nurse and an expert in emergency room nursing and
hospital administration. Docket No. 124-1 at 4; Docket No. 110-1 at 1. Plaintiffs
retained Mr. Felty to “review the actions, policies, procedures, and practices of [the
Hospital], by and through its clinical and administrative staff, as well as the conduct of
Nurse Gaddis, to evaluate the care rendered to Kelroy Newman and the systems
utilized by the hospital to clear intoxicated inmates for incarceration.” Docket No. 110-1
at 1.
Dr. Davidson argues that Mr. Felty is not qualified to opine on the emergency
medicine standard of care because he is not a physician. Docket No. 110 at 4-5, 10-11.
Mr. Felty’s report states that “the standard of care was breached by hospital leadership
and nursing staff” at the Hospital and enumerates the ways in which he believes the
standard of care was breached. Docket No. 110-1 at 5-6. Dr. Davidson asks the Court
to exclude four of Mr. Felty’s opinions:
• 	Failure to provide Kelroy Newman with a comprehensive Medical
Screening exam, including nursing assessment, to rule out an emergency
medical condition by not assessing and appropriately treating his alcohol
intake status, head and facial trauma, and history of substance abuse.
This is evidenced by Drs. Fowler and Davidson’s testimony that it is never
their practice to screen for BAC or alcohol withdrawal or consider that
when clearing for intoxication for release to jail. Considering that this is
the practice of two of [the Hospital’s] ED Physicians, it is reasonable to
opine that these practices are accepted and consistent with the screening
and EMTALA practices of [the Hospital] related to incarcerated patients
being medically cleared for jail.
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• 	Such practice is evidence of a conscious disregard of the risk and safety
of this subset of patients.
• 	Failure to conduct a comprehensive medical screening exam as required
by EMTALA placed Kelroy Newman in a dangerous situation when he
was discharged to jail without treatment for his alcohol intoxication, head
and facial trauma, and lack of assessment for potential alcohol
withdrawal.
• 	Failure to provide comprehensive individually tailored discharge
instructions to Kelroy Newman and his correctional care givers regarding
his conditions and injuries that would need to be assessed and monitored
while he was incarcerated. These instructions should have included
information to watch for in Mr. Newman related to his acute alcohol
intoxication, head and facial trauma, and high potential for alcohol
withdrawal . . .
Docket No. 110 at 5; see Docket No. 110-1 at 5-6.
Dr. Davidson argues that Mr. Felty’s opinions regarding Dr. Davidson’s pre-
incarceration medical screening of Mr. Newman must be excluded because “only a
physician can offer standard of care opinions against a licensed physician” and Mr.
Felty therefore “lack[s] the required credentials.” Docket No. 110 at 10-11. Plaintiffs do
not claim that Mr. Felty is qualified to opine on the standard of care for an emergency
room doctor.9 Instead, they argue that Mr. Felty’s opinions are offered against the
Hospital, not Dr. Davidson.10 Docket No. 122-1 at 11. Plaintiffs argue that “Medical
Screening Exams are part of a hospital’s obligation under EMTALA” and, although Dr.
Davidson “performed the medical portion of the exam,” the Hospital nevertheless “has a
duty to set procedures and protocols to ensure an adequate screening exam is
conducted.” Id. at 12-13; see 42 U.S.C. § 1395dd(a) (“In the case of a hospital that has
9 Plaintiffs state that they endorsed a different expert, Dr. Becker, as an
emergency room doctor expert to opine on the violation of the emergency medicine
standard of care by Dr. Davidson. Docket No. 122-1 at 13.
10 In his trial testimony, Mr. Felty should make this limitation on his testimony
clear.
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a hospital emergency department, if any individual . . . comes to the emergency
department and a request is made on the individual's behalf for examination or
treatment for a medical condition, the hospital must provide for an appropriate medical
screening examination. . . to determine whether or not an emergency medical condition
. . . exists.”).
Dr. Davidson responds that “a review of [Mr. Felty’s] opinions demonstrates that
he is actually criticizing Dr. Davidson’s medical clearance examination.” Docket No.
131 at 4. While he concedes that “Mr. Felty can criticize hospital policies and can testify
that there was an EMTALA breach,” Dr. Davidson maintains that Mr. Felty “cannot opine
on the ultimate question of whether Dr. Davidson performed a reasonable medical
examination or whether he should have acted differently under the circumstances.” Id.
at 5.
Mr. Felty’s first opinion states that the Hospital leadership and nursing staff failed
to “provide Kelroy Newman with a comprehensive Medical Screening exam, including
nursing assessment,” which Mr. Felty believes is “accepted and consistent with the
screening and EMTALA practices of [the Hospital] related to incarcerated patients being
medically cleared for jail,” as evidenced by testimony from two physicians, including Dr.
Davidson. Docket No. 110-1 at 5. Thus, Mr. Felty’s first opinion discusses the
Hospital’s practice. Mr. Felty cites the testimony of Dr. Davidson in order to establish
the Hospital’s practice, see id., but this citation is a fact, not an opinion regarding Dr.
Davidson’s standard of care. Although Mr. Felty states that the examination that Mr.
Newman received at the Hospital was not comprehensive, this criticism does not
convert the opinion into an opinion that Dr. Davidson breached the standard of care in
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his treatment of Mr. Newman in the emergency room. Rather, Mr. Felty’s opinion is that
Mr. Newman was not provided a “comprehensive Medical Screening exam” and that,
based on physician testimony, failing to screen patients for BAC or alcohol withdrawal
was accepted and consistent with the Hospital’s practices. This opinion goes to
plaintiffs’ EMTALA and § 1983 claims against the Hospital, not plaintiffs’ negligence
claim against Dr. Davidson.11 Because the opinion does not offer an opinion regarding
Dr. Davidson’s standard of care and because Dr. Davidson concedes that Mr. Felty is
qualified to opine on hospital policy, the Court will not exclude this opinion.
Mr. Felty’s second opinion states that “[s]uch practice is evidence of a conscious
disregard of the risk and safety of this subset of patients.” Id. “Such practice” refers to
the Hospital’s practice not to provide incarcerated patients with a comprehensive
medical screening exam. The Court will not exclude Mr. Felty’s second opinion for the
same reason it declined to exclude the first one—Mr. Felty’s opinions about screening
examinations performed at the Hospital are offered against the Hospital, not Dr.
Davidson.
Mr. Felty’s third opinion, describing an alleged failure to “conduct a
comprehensive medical screening exam as required by EMTALA,” id., is also an opinion
offered against the Hospital, not Dr. Davidson, since Mr. Felty opines that EMTALA
requires hospitals to provide medical screening exams. See 42 U.S.C. § 1395dd(a).
The Court will decline to exclude this opinion.
11 This interpretation is supported by Mr. Felty’s capitalization of “Medical
Screening exam.” See Docket No. 110-1 at 5. Earlier in the report, Mr. Felty defined
“Medical Screening Exam” by describing the assessments that hospitals are required to
offer emergency room patients under EMTALA. See id. at 4 n.3 (quoting an “EMTALA
Quick Sheet” produced by the Healthcare Compliance Association).
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Mr. Felty’s fourth opinion concerns the failure to “provide comprehensive
individually tailored discharge instructions to Kelroy Newman and his correctional care
givers.” Docket No. 110-1 at 6. Like the other three opinions, Mr. Felty describes this
failure in the context of what hospital leadership and nursing staff at the Hospital were
required to do, not in terms of how Dr. Davidson breached his standard of care. Id. at 5.
Therefore, the Court will decline to exclude this opinion.
C. Opinions of Ms. Roscoe
Ms. Roscoe is an Advanced Practice Registered Nurse and a certified Adult
Nurse Practitioner with experience in correctional healthcare. Docket No. 110-4 at 1.
Plaintiffs retained Ms. Roscoe to render opinions regarding the care and treatment of
Mr. Newman while he was incarcerated at MCDC. Id.
Dr. Davidson argues that Ms. Roscoe is not qualified to opine on the emergency
medicine standard of care, but is nevertheless “endorsed to offer the following opinions
regarding or implicating Dr. Davidson’s pre-incarceration medical screening and medical
causation.” Docket No. 110 at 5-7, 10-11. Dr. Davidson asks the Court to exclude
three12 opinions of Ms. Roscoe:
• 	Dr. Davidson didn’t think the jail employed any doctors or mid-level providers
at that time. He didn’t think the jail had a medical unit or a detox center and
he knew that [the Hospital] was where the jail brought people who needed
care, including medical clearance for acceptance into the Detection Center,
for the incarcerated individuals there. Thus, the nurses and providers at [the
Hospital] had responsibility for the safety of Mr. Newman, and all the
incarcerated persons at the [MCDC]. At a minimum, this included developing
a treatment plan that considered the current and potential needs of the
patient.13
12 Dr. Davidson’s motion seeks to exclude five opinions of Ms. Roscoe. Docket
No. 110 at 6-7. However, plaintiffs have withdrawn two of these opinions. Id. at 6 nn. 2-
3. 13 Plaintiffs have withdrawn the last sentence of this opinion. Docket No. 110 at 7
n.4; Docket No. 124-1 at 11 n.8. The Court has omitted the withdrawn sentence.
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• 	If a provider had been called regarding Mr. Newman’s ongoing and worsening
signs and symptoms, more likely than not he would have been sent to the
emergency department for further testing, diagnosis, and treatment.
• 	While the County has an arrangement to have initial clearances and orders
done at the hospital, in 2021 the hospital was treating those as cursory and
not providing the county with the information it needed to safely house
intoxicated inmates without medical staff on the nights and weekends. The
practice of having no meaningful assessment of intoxicated incarcerated
persons for their risk of withdrawal deviated substantially from the applicable
standard of care and put the lives and safety of alcohol dependent
incarcerated individuals at serious risk of harm.
Id. at 6-7; see Docket No. 110-4 at 6-7, 10-11.
Like Mr. Felty, Ms. Roscoe is not a licensed physician. Dr. Davidson argues that
Ms. Roscoe’s opinions must be excluded because she is not a physician and is
unqualified to offer standard of care opinions against a physician. Docket No. 110 at
10-11. Plaintiffs respond that Ms. Roscoe “is not offered here as a standard of care
expert against Dr. Davidson. Rather, her testimony is offered in correctional medicine
and concerns what type of intake screening and treatment planning must be done to
manage inmates at the beginning of their incarceration, including what type of
evaluation and monitoring must be done related to intoxication and withdrawal.” Docket
No. 122-1 at 8.
The initial portion of Ms. Roscoe’s first opinion states that “Dr. Davidson didn’t
think the jail employed any doctors or mid-level providers at that time. He didn’t think
the jail had a medical unit or a detox center and he knew that [the Hospital] was where
the jail brought people who needed care, including medical clearance for acceptance
into the Detection Center, for the incarcerated individuals there.” Docket No. 110-4 at 6-
7. Plaintiffs claim that this is a factual recitation, which characterization Dr. Davidson
does not contest. The second portion of this opinion states that the “providers at [the
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Hospital] had responsibility for the safety of Mr. Newman, and all the incarcerated
persons at the [MCDC]. At a minimum, this included developing a treatment plan that
considered the current and potential needs of the patient.” Id. Plaintiffs argue that this
opinion “concern[s] what medical clearances for incarceration (which can be done on
site at jails or in hospitals) must include in order to safely house inmates in a jail,” not
the emergency medicine standard of care. Docket No. 122-1 at 9. Dr. Davidson
responds that the “fact that non-physicians may perform medical clearance
examinations in other situations is irrelevant because the examination in this case was
performed by an emergency medicine physician.” Docket No. 131 at 3-4. The Court
finds that Ms. Roscoe’s opinion that “providers” at the Hospital were responsible for
developing a treatment plan for Mr. Newman is an opinion on the standard of care
required of Dr. Davidson when he treated Mr. Newman. The Court will exclude this
opinion, as it relates to providers such as Dr. Davidson, because Ms. Roscoe is not a
physician and is therefore unqualified to provide this testimony under Colorado law.
See Colo. Rev. Stat. § 13-64-401.
Plaintiffs argue that Ms. Roscoe’s second opinion should not be excluded
because the opinion “concerns MCDC deputies’ failure to contact a provider regarding
Mr. Newman’s worsening signs and symptoms” and “does not relate to emergency
medicine or Dr. Davidson in any way.” Docket No. 122-1 at 10. The Court agrees. Ms.
Roscoe’s opinion that, “[i]f a provider had been called regarding Mr. Newman’s ongoing
and worsening signs and symptoms, more likely than not he would have been sent to
the emergency department,” Docket No. 110-4 at 10, is an opinion about what would
have happened if MCDC authorities had contacted a medical provider on the morning
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that Mr. Newman died, not an opinion as to the emergency medicine standard of care.14
Therefore, the Court will not exclude this opinion.
Plaintiffs argue that Ms. Roscoe’s third opinion is “aimed at the County’s
unconstitutional practice of having no in-house medical care, no in-house ability to plan
for weekend monitoring of acute conditions such as withdrawal, and having not obtained
from the hospital a treatment plan for inmates at risk from evolving conditions, about
which NP Roscoe is clearly qualified to render opinions.” Docket No. 122-1 at 9.
However, Ms. Roscoe opines that the Hospital treated initial clearances as “cursory”
and that it did not “provid[e] the county with the information it needed,” and that there
was “no meaningful assessment of intoxicated incarcerated persons,” but does not
opine that Board of County Commissioners knew or should have known about these
alleged deficiencies. See Docket No. 110-4 at 10. Dr. Davidson argues that “Ms.
Roscoe cannot comment on Dr. Davidson’s examination of Mr. Newman and allowing
the opinion that there was ‘no meaningful assessment’ of Mr. Newman is therefore
improper.” Docket No. 131 at 4. It is not clear from Ms. Roscoe’s report, and plaintiffs
do not explain, whether Ms. Roscoe’s opinion that the “practice of having no meaningful
assessment of intoxicated incarcerated persons for their risk of withdrawal deviated
substantially from the applicable standard of care” refers to the standard of care of
physicians conducting clearances at the Hospital. See Docket No. 110-4 at 10.
However, when read in context, it appears that Ms. Roscoe’s opinion that “the practice
of having no meaningful assessment of intoxicated incarcerated persons for their risk of
withdrawal deviated substantially from the applicable standard of care” is an opinion that
14 Ms. Roscoe should make that time period clear in her testimony.
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the persons, including Dr. Davidson, conducting the assessments of intoxicated
incarcerated individuals deviated from the emergency medicine standard of care. The
Court will therefore exclude this opinion on the basis that Ms. Roscoe is not a physician
and is therefore unqualified to provide this testimony under Colorado law. See Colo.
Rev. Stat. § 13-64-401.
D. Opinions of Mr. Caruso
Mr. Caruso is a consultant concerning correctional and jail issues. Docket No.
110-6 at 2, ¶ 1. Plaintiffs state that he is an “expert in correctional practices and jail
administration.” Docket No. 122-1 at 4. Mr. Caruso does not claim to have medical
training. Dr. Davidson argues that Mr. Caruso is not qualified to opine on the
emergency medicine standard of care and causation. Docket No. 110 at 7-8, 10-11.
Dr. Davidson asks the Court to exclude two15 opinions of Mr. Caruso:
• 	Hospital staff failed to provide any documentation for further care for Mr.
Newman by jail staff or fail [sic] medical staff upon his return to [MCDC].
• 	It is my professional opinion . . . that the [MCDC] has entered into an agreement
or understanding with the local hospital for clearances and treatment, but allows
the hospital to “clear” inmates in a conclusory manner without sending any of the
necessary recommendations to the jail, including frequency of checks,
medications, and patient specific signs and symptoms to watch for which was an
especially dangerous practice when combined with the lack of medical staff,
training, and equipment at the jail on nights and weekends.
Id. at 8; see Docket No. 110-6 at 10, 15, ¶¶ 44, 70.
Dr. Davidson argues that, because only physicians may offer standard of care
opinions against other physicians, Mr. Caruso’s opinions regarding Dr. Davidson’s pre-
incarceration medical screening of Mr. Newman must be excluded. Docket No. 110 at
15 Dr. Davidson’s motion seeks to exclude three opinions of Mr. Caruso. Docket
No. 110 at 7-8. However, plaintiffs have withdrawn one of these opinions. Id. at 8 n.5.
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10-11. Dr. Davidson further argues that “Mr. Caruso’s statements that these
examinations are performed in a ‘conclusory’ manner and that ‘necessary
recommendations’ are not provided to the jail directly implicate the emergency medicine
standard of care.” Docket No. 131 at 2. Plaintiffs respond that Mr. Caruso does not
offer standard of care opinions about emergency room physicians. Docket No. 122-1 at
4. They claim that Mr. Caruso “properly gives opinions about medical clearances for
incarceration and the duty of the County to obtain adequate clearances and instructions
in order to safely manage and house intoxicated inmates.” Id. at 5.
The first opinion of Mr. Caruso is not an expert opinion, but a factual recitation.
The Court will not exclude it, provided that it is relevant to one of his opinions. As to the
second opinion, the Court finds that Mr. Caruso can property testify about the existence
of an agreement between the Hospital and MCDC regarding clearances, but the
remainder of his opinion exceeds his qualifications under Rule 702 based on his lack of
medical training. See Fed. R. Evid. 702 (allowing expert testimony by a witness who is
“qualified as an expert by knowledge, skill, experience, training, or education”); Roe v.
FCA US LLC, 42 F.4th 1175, 1180 (10th Cir. 2022) (holding that the Court has “an
important gatekeeping function with regard to the admissibility of expert opinions,” which
includes determining whether experts are qualified under Rule 702). Therefore, such
opinions will be excluded.
IV. 	THE HOSPITAL’S MOTION TO EXCLUDE OPINIONS OF MR. FELTY, MS.
ROSCOE, AND MR. CARUSO
A. The Hospital’s Arguments Concerning Negligence Claim
The Hospital argues that the expert opinions of Mr. Felty, Ms. Roscoe, and Mr.
Caruso are irrelevant and unreliable insofar as those opinions are contrary to the
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corporate practice of medicine doctrine. Docket No. 109 at 7-8. The Hospital claims
that, because the corporate practice of medicine shields hospitals from vicarious liability
for the negligent acts of their physician employees, see Kellner v. Schultz, 937 F. Supp.
2d 1319, 1326 (D. Colo. 2013) (applying Colorado law), the expert opinions “criticizing
the hospital as related to Dr. Davidson’s medical screening exam are irrelevant and
unreliable.” Docket No. 109 at 7. On March 27, 2023, the Court granted summary
judgment in favor of the Hospital on plaintiffs’ state law negligence claim. Docket No.
181 at 15. Therefore, the Hospital’s argument that the expert opinions of Mr. Felty, Ms.
Roscoe, and Mr. Caruso are irrelevant and unreliable because the Hospital is shielded
from vicarious liability for Dr. Davidson’s negligence is moot.
The Hospital asks the Court to exclude the opinions of Mr. Caruso on the basis
that he is unqualified to opine on the hospital or nursing standard of care, which renders
his opinions on this subject unreliable and irrelevant to plaintiffs’ negligence claim.
Docket No. 109 at 9-10. Because the Court granted summary judgment in the
Hospital’s favor on plaintiffs’ state law negligence claim, Docket No. 181 at 15, this
argument is also moot.
The Hospital argues that the Court should exclude expert opinions of Mr. Felty,
Ms. Roscoe, and Mr. Caruso that nurses practice medicine because such opinions are
contrary to the Medical Practice Act, Colo. Rev. Stat. § 12-240-107. Docket No. 109 at
8-9. Because the conduct of nurses is relevant to plaintiffs’ remaining claims against
the Hospital under § 1983 and EMTALA, see Docket No. 154 at 51-54, 58-61, ¶¶ 312-
327, 356-372, this argument is not moot. The Court will discuss below the Hospital’s
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argument concerning the Medical Practice Act as it pertains to the opinions of Mr. Felty,
Ms. Roscoe, and Mr. Caruso.
B. The Hospital’s Arguments Concerning the Medical Practice Act
The Hospital claims that Mr. Felty, Ms. Roscoe, and Mr. Caruso are “endorsed to
offer opinions that nurses practice medicine which is contrary to the Medical Practice
[A]ct.” Docket No. 109 at 3-5. The only portion of the Medical Practice Act cited by the
Hospital, sub-section (1)(a), states that the “practice of medicine” means:
Holding out one’s self to the public within this state as being able to
diagnose, treat, prescribe for, palliate, or prevent any human disease;
ailment; pain; injury; deformity; physical condition; or behavioral, mental
health, or substance use disorder, whether by the use of drugs, surgery,
manipulation, electricity, telemedicine, the interpretation of tests, including
primary diagnosis of pathology specimens, images, or photographs, or
any physical, mechanical, or other means whatsoever.
Colo. Rev. Stat. § 12-240-107(1)(a). The Hospital identifies multiple opinions of Mr.
Felty, Ms. Roscoe, and Mr. Caruso that it argues should be excluded, see Docket No.
109 at 3-5, but it does not explain why those opinions are contrary to sub-section (1)(a)
of the Medical Practice Act. Instead, the Hospital merely claims that, “[s]ince the
Medical Practice Act prohibits registered nurses from practicing medicine the expert
opinions of Nurse Felty, Nurse Practitioner Roscoe and David Caruso to the contrary
are irrelevant and unreliable.” Id. at 9. It is not sufficient for the Hospital to identify
opinions it wishes the Court to exclude and cite a sub-section of the Medical Practice
Act without explaining why those opinions contravene the cited sub-section of the
statute. See Elide Fire USA, Corp. v. Auto Fire Guard, LLC, No. 21-cv-00943-WJM-
KLM, 2022 WL 18777076, at *3 (D. Colo. Nov. 17, 2022) (holding that a court “is not
required to consider arguments inadequately presented”) (citing Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007)); United States v. Wooten, 377 F.3d 1134, 1145
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(10th Cir. 2004) (“The court will not consider . . . issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation.”) (citation
omitted); Ensey v. Ozzie’s Pipeline Padder, Inc., 2010 WL 11523525, at *2 n.3 (D.N.M.
Apr. 29, 2010) (“While it is certainly the Court’s job to research carefully the legal issues
properly presented by the parties, it is not the Court’s function to do counsel’s work for
them”); Flores v. Astrue, 246 F. App’x 540, 543 (10th Cir. 2007) (unpublished) (declining
to reach the merits of an argument when the party failed to cite any authority and
“expect[ed] the court to do its research”). The Court will deny the Hospital’s motion.
V. 	CONCLUSION
Therefore, it is
ORDERED that Defendant Randy Gene Davidson, M.D.’s Motion to Strike
Plaintiffs’ Expert Endorsement of Nizam Peerwani, MDPA Pursuant to F.R.E. 702 and
F.R.E. 403 [Docket No. 108] is DENIED. It is further
ORDERED that Defendant SWMH’s Motion to Preclude Irrelevant and Unreliable
Expert Opinions Pursuant to F.R.E. 702 [Docket No. 109] is DENIED. It is further
ORDERED that Defendant Randy Gene Davidson, M.D.’s Motion to Exclude
Unqualified Standard of Care Opinions Pursuant to F.R.E. 702 [Docket No. 110] is
GRANTED in part and DENIED in part.
DATED August 28, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
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