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Green v. Harris County

United States District Court, S.D. Texas, Houston Division

June 26, 2019

KATHRYN GREEN, et al, Plaintiffs,
HARRIS COUNTY, TEXAS, et al, Defendants.



         Pending are Harris County's Motion for Summary Judgment (Doc. No. 296); Defendant Michael James Malloy's Motion for Summary Judgment (Doc. No. 299); Plaintiffs Motion on Spoliation After Jail Inspection (Doc. No. 291); Harris County's Motion regarding Jail Inspection (Doc. No. 292); Defendants' Joint Motions to Exclude Testimony of Plaintiffs' Expert Roger Clark (Doc. No. 294) and to Exclude Portions of Dr. Gregory Moran's Testimony (Doc. No. 301); Plaintiffs' Motion to Strike Reports of Experts as Hearsay (Doc. No. 308); Plaintiffs' Motions to Strike Affidavits of Bryan Pair, Laxman Sunder, and Patrick Dougherty (Doc. Nos. 305, 306, 307); and Plaintiffs' Motion for Leave to File a Response to Objections to MSJ Evidence (Doc. No. 326). The Court has carefully considered all of the motions, responses, replies, evidence in the record, and applicable law, and concludes as follows.

         I. BACKGROUND

         The allegations in the Plaintiffs' Second Amended Complaint were set forth in the background facts of the Court's Memorandum and Order dated August 13, 2018 and need not be repeated at length here. See Doc. No. 245. The relevant facts supported by competent summary judgment evidence are set forth below.

         From the date of his arrest on December 31, 2014 until the day he died on March 24, 2015, Patrick Green ("Patrick") was confined in the Harris County Jail ("Jail").[1] On March 5, 2015, he entered a plea of guilty to a drug charge and was sentenced to two years in the Texas Department of Criminal Justice ("TDCJ").[2] At the time of his death, he was awaiting transport to state prison to serve his sentence for the drug conviction and hoped to be released on some form of parole shortly after arriving at TDCJ.[3]

         Patrick was a "trustee," a low-security-risk inmate who was eligible to have a job in the Jail, and never caused trouble for the Harris County guards or staff.[4] Patrick was housed in the 3C4 dormitory-type cell along with approximately 25 other inmates.[5] Pod C on Level 3 at the Jail consists of four such dormitory-type cells with a Pod Control Center ("PCC" or "picket") in the center of the four cells.[6] The picket has four large windows through which the picket officer on duty may observe the inmates in each of the four dormitory cells.[7] The picket officer must remain in the picket unless another officer comes to relieve that officer because there must be a guard in the picket at all times.[8] Harris County requires PCC personnel to conduct observations of the inmates every thirty minutes and to record those observations on a "pass on" log.[9] The guard on duty is also required to enter each cell three times per shift.[10]

         On March 24, 2015, Defendant Officer Michael James Malloy ("Malloy") began his eight-hour shift at 2:00 p.m. as the sole picket officer for the 3C pod of four cells, including Patrick's 3C4 cell.[11] All of the inmates assigned to Patrick's 3C4 cell worked in the Laundry Room, and their shift that day began shortly after Malloy started his shift in the picket.[12]Sometime between 2:00 p.m. and 2:30 p.m., before the group went to work, Malloy conducted the count[13] while another officer relieved him in the picket.[14] At that time, Patrick approached Malloy and asked to be allowed to stay in from work because he was not feeling well.[15] Malloy gave him permission to stay back from work.[16]

         Malloy then overheard Patrick tell another inmate that he had been throwing up.[17]Patrick did not ask Malloy if he could go to the medical clinic that afternoon, and Malloy did not ask him if he needed to go to the clinic or question him further about his medical condition.[18] Malloy averred that at that time, nothing indicated to him that Patrick had an immediate medical need.[19]

         All of the inmates in 3C4 pod went to work that afternoon except Patrick, who remained resting in his bunk.[20] Around 4:30 p.m., an inmate worker delivered dinner trays to the 3C4 pod.[21] Malloy overheard Patrick tell the worker delivering dinner trays that he did not want his tray but that he was "okay."[22]

         After his cellmates returned from work, Patrick got up from his bunk to get a drink of water and use the toilet.[23] When he passed Inmate Raymond Eisenbach's bunk, he fell, and Eisenbach and other inmates helped him back up.[24] When Patrick came back from the bathroom, he stumbled as he walked and started to fall down a second time.[25] Alarmed, Patrick's cellmates grabbed him as he stumbled and helped him get back in his bunk.[26] At that point, they noticed that he was very pale and pressed the button to alert Malloy in the picket that Patrick needed medical help.[27] Malloy called for help right away.[28]

         Detention Officer Warner Dean Ervin ("Ervin")[29] responded to Malloy's requests for a "rover," or guard who walks the hallways in the Jail.[30] Ervin entered 3C4 cell and checked on Patrick, who was lying face up in his bunk at that time.[31] Ervin asked Patrick to get up to go to the clinic, but Patrick indicated that he was too weak and did not think he could walk there.[32]Ervin then left the cell and went to get Detention Officer Barrow for assistance and told Malloy to call the clinic for a wheelchair.[33] Malloy called the clinic to send up a wheelchair and called the Floor Control Center to notify them that medical was on the way up to 3C4 so that an officer could make sure elevators were available and doors were open so medical staff could make it to the cell easily.[34]

         When Ervin and Barrow returned to the pod, Patrick was facing the wall and was making growling or snoring sounds.[35] Ervin used his boot to kick or shake Patrick and get his attention, but Patrick was not responding.[36] Nurse Williamson-Johnson arrived at the cell around this time with a wheelchair.[37] Williamson-Johnson approached Patrick's bunk with the officers and asked Patrick what was going on, but by that time Patrick was not responding in clear speech.[38]Williamson-Johnson noticed that Patrick appeared to be very sick and determined that it would not be safe to transport Patrick in the wheelchair.[39] She notified Malloy to call the clinic to send a stretcher up, which he did.[40] Williamson-Johnson stated that it was a medical emergency at that point.[41]

         After the stretcher arrived in the pod, detention officers took Patrick to the clinic at the Jail for triage with a team of medical personnel.[42] Williamson-Johnson opened up the medical file at the clinic at 8:11 p.m. after Patrick arrived there on the stretcher.[43] The medical records reflect that Patrick was unresponsive and had a temperature of 99.9 at that time.[44] Dr. Lu evaluated him and called for an ambulance to transport him to Ben Taub Hospital, and the ambulance was dispatched at 8:33 p.m.[45] The ambulance personnel arrived at the clinic at 8:39 p.m., saw Patrick at 8:44 p.m., left the clinic at 9:09 p.m., and arrived at Ben Taub Hospital with Patrick at 9:14 p.m.[46] On arrival at the Emergency Room, his temperature was 100.8;[47] by 10:02 p.m., he had a fever of 101.9.[48] Medical personnel intubated Patrick and started him on broad spectrum antibiotics and fluids.[49] Despite these efforts, he went into cardiac arrest at 11:10 p.m. and died at 11:59 p.m.[50] At that time, doctors at Ben Taub had a broad differential diagnosis of possible causes of Patrick's illness: ingestion of a toxin, drug reaction, meningitis, encephalitis, encephalopathy, sepsis/bacteremia, trauma, or some neurological issue.[51]

         An autopsy later revealed that Patrick died of acute bacterial meningitis, caused by streptococcus sanguinis, a common bacteria found in the mouth but an extremely uncommon cause of meningitis.[52] How Patrick developed this non-contagious, rare form of meningitis from his mouth bacteria, how it traveled to his brain, and how long he had the infection before he died are not known with medical certainty.[53]

         Plaintiffs Kathryn Green as representative of the Estate of Patrick Green, Kathryn and David Green, Patrick's parents, (collectively, "Plaintiffs") sued Harris County and numerous guards and medical personnel in the wake of Patrick's tragic death. On September 26, 2018, the Court dismissed all of the defendants except Malloy, Ervin, and Harris County. (Doc. No. 253). On March 6, 2019, the Court granted Plaintiffs' unopposed motion to dismiss Ervin and the claims regarding sanitation and hygiene in the Jail. (Doc. No. 302).

         Malloy and Harris County, the remaining defendants, move for summary judgment. Malloy contends that he was not deliberately indifferent to Patrick's medical needs and invokes his entitlement to qualified immunity. (Doc. No. 299). Harris County argues that Plaintiffs do not raise a fact issue that there was a constitutional violation, or that a Harris County policy or practice was the moving force of any constitutional violation. (Doc. No. 296). The parties have also filed several evidentiary motions, which the Court considers in turn below.


         A. Plaintiffs' Spoliation Motion for Failure to Preserve Video

         On March 25, 2015, the day after Patrick died, Plaintiffs sent a letter to the Harris County Attorney's Office entitled "Notice of Claim and Demand for Preservation of Evidence." (Doc. No. 251 at 5). Among other things, Plaintiffs requested that Harris County "preserve and maintain all evidence pertaining to any claim or defense related to this incident . . . including statements, photographs, videotapes, audiotapes, surveillance or security tapes or information . . . related to the referenced incident or damages." Id. at 6. Although it appears that Harris County did preserve voluminous written records regarding Patrick's death in custody, including its investigative files and audio files of Patrick's telephone calls, [54] Harris County did not preserve any video surveillance footage in the Jail for the days preceding Patrick's death.

         Plaintiffs moved for sanctions, arguing that the video evidence that has been destroyed was the "best evidence" for their claims against Harris County. (Doc. No. 250). On November 14, 2018, the Court denied the motion without prejudice to the parties filing supplemental motions after completing a jail inspection, because the placement of the cameras would elucidate whether any relevant video ever existed. (Doc. No. 260). The parties conducted the jail inspection on January 22, 2019, which showed the following: (1) Patrick's living area is not covered by a camera;[55] (2) the path from 3C4 to the medical box is not covered by a camera;[56] (3) the camera in 3C would not have recorded Malloy walking into and doing visuals of 3C4;[57]and (4) the picket, hallways, loading dock, and elevators have some camera coverage.[58]

         Plaintiffs initially contended that video of Patrick in his cell would help to show what happened, but the jail inspection confirmed that the video cameras were not aimed to record inside the actual cells where the inmates slept (and where Patrick remained for the afternoon of March 24, 2015 until he was taken to the clinic on a stretcher).[59] Even so, Plaintiffs still contend that Harris County should have known to preserve any video that could possibly have contained video of Patrick or guard movement in the 3C pod, including hallway, elevator, and loading dock video footage. Harris County counters that it concluded that it did not have video responsive to the initial March 2015 preservation letter because the letter did not request video of the hallways, elevators, and loading dock, and because there was no camera that recorded any events inside Patrick's cell or at the clinic.

         Plaintiffs allege that video of the picket, where Malloy sat, would have shown whether he conducted the twice-hourly observations of Patrick as reflected in his logs. Plaintiffs posit that video of the hallways and picket would have captured, inter alia, the following: (1) guards' "reactions" to what they were seeing and whether they walked down the hallway to conduct observations; (2) Patrick walking down the hallway, if he did so within view of the camera; (3) possibly whether Patrick placed anything in the medical box in the hallway; and (4) Patrick being transported to the clinic. They contend that footage of Patrick walking down a hallway could have shown his gait and possible signs of sickness. They argue that time stamps on video showing Ervin arriving at Patrick's cell and Patrick being taken to the clinic would elucidate a timeline of events.

         A party seeking sanctions based on spoliation of evidence must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was "relevant" to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Rimkus Consulting Grp., Inc. v. Cammarata, 688 F.Supp.2d 598, 615-16 (S.D. Tex. 2010). "A party's duty to preserve evidence comes into being when the party has notice that the evidence is relevant to the litigation or should have known that the evidence may be relevant." Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015).

         In the Fifth Circuit, sanctions for failing to preserve evidence are not proper unless there is a showing that the spoliated evidence would have been relevant. Rimkus Consulting Grp., Inc., 688 F.Supp.2d at 615-16 (citing Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 & n. 8 (5th Cir. 2005)). A showing of bad faith is also required. See Condrey, 431 F.3d at 203; King v. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003); United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000) (holding that "'[m]ere negligence is not enough' to warrant an instruction on spoliation"); Russell v. Univ. of Tex. of Permian Basin, 234 Fed.Appx. 195, 208 (5th Cir. 2007) (unpublished op.) (quoting Vick v. Tex. Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975)). Federal law governs whether the district court abuses its discretion in denying sanctions based on spoliation. King, 337 F.3d at 556.

         First, Plaintiffs do not establish a duty to preserve the video in this case. Regarding video inside Patrick's cell or in the clinic, or Malloy's or Ervin's entering 3C4, [60] there were no cameras aimed to record those events, so any claim that Harris County did not preserve that non-existent video fails. See, e.g., Bertrand v. Fischer, No. 09-0076, 2011 WL 6254091, at *4 (W.D. La. Dec. 14, 2011) (holding that there was no duty to preserve, and therefore no spoliation, where the defendant store produced evidence that there was no surveillance video of the aisle in question where the plaintiff fell); Dixon v. Greyhound Lines, Inc., 2014 WL 6087226, at *3 (M.D. La. Nov. 13, 2014) (no duty to preserve arises for evidence that was never created and never existed). Because video footage of Patrick in his cell and at the clinic did not exist, it was objectively reasonable for officials reading and applying the preservation letter to conclude that there was no video footage responsive to the request.[61]

         Regarding the hallway, elevator, and loading dock video for the days preceding Patrick's death, the generic March 25, 2015 preservation letter did not place Harris County officials on notice to preserve such video in case his movements might have been captured incidentally on that video or that their request would include the days preceding his death. As Harris County points out, Patrick did not die in the Jail, and his death was not the result of a use of force or suicide. He died in the hospital from an acute bacterial infection, not because of some affirmative use of force or violent action that might have been captured on videotape. Unlike the situation in the "Vincent Young investigation" relied on by Plaintiffs, Patrick was not in a special cell undergoing close observation for suicide watch such that the hallway movements and observations of the guards would be pertinent to an investigation or a possible claim in a lawsuit.[62]

         Captain Ronny Taylor testified that "[t]he jail does not preserve surveillance footage in the normal course of business unless someone is aware of a particular event, at a particular time, in front of a particular camera, and makes a specific request for that footage."[63] He also stated that he "did not interpret this letter as requiring [Harris County] to preserve any particular video."[64] He testified that he interpreted the March 2015 letter to request footage of the cell in which Patrick was housed and that it did not occur to him to go look for hallway videos or things of that nature.[65]

         While the March 25, 2015 letter may have placed Harris County on notice to preserve video inside Patrick's dorm-like cell on the day he died, if such video ever existed, the letter did not place Harris County on sufficient notice to preserve ancillary video-that would have only incidentally recorded Patrick, if at all-from the hallways, elevators, and loading dock for the week preceding Patrick's death. Therefore, Plaintiffs do not meet their burden to show that Harris County had the duty to preserve the video of the hallways, loading dock, and elevators.

         Second, Plaintiffs do not show bad faith. Even if Harris County had a duty to preserve the specific hallway, elevator, and loading dock videos as Plaintiffs contend, Plaintiffs do not establish that Harris County's failure to preserve that video was done in bad faith rather than negligence or oversight. "Bad faith, in the context of spoliation, generally means destruction for the purpose of hiding adverse evidence." Guzman, 804 F.3d at 713 (finding that defendants did not show bad faith where the plaintiff had surgery that had the effect of masking his injury and arguably "altered evidence" in a personal injury case). Plaintiffs do not show that Harris County's destruction of video footage from March 2015, which occurred as an automatic deletion after a period of time pursuant to the video retention policy, was for the purpose of hiding adverse evidence. Accordingly, the Court finds that Plaintiffs do not show bad faith.

         Finally, Plaintiffs do not show that the video in question would have yielded relevant evidence to support their case. Harris County does not dispute that it transported Patrick, who was unresponsive at the time, through the hallway to the elevator in a stretcher on March 24, 2015, arriving at approximately 8:10 p.m. to the clinic, and EMS and medical records confirm the timeline of the arrival of the ambulance at the clinic and Patrick's arrival at Ben Taub Hospital. Further, the EMS records reflect that Patrick was handcuffed to the stretcher after being combative.[66] Thus, video footage of the hallways, elevator, and loading dock would add little to the remaining claims for deliberate indifference to medical needs and would be cumulative of the EMS and medical records.

         Likewise, although Plaintiffs maintain that video footage would have revealed the "reactions" of a guard in the picket, such "reactions" would not be competent evidence of what a guard actually saw or observed. At best, such video would be fodder for conjecture about what a guard was observing or thinking at any point in time. In this regard, it is highly speculative that such video could show, with any degree of reliability for a jury, whether Malloy conducted the twice-hourly observations through the picket window as he has testified under oath that he conducted.[67] Therefore, Plaintiffs do not show that such video footage would have yielded any relevant, reliable evidence that could aid a jury, much less the "best evidence" of what occurred on or around March 24, 2015.

         Accordingly, because Plaintiffs do not show a duty to preserve, bad faith, or that the video would have yielded relevant evidence, Plaintiffs' motion for sanctions based on spoliation must be DENIED.

         B. Motions to Exclude Experts

         Defendants move to exclude Roger Clark's expert reports and certain portions of Dr. Gregory Moran's expert reports. Rule 702 governs the admissibility of expert testimony and ensures that "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702. Rule 702 allows expert testimony if the "specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Id.

         Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), established a flexible framework to determine whether an expert's testimony complies with Rule 702 both in terms of relevance and reliability. Essentially, a court must ensure that an expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

         Experts may not merely rest on their credentials and give a subjective opinion on relevant issues. General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). "Without more than credentials and a subjective opinion, an expert's testimony that 'it is so' is not admissible." Viterbo v. Dow Chemical Co., 826 F.2d 420, 424 (5th Cir. 1987). An expert must furnish "some objective, independent validation of [his] methodology[; t]he expert's assurances that he has utilized generally accepted [principles] is insufficient." Brown v. Illinois Cent. R. Co., 705 F.3d 531, 536 (5th Cir. 2013) (internal citations omitted). In addition, "allowing an expert to give his opinion on the legal conclusions to be drawn from the evidence both invades the court's province and is irrelevant." Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).

         1. Roger Clark

         In their response to Harris County's motion for summary judgment, Plaintiffs cite Roger Clark's opinions only for the following assertion:

This policy [of not disciplining officers like Malloy] violates the constitutional rights afforded to all inmates because, where an inmate is seriously ill and a detention officer or other staff does not obtain medical care, the inmate suffers severe, and in this case, fatal, consequences.[68]

         Regardless of whether Roger Clark is qualified to opine on training standards in a correctional setting, Clark acknowledged that he is not a medical expert, testified that he was not going to offer medical-related opinions in this case, and, when asked about different responses of a guard based on "serious" versus "non-serious" illnesses, admitted that a guard's response to a non-serious illness was "not in [his] calculus."[69] The Court concludes that Plaintiffs have not established that Clark is qualified to opine on medical issues. In addition, his opinions in this regard lack reliable methodology, are not relevant, and constitute legal opinions. Therefore, they do not constitute proper expert testimony. See Brown, 705 F.3d at 536 (affirming the exclusion of expert testimony where the expert failed to articulate a credible methodology to sustain his conclusions); Owen, 698 F.2d at 240 (holding that an expert may not render opinions regarding legal conclusions to be drawn from the evidence). Accordingly, Clark's opinions supporting Plaintiffs' assertion, set forth above, is excluded, and Harris County's motion is GRANTED in this regard.

         Likewise, in their response to Malloy's motion for summary judgment, Plaintiffs cite Clark's testimony only once, to support the contention that any requests Patrick placed in the medical box on Monday, March 23, 2015, would not have been picked up until twenty-four hours later.[70] This evidence is not relevant to whether Malloy was aware of facts from which an inference could be drawn that Patrick faced a substantial risk of serious harm. Assuming, without deciding, that Patrick had placed requests in the medical box, there is no evidence that Malloy ever saw or knew that Patrick had placed any requests in the medical box or asked to go to the clinic in relation to his illness. The uncontroverted testimony of Nurse Williamson-Johnson indicates that the Medical Box is locked and that staff at the clinic, not the picket guard, has the key.[71] Because Clark's testimony regarding how long it would take for a request placed in the medical box to reach the clinic is not relevant to the claim against Malloy, it is excluded from consideration on summary judgment. See Daubert, 509 U.S. at 590-91 (holding that expert testimony must be relevant and reliable).[72] Accordingly, Malloy's motion is GRANTED regarding Clark's opinion cited in Plaintiffs' response to his motion.

         As to the other issues in Defendants' motions regarding Roger Clark, the Court declines to rule on them at this time because Plaintiffs do not rely on or cite to Roger Clark's other opinions in their responses to the motions for summary judgment.[73] Therefore, Defendants' motions in that regard will be DENIED as MOOT.

         2. Dr. Gregory Moran

         Defendants move to exclude portions of Dr. Moran's expert report, specifically, his opinions regarding (1) the standards of Correctional Medicine or whether those standards were met;[74] (2) policies and procedures at the Jail; (3) training at the Jail; (4) actions of policymakers at the Jail; (5) actions of medical personnel at the Jail; (6) the 2009 U.S. Department of Justice Letter; (7) ratio of physicians at the Jail; and (8) "risk of contagion" of disease at the Jail. Defendants contend that although Moran may be competent to opine about meningitis and its proper treatment, he is not an expert in jail medicine or the administration of a jail.

         In his deposition, Dr. Moran asserted that he is an infectious disease and emergency room expert but acknowledged that he is not an expert on police practices, custody medicine, jail triage procedures, Texas Commission on Law Enforcement regulations, or the ratio of physicians to inmates at the Jail relative to other jail systems.[75] He also testified that the standard of care for training officers regarding meningitis in a correctional setting would not be in his "realm of expertise."[76] Therefore, Defendants' motion to exclude the portions of Moran's opinions that deal with the administration of a jail, including the 2009 U.S. Department of Justice Letter, training officers in a correctional setting, and physician ratios at the Jail, is GRANTED and those opinions will be excluded and will not be considered as competent expert testimony in this case.

         C. Plaintiffs' Motions to Strike the Affidavits of Pair and Sunder

         The Court has not relied on this evidence in making its determination on the pending summary judgment motions.[77] Accordingly, Plaintiffs' Motions to Strike the Affidavits of Pair and Sunder are DENIED as MOOT.

         D. Plaintiffs' Motion to Strike the Affidavit of Major Dougherty

         Plaintiffs move to strike Major Dougherty's affidavit, contending that he was not properly disclosed. Defendants counter that Major Dougherty is the substitution for their corporate representative, Major Mike Smith, that they timely disclosed on October 18, 2016 and again on February 27, 2017. Dougherty was disclosed in the Second Amended Disclosures before the end of the discovery period on January 30, 2019 and by affidavit on December 12, 2018.[78]

         In Dougherty's December 12, 2018 Affidavit, he discloses that he is the Major in charge of Harris County Justice Housing Bureau for the Jail.[79] The record reflects that the Plaintiffs did not object to the inclusion of this affidavit or Dougherty as a witness based on the failure to disclose him in previous Rule 26 disclosure statements.[80] Plaintiffs therefore cannot claim surprise regarding Dougherty as a witness in charge of Harris County Justice Housing Bureau for the Jail. See, e.g., Bitterroot Holdings, L.L.C. v. MTGLQ Inv'rs, L.P., 648 Fed.Appx. 414, 419 (5th Cir. 2016) (holding that there was no surprise regarding an undisclosed witness because her affidavit was previously submitted, without objection, in support of an earlier motion).

         Even if Defendants were late in disclosing Major Dougherty as Plaintiffs contend, the Court concludes that his affidavit should be admitted as competent summary judgment evidence. Rule 37 provides, in pertinent part: "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 evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). "[W]here a district court allows non-disclosed evidence to be used, [the Fifth Circuit] look[s] to four factors in determining whether the district court was within its discretion in permitting the introduction of the evidence: '(1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's failure to disclose.'" Bitterroot Holdings, L.L.C, 648 Fed.Appx. at 419 (quoting Tex. A & M Research Found, v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003)).

         Regarding the importance of the evidence, Major Dougherty's report clarifies that the twice-hourly observations by the picket officers are conducted, many times, through the picket windows because a picket officer must not leave the picket unmanned. Dougherty's report is also helpful because it provides background and explains the practices of the staff and Harris County, such as: the number of inmates processed through the Jail; whether the Jail complies with the Texas Commission on Jail Standards and passes United States Marshal Service inspections; and whether the Jail's policies and procedures assured Patrick access to medical care. Because such background and evidence regarding the twice-hourly observations and the standards at the Jail are relevant and helpful to the resolution of this case, this evidence is important. The first factor favors admission.

         In addition, Plaintiffs do not show prejudice in admitting Major Dougherty's testimony. Plaintiffs have been on notice since October 18, 2016, when Major Mike Smith and several others were disclosed as persons with "knowledge about the policies and procedures of the Harris County Sheriffs Office, "[81] that Defendants would likely present testimony regarding policies and procedures at the Harris County Jail. Plaintiffs do not allege or show that they noticed Major Mike Smith's deposition or any other corporate representative who would testify regarding Jail policies and procedures under Rule 30(b)(6), and, therefore, do not show prejudice that Smith's successor, Major Dougherty, submitted the testimony as the Major in charge of Harris County Justice Housing Bureau for the Jail regarding policies and procedures at the Jail. This factor favors admission of Major Dougherty's affidavit.

         Finally, counsel for Harris County explains that "[he] only learned about Major Dougherty's role overseeing the 701 Jail in December, and he was promptly disclosed on December 12 by affidavit in Doc. 264-3."[82] Counsel further contends that Dougherty's predecessor, Major Mike Smith, was disclosed in Harris County's Initial and First Amended Disclosures, and in Malloy's Initial Disclosures, that were served on October 18, 2016, February 27, 2017, and September 28, 2018, respectively.[83] Defendants tender a valid reason for the failure to disclose Major Dougherty prior to December 2018, and this factor also favors admission of the evidence.

         Considering the importance of the evidence, the lack of prejudice to Plaintiffs, and the explanation for the late disclosure, the Court concludes that Major Dougherty's affidavit should be admitted as competent summary judgment evidence. Accordingly, Plaintiffs' motion to strike Major Dougherty's affidavit is DENIED.[84]

         E. Plaintiffs' Motion to Strike Malloy's Expert Reports as Hearsay

         Plaintiffs move to strike several of Malloy's expert reports because Malloy failed to include the required verification when he attached the reports to his motion. Although Plaintiffs are correct that unverified expert reports are inadmissible as hearsay, see Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 1000 (5th Cir. 2001), Malloy points out that Harris County timely filed these identical expert reports with the proper verification, and now incorporates those into his motion by reference. Malloy contends that he should be allowed to cure the defect and that these reports are competent summary judgment evidence because they are properly in the summary judgment record.

         Plaintiffs argue that Malloy's attempt to cure was not timely and assert that the court should not allow him to cure this defect. As for timeliness, Plaintiffs were presented with verified copies of all of these reports in connection with Harris County's motion for summary judgment; they had actual notice of the verifications and were served with the expert reports in admissible form in the record on March 4, 2019. Thus, they cannot (and do not) contend that they were surprised, or even harmed, by this oversight. The Court concludes that there was no prejudice or unfair surprise to Plaintiffs by Malloy's initial omission of the verifications and, accordingly, will permit Malloy to incorporate the properly verified reports by reference. See Fed. R. Civ. P. 56(e); see also Exxon Mobil Corp. v. United States, 108 F.Supp.3d 486, 530 n. 33 (S.D. Tex. 2015) (allowing experts to submit declarations incorporating by reference their earlier-filed, unsworn reports); Molina v. Collin Cnty., Texas, No. 4:17-CV-00017, 2017 WL 4812453, at *l (E.D. Tex. Oct. 25, 2017) (holding that when a party attaches unsworn expert reports as summary judgment evidence, such deficiencies are curable by the filing of the experts' sworn declarations) (citing Greene v. Toyota Motor Corp., No. 3:11 -cv-207-N, 2014 WL 12575716, at *3 n.5 (N.D. Tex. June 2, 2014); Straus v. DVC Worldwide, Inc., 484 F.Supp.2d 620, 634 (S.D. Tex. 2007)); Allstate Ins. Co. v. Helmsco Inc., No. 6:15-CV-114, 2016 WL 3223325, at *2 (W.D. Tex. Feb. 16, 2016) (allowing a litigant to cure the lack-of-verification-defect in the expert reports). Accordingly, Plaintiffs' motion to strike (Doc. No. 308) is DENIED as MOOT.

         F. Unilateral Depositions

         Plaintiffs conducted several "Examinations Under Oath" of witnesses who were Patrick's former cellmates. Defendants object to these as "unilateral depositions" because they received no notice of these depositions, were not present at these depositions, and, concomitantly, were not permitted to cross-examine or object to Plaintiffs' leading questions.

         The Court has carefully reviewed the witness statements and concludes that they do not raise a genuine issue of material fact regarding whether either Malloy or Harris County is entitled to summary judgment, as set forth below. ...

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