D.C. No. 5:13-CV-00108-F, W.D. Okla.
Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.
ORDER AND JUDGMENT [*]
MARY BECK BRISCOE, CIRCUIT JUDGE
John Doe appeals from the judgment entered on a jury verdict in favor of the Board of County Commissioners of Payne County, Oklahoma (the Board) on his claim for discrimination under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-33 (ADA). Doe argues the district court erred in (1) excluding his proposed expert witness testimony, and (2) instructing the jury that the decision to move him from general to segregated housing had to be motivated solely by the fact that he is HIV positive. Doe argues that either error standing alone entitles him to a new trial. We have jurisdiction under 28 U.S.C. § 1291. Finding no error, we affirm.
On February 23, 2012, Doe was arrested on charges of obstruction and assault with a deadly weapon on a police officer. He was transported to the local municipal lockup. The next day, February 24, Doe was sent to the Payne County Detention Center (the Detention Center). During the routine booking process the facility learned that Doe was HIV positive. Initially, Doe was assigned to a general housing unit where inmates are permitted to freely socialize during the day and also have unrestricted access to showers, telephones and television. General-housing detainees are also permitted to attend group religious services.
Later that same day, Annette Anderson, a Detention Center sergeant, decided Doe should be moved to a segregation pod, where he remained for several weeks until his release on April 11. In this pod, Doe did not enjoy all of the benefits, programs or activities afforded to general-housing detainees. For example, Doe was limited to one hour a day outside of his cell to shower and use the telephone. As a result, he could not move freely within the pod to mingle with other inmates. Nor could he attend group religious services.
In a contemporaneous record made at the time of the transfer, Anderson wrote that the reason Doe was transferred was "due to his HIV statutes [sic]." Aplt. App., Vol. 3 at 689. She explained later that she did not elaborate because of her mistaken belief that there was not "enough room in our [computer] field of [sic] putting all the reasons in the cell movement log." Id., Vol. 14 at 3284. Anderson testified that absent this mistaken belief, she would have expanded the entry to say she knew Doe "personally" and "due to the nature of his charges" she worried about him getting into a fight and exposing other inmates to "bodily fluids or blood." Id. at 3285.
Prior to trial the Board moved to exclude the testimony of Doe's proposed corrections expert, Emmitt Sparkman. Following a Daubert hearing, the district court ruled that Mr. Sparkman would not be allowed to testify in Doe's case-in-chief. The court noted that the central issue for the jury was whether Doe "was or was not segregated solely because of his HIV status." Id., Vol. 13 at 2947. Because Mr. Sparkman's opinions concerned what the court characterized as "best practices, " it concluded the "proposed expert testimony has, at best, . . . only a slim toe hold on relevance, or as the Supreme Court calls it 'fit, '. . . [and] if [Mr. Sparkman] is a candidate to give expert testimony at all, [it] would be . . . to do so only as a rebuttal witness depending on what we hear from the defendant." Id. at 2960-61.
Later in the trial, the district court overruled Doe's objection to the jury instruction and verdict form that required him to prove that his HIV status was the sole motivating factor in transferring him from general to segregated housing. In so ruling, the court relied on Fitzgerald v. Corrections Corporation of America, 403 F.3d 1134, 1144 (10th Cir. 2005), which holds that "[u]nder . . . the ADA . . . [the plaintiff] is obligated to show that he was otherwise qualified for the benefits he sought and that he was denied those solely by reason of disability" (internal quotation marks omitted). See Aplt. App., Vol. 14 at 3319. The jury answered "No" when asked whether the "exclusion, denial of benefits, or discrimination was solely by reason of [Doe's] disability." Id., Vol. 13 at 2912.
On appeal, "we review de novo the question of whether the district court applied the proper standard and actually performed its gatekeeper role in the first instance. We then review the trial court's actual application of the standard in deciding whether to admit or exclude expert testimony for abuse of discretion." Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). As such, "we will not disturb the district court's ruling unless it is arbitrary, capricious, whimsical or manifestly unreasonable, or when we are convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id. (internal quotation marks omitted).
Rule 702(a) of the Federal Rules of Evidence imposes a duty on the district court to ensure that the proposed expert testimony is not only reliable, but relevant. "A witness who is qualified as an expert . . . may testify in the form of an opinion or otherwise if:  the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact ...