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Tribe v. United States

United States District Court, D. South Dakota, Central Division

July 9, 2019

ROSEBUD SIOUX TRIBE, a federally recognized Indian tribe, and its individual members, Plaintiff,
UNITED STATES OF AMERICA; DEPARTMENT OF HEALTH AND HUMAN SERVICES, an executive department of the United States; THOMAS E. PRICE, Secretary of Health and Human Services; INDIAN HEALTH SERVICE, an executive agency of the United States; MICHAEL D. WEAKHEE, Acting Director of Indian Health Service; JAMES DRIVING HAWK, Acting Director of the Great Plains Area Indian Health Service, [1] Defendants.


         The Rosebud Sioux Tribe (the Tribe) filed a Complaint against the United States of America, the Department of Health and Human Services (HHS) and its Secretary, the Indian Health Service (IHS) and its Acting Director, and the Acting Director of the Great Plains Area of IHS (collectively the Government), seeking declaratory and injunctive relief due to the allegedly inadequate health care provided by IHS to tribal members. Doc. 1. The Government now files a motion to exclude the Plaintiffs' expert report (the Warne Report) and testimony of Dr. Donald Warne pursuant to Federal Rule of Civil Procedure 7 and Federal Rules of Evidence 401 and 702. Doc. 66. The Tribe opposes the motion. Doc. 69. For the reasons stated below, the Government's motion to exclude the Warne report is denied.

         I. Background

         On April 28, 2016, the Tribe filed this suit, an action for declaratory and injunctive relief, with four counts. Doc. 1. Counts I and II of the Tribe's Complaint are based on a provision of the Indian Health Care Improvement Act (IHCIA), 25 U.S.C. § 1631(b)(1), which requires a one-year notice to Congress before any IHS hospital, facility, or portion of such can be closed, in order to evaluate the impact of the closure. Doc. 1 at ¶¶ 45-59. Count I alleges a violation of the IHCIA directly, while Count II seeks judicial relief under the Administrative Procedures Act, 5 U.S.C. § 702, for the alleged violation of the IHCIA. Doc. 1 at ¶¶ 45-59. Count III alleges violations of treaty rights, other statutory obligations, and the trust responsibility obliging the Government to provide health care services to the Tribe's members. Doc. 1 at ¶¶ 60-66. Count IV alleges violations of equal protection and due process under the Fifth Amendment of the United States Constitution stemming from the Rosebud IHS Hospital's emergency department closure. Doc. 1 at ¶¶ 67-77. The Complaint seeks various declaratory and injunctive relief, as well as costs, fees, and other relief deemed proper. Doc. 1 at 21-23.

         This Court previously granted the Government's motion to dismiss Counts I and II because the four-month closure of the Rosebud IHS emergency department was in fact temporary and thus not actionable under IHCIA. Doc. 36, This Court also granted dismissal of Count IV of the Complaint because the Tribe failed to state a viable claim for denial of equal protection and due process. Doc. 36. This Court, however, denied the motion as to Count III. Doc. 36. Count III claims,

The federal government has a specific, special trust duty, pursuant to the Snyder Act, the IHCIA, the Treaty of Fort Laramie, and federal common law, to provide health care services to the Tribe and its members and to ensure that health care services provided to the Tribe and its members do not fall below the highest possible standards of professional care.

Doc. 1 at ¶61. Alleging that the Government has breached this trust duty, the Tribe seeks declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §2201. Doc. 1 at ¶¶64-65. The Tribe also seeks "a mandatory injunction requiring IHS to comply with its trust duties to the Tribe, protect the Tribe's entitlement to healthcare services, and take sufficient measures to ensure that health services are provided to members of the Tribe to permit the health status of Indians to be raised to the highest possible level." Doc. 1 at ¶ 66. This Court analyzed Count III at some length, reviewed applicable case law, and concluded that the existence of some duty to the Tribe and the nature of the Tribe's allegations were sufficient to state a claim. Doc. 36 at 15-22.

         The Government now seeks to exclude Dr. Warne's expert opinions from use at trial. Doc. 66 at 1. The Government argues that the Warne Report does not identify a specific treaty duty that the Government has failed to perform and "does not proffer admissible evidence as to the Plaintiffs' claim of causation." Doc. 66 at 1. Much of the Government's argument reads like an argument for summary judgment on Count III, Doc. 67, which the Government subsequently has filed, Doc. 80.

         II. Legal Standards

         The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. Under Rule 702, the trial judge acts as a "gatekeeper" screening evidence for relevance and reliability. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 597 (1993); United States v. Montgomery. 635 F.3d 1074, 1089-90 (8th Cir. 2011). Under Rule 702, a "witness who is qualified as an expert by knowledge, skill, experience, training, or education" may give testimony at trial in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the 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 of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. "Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony." Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir. 1991). "The rule clearly is one of admissibility rather than exclusion." Sappington v. Skyjack, Inc., 512 F.3d 440, 448 (8th Cir. 2008) (citation omitted). "The exclusion of an expert's opinion is proper only if it is so fundamentally unsupported that it can offer no assistance to the jury." Wood v. ...

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