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Rosenthal v. Missouri Dep't of Corr.

United States District Court, W.D. Missouri, Central Division

December 4, 2014

KEVIN ROSENTHAL, Plaintiff,
v.
MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants. DEONTA DUDLEY, Intervenor

For Kevin Rosenthal, Plaintiff: Craig R. Heidemann, LEAD ATTORNEY, Nathan A. Duncan, Douglas, Haun & Heidemann, Bolivar, MO.

For Missouri Department of Corrections, George Lombardi, Ed Davis, James Hurley, Defendants: Jennifer Redel-Reed, LEAD ATTORNEY, MO Attorney General, Jefferson City, MO; Joanna L.W. Trachtenberg, LEAD ATTORNEY, Missouri Attorney General's Office-JC, Jefferson City, MO.

ORDER

Fernando J. Gaitan, Jr., United States District Judge.

Pending before the Court is Defendants' Motion to Exclude Dr. Thomas Horejes as an Expert Witness (Doc. No. 80).

I. Background

Plaintiff filed the pending action on June 11, 2013. Plaintiff and other putative class members are deaf or hard-of-hearing inmates in the custody of the Missouri Department of Corrections (MDOC). Defendants are (1) MDOC, (2) George Lombardi (Director, MDOC), (3) Ed Davis (Superintendent, Ozark Correctional Center), and James Hurley (Superintendent, Northeast Correctional Center) and (5) various John Doe defendants. Plaintiff and intervenor, Deonta Dudley, seek declaratory and injunctive relief, as well as damages, on their own behalf for alleged discrimination by Defendants against deaf and hard-of-hearing inmates in the custody of MDOC. First Amended Complaint, Doc. No. 60, pp. 6-9. They also sought declaratory and injunctive relief on behalf of a putative class; however, this Court recently denied plaintiffs' motion for class certification. See Doc. No. 107.

Defendants move for an order excluding the testimony of Dr. Thomas P. Horejes. Dr. Horejes is an individual who has been deaf since birth (Doc. No. 80, Ex. B, at 1). He is employed at the following: 1) as the " Executive Director of a 501(c)3 non-profit charity in Saint Louis, Missouri whose philosophy is to provide services for deaf/hard-of-hearing, hearing individuals, and the community as a whole to ensure effective communication and cultural awareness. This purpose is accomplished through a meaningful unity of community outreach, training, education, advocacy, media, visual arts, and interpreting, " and 2) as " Assistant Professor of Sociology and Criminology at Gallaudet University where [he has] taught courses that range from Introduction to the Criminal Justice System, Fundamentals of Criminal Justice, Inequality, and similar topics. Gallaudet University is the world's only liberal arts university serving primarily deaf and hard of hearing students." Doc. No. 80, Ex. B, at 1.

Dr. Horejes' written report includes the following information:

* ASL is the language of majority of deaf people in the United States (Doc. No. 80, Ex. B., at 2)
* English and ASL are " two entirely separate whole languages, " and ASL is the first language of some deaf people (Id. at 2)
* Historically, those " who are hearing often determine the accessibility and communication needs for deaf individuals. In the spirit of providing effective and transparent communication, it is the rule of thumb to first ask the deaf individual what would be considered effective communication through auxiliary aids and services. (Id. at 3)
* In some situations, a deaf individual may not want to have an ASL interpreter present (Id. at 3)
* Use of lip-reading, gestures, or written English to communicate with deaf persons have significant limitations (Id. at 5).
* Many prisons require deaf people to wear safety vests when outside, so they can be identified by guards if they fail to cooperate with ...

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