Hon. R. David Proctor · U.S. District Court for the Northern District of Alabama
=== Civil Administrative Procedures Manual for CM/ECF ===
CIVIL CASES Administrative Procedures FOR FILING, SIGNING, AND VERIFYING PLEADINGS AND DOCUMENTS IN THE DISTRICT COURT UNDER THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA ADMINISTRATIVE PROCEDURES FOR FILING, SIGNING, AND VERIFYING PLEADINGS AND DOCUMENTS IN THE DISTRICT COURT UNDER THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM IN CIVIL CASES TABLE OF CONTENTS I. THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM…. ....................1 A. AUTHORIZATION ....................................................................................................1 B. DEFINITIONS AND INSTRUCTIONS .....................................................................1 C. TECHNICAL SPECIFICATIONS..............................................................................2 D. SYSTEM AVAILABILITY ........................................................................................3 E. SELECTION OF CASES ............................................................................................3 F. REGISTRATION ........................................................................................................4 G. LOGIN and PASSWORD ...........................................................................................5 II. ELECTRONIC FILING AND SERVICE OF DOCUMENTS ..........................................6 FILING ......................................................................................................................6 A. SERVICE ...................................................................................................................9 B. SIGNATURES AND AFFIDAVITS .........................................................................10 C. D. FEES PAYABLE TO THE CLERK..........................................................................11 E. ORDERS ....................................................................................................................11 TITLE OF DOCKET ENTRIES ................................................................................11 F. G. CORRECTING DOCKET ENTRIES .....................................................................12 TECHNICAL FAILURES .........................................................................................12 H. PRIVACY ..................................................................................................................13 I. III. CONVENTIONAL FILING OF DOCUMENTS ................................................................14 A. DOCUMENTS TO BE FILED UNDER SEAL ........................................................14 PRO SE LITIGANTS ................................................................................................14 B. C. SOCIAL SECURITY AND 28 U.S.C. § 2254 CASES .............................................14 D. COPY REQUIREMENT FOR OVERSIZE DOCUMENTS ....................................15 RETENTION OF ORIGINALS OF DOCUMENTS REQUIRING SCANNING ....16 E. SERVICE OF CONVENTIONAL FILINGS ............................................................16 F. IV. EXHIBITS ...............................................................................................................................16 A. ATTACHMENTS/EVIDENCE NOT IN SUPPORT OF A MOTION .....................16 EVIDENCE IN SUPPORT OF OR IN OPPOSITION TO A MOTION ..................17 B. TRIAL AND HEARING EXHIBITS ........................................................................17 C. V. PUBLIC ACCESS TO THE SYSTEM DOCKET...............................................................19 PUBLIC ACCESS AT THE COURT........................................................................19 A. B. INTERNET ACCESS ................................................................................................19 C. CONVENTIONAL COPIES AND CERTIFIED COPIES .......................................20 FORM ATTACHMENT .................................................................................................................21 FORM A - CERTIFICATE OF SERVICE ........................................................................22 CM/ECF Administrative Procedures - Civil 05-18-2021 ADMINISTRATIVE PROCEDURES FOR FILING, SIGNING, AND VERIFYING PLEADINGS AND DOCUMENTS IN THE DISTRICT COURT UNDER THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM IN CIVIL CASES I. THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM A. AUTHORIZATION General Order 04-0001 adopts the Case Management/Electronic Case Files (“CM/ECF”) System and authorizes electronic filing in conjunction with Federal Rule of Civil Procedure 5(e). Pursuant to this order, the following procedures govern electronic filing in this district unless, due to extraordinary circumstances in a particular case, a judicial officer determines that the requirements of these policies and procedures should be modified in the interest of justice. The General Order and these Procedures are effective November 1, 2004. B. DEFINITIONS AND INSTRUCTIONS The following definitions and instructions shall apply to these Procedures for the CM/ECF System: The term “document” shall include pleadings, motions, exhibits, declarations, affidavits, memoranda, papers, orders, notices, and any other filing by or to the court. The term “party” shall include counsel of record, pro se litigants, and other persons or entities eligible to receive notice. The terms “CM/ECF” and “the System” refer to the court’s Case Management/Electronic Case Files System. The term “CM/ECF website” refers to the official Internet site of the Northern District of Alabama at http://www.alnd.uscourts.gov. Click on the CM/ECF link. A “CM/ECF user” is a person who is registered to file electronically, receive electronic noticing and to browse the System. “Electronic filing” means uploading a document directly from the registered user’s computer, using the court’s Internet-based System, to file that document in the court’s case file. Sending a document to the court via email does not constitute “electronic filing.” The “Email Address of Record” refers to the Internet email address(s) of each party to the case as maintained by the Clerk. 1 CM/ECF Administrative Procedures - Civil 05-18-2021 A “Notice of Electronic Filing” (“NEF”) is generated automatically by the ECF System upon completion of an electronic filing. The NEF emailed to the email addresses of record in the case acts as the proof of service, except as noted in these procedures. The term “PDF” refers to Portable Document Format. A PDF document allows anyone to open the converted document across a broad range of hardware and software, with layout, format, links, and images intact. For information on PDF, users may visit the websites of PDF vendors, such as http://www.adobe.com/products/acrobat or http://www.fineprint.com. Users are encouraged to use Adobe to save PDF documents. The term “conventional filing” refers to documents filed in paper. The term “initial pleading” refers to any document that results in the opening of a civil case. Procedures and instructions for using the court’s CM/ECF System consistent with these policies may be found on the CM/ECF website. All hours stated shall be Central time. C. TECHNICAL SPECIFICATIONS 1. While the System requirements may be set forth more completely in a User’s Manual or other court publication, it is expected that the following hardware and software will be needed to electronically file, view and retrieve documents in the electronic file System. Other specifications are also indicated for optimum performance. a. b. c. d. e. A computer running a Windows or a Macintosh operating system. Software able to convert documents from a word processor such as WordPerfect or Word to PDF. Adobe is preferred as the software for conversion to PDF. Netscape browser version 4.7x or higher or Internet Explorer 5.5 or higher, each with 128 bit encryption is strongly recommended. High speed internet access. A scanner, if non-computerized documents need to be imaged. 2. When scanning documents to be subsequently filed electronically, filing parties should make certain their scanners are configured for 200 dpi and black and white rather than color scanning. The filing party is responsible 2 CM/ECF Administrative Procedures - Civil 05-18-2021 for the legibility of the scanned document. If for any reason a document cannot be easily read after scanning, the filing party should not electronically file the document. Instead, the filing party must conventionally file it with the Clerk’s office. 3. Because large documents may not upload properly to the System or download within a reasonable amount of time for users with a 56K modem, documents more than 10 megabytes will be rejected by the System and may be filed conventionally if the filer cannot break the document into segments than 10 megabytes. As an estimate, PDF documents of not more produced by converting a normal text file using conversion software can yield between 300 and 500 pages per 1 megabyte depending on the software used; pages (approximately one-tenth the number of pages depending on the scanner settings). Documents with color and graphics may yield even fewer pages. Filers are encouraged to save document to black and white only in PDF format using Adobe software which produces a smaller document. scanned documents will considerably fewer yield D. SYSTEM AVAILABILITY The court’s System is designed to provide service 24 hours a day. The parties, however, are encouraged to file documents in advance of filing deadlines and during normal business hours. Several judges restrict filing times to normal business hours of the Clerk of Court. Restrictions are listed on the webpages of the individual judges which can be accessed on the court’s Internet site at www.alnd.uscourts.gov. Clerk’s office staff is available to respond to questions regarding the electronic files system and the registration process and to receive voice mail messages. The deputy docket clerk assigned to each of the judges is available from 8:30 a.m. to 4:30 p.m. Monday through Friday and will accept voice mail messages at any time. Calls received after 4:30 p.m. will be returned the morning of the next business day. If a party misses a filing deadline due to an inability to file electronically, the party may seek relief by filing an appropriate motion. E. SELECTION OF CASES Unless otherwise permitted by these administrative procedures or unless otherwise authorized by the assigned judge, all documents1 submitted for filing in this district after the official implementation date, currently January 1, 2005, in all cases, no matter when a case was originally filed, shall be filed electronically, with the following exceptions: 1The requirement that “all documents” be filed electronically includes briefs, transcripts of proceedings, and deposition transcripts used in support of motions. 3 CM/ECF Administrative Procedures - Civil 05-18-2021 1. 2. 3. 4. Parties proceeding pro se shall not file electronically. Attorneys appearing in cases with pro se parties may electronically file documents and serve pro se parties conventionally. The filing of social security cases shall be subject to the limitations imposed in Section III(C) of these procedures. A registered CM/ECF user may apply in a particular case to the assigned judge for permission to file documents conventionally, for good cause shown. Even if the assigned judge initially grants an attorney permission to file documents conventionally, the assigned judge may withdraw that permission at any time during the pendency of a case and require that documents be filed electronically using the System. If the case is reassigned, the judge receiving the case may review and withdraw previously granted permission to file conventionally. The Clerk’s office or any judge of this court may deviate from the requirements of these procedures in specific cases, without prior notice, if deemed appropriate in the exercise of discretion, considering the need for the just, speedy, and inexpensive determination of matters pending before the court. Documents filed thereafter will be affected by the change. The court may also amend these procedures at any time without prior notice. The most current version of Civil Administrative Procedures can always be found on the court’s website at www.alnd.uscourts.gov. F. REGISTRATION 1. 2. Each attorney who wishes to practice in this court will register for CM/ECF Electronic Noticing. The Attorney Update and Registration for E-Noticing form is available on the court’s website at http://www.alnd.uscourts.gov; click on the CM/ECF link. The court will issue logins and passwords to attorneys in good standing in the Northern District of Alabama. To be in good standing, an attorney must meet the requirements in N.D. ALA. LR 83.1. The login assigned will correspond to the attorney’s Alabama State Bar identification number. The initial password will be assigned by the court. Attorneys should change their password as soon as possible after registering. The court will issue logins and passwords to attorneys practicing pro hac vice in the Northern District of Alabama. The login assigned will correspond to the Bar identification number assigned in his/her state of residence. Attorneys should contact the Clerk’s office to resolve any question regarding assignment of the login. 3. To ensure that the Clerk’s office has correctly entered a registering attorney’s email address in the System, the Clerk’s office will send the attorney an email 4 CM/ECF Administrative Procedures - Civil 05-18-2021 4. 5. 6. 7. 8. message after the registration is processed. The user must reply to the email for confirmation to activate the account. Each attorney filing electronically must complete and submit an Attorney Electronic Filing Registration Form. The form is available on the court’s website at http://www.alnd.uscourts.gov; click on the CM/ECF link. Once registered, attorneys may withdraw from participating in CM/ECF only with written permission from the court for good cause shown. Upon entry of an order withdrawing an attorney, the Clerk’s office will immediately cancel the attorney’s password and delete the attorney’s name from applicable electronic service lists. After registering, attorneys should change their passwords. If an attorney has information that the security of an existing password may have been compromised, the attorney should immediately change his or her password and notify the Clerk’s office about the potential breach of security. An attorney whose email address, mailing address, telephone or fax number has changed shall timely file a Notice of Change of Address in any active case in which that attorney is attorney of record. One notice to the court will change the address in every active case as of the date the notice is electronically filed. A PACER login is required in addition to the CM/ECF login and password issued by the court in order to file electronically and to access the System. To register for PACER, a user must complete the online form or submit a the PACER website at http://pacer.psc.uscourts.gov. form, available on registration G. LOGIN AND PASSWORD Each attorney admitted to practice in the Northern District of Alabama shall be entitled to one login and password from the District Court. The login and password permit the attorney to participate in the electronic retrieval and filing of pleadings and other papers. 1. 2. No attorney shall knowingly permit or cause to permit his or her password to be utilized by anyone other than an authorized employee of his or her office. Once registered, the attorney shall be responsible for all documents filed with his or her password. Use of the login and password to file documents will have the same effect as an original signature under Rule 11 of the Federal Rules of Civil Procedure. 3. Registration for a login and password is governed by Section I(F). 5 CM/ECF Administrative Procedures - Civil 05-18-2021 4. 5. An attorney admitted pro hac vice must register for a login and password in accordance with these Administrative Procedures. The $50 fee may be paid online via Pay.gov during the filing of the event or mailed to the Clerk at the time the motion for pro hac vice admission is electronically filed. To comply with CM/ECF requirements, the password must consist of (a) at least eight characters, (b) contain both uppercase and lowercase characters, and (c) contain at least one numeral or special character (such as $, %, #, *, &, ?). II. ELECTRONIC FILING AND SERVICE OF DOCUMENTS A. FILING 1. 2. Electronically filed documents must meet the requirements of Rule 10 of the Federal Rules of Civil Procedure (Form of Pleadings). All pleadings, motions, applications, briefs, memoranda of law, deposition transcripts, transcripts of proceedings, or other documents in a case shall be electronically filed on the System except as otherwise provided by these administrative procedures. Emailing a document to the Clerk’s office or to the assigned judge shall not constitute “filing” of the document. A document shall not be considered filed for purposes of the Federal Rules of Civil Procedure until the filing party receives a System-generated “Notice of Electronic Filing” described in Section II(B)1 of these procedures. 3. Summons and Complaints. (a) A party may submit initial pleadings (complaint, notice of removal, miscellaneous motions, summons, and civil cover sheet) in two ways: (1) via CM/ECF under the section entitled “Send New Case to Clerk” under CASE INITIATING DOCUMENTS or (2) file it in the Clerk’s office in paper format. If filing in paper format your document must be signed and you must provide the Clerk a disk with a PDF image of all initial pleadings and documents. Payment of the initial filing fee may be made in the Clerk’s office by check or credit card or electronically in CM/ECF via Pay.gov. The Clerk will assign a judge and electronically file the initial pleading document when the case is opened so that images will be available in CM/ECF. (b) A party may not electronically serve a summons and complaint, but instead must perfect service according to one of the methods allowed by Rule 4 of the Federal Rules of Civil Procedure. 6 CM/ECF Administrative Procedures - Civil 05-18-2021 (c) If a party wishes the Clerk’s office to effect service of the initial pleading by means of certified mail, the party must file a written request for certified mail service and provide to the Clerk’s office service materials including copies of all documents to be served, summonses, and pre-addressed envelopes with postage and certified mail, return receipt requested (“CMRRR”) forms returnable to the Clerk of Court. The filing party may elect some other conventional form of service permitted by the Federal Rules of Civil Procedure. Pleadings or documents will be deemed timely filed on any particular date if filed prior to midnight on that date unless otherwise limited by order of this court. The time of filing is governed by the Notice of Electronic Filing which is generated after the document is uploaded to the court’s CM/ECF server. Attorneys should be aware that large filings initiated close to midnight may not complete before the date changes in the System. Documents which require leave of court, such as amended complaints, shall be attached as an exhibit to the motion for leave to file as set out in Section IV(B). If the court grants the motion, the attorney must electronically file an exact duplicate of the attachment. Pleadings, attachments and exhibits larger than 10 megabytes may be filed electronically in separate 10 megabyte segments. Documents and exhibits which cannot be produced in digital format may be filed in paper format with conventional service on the other side. The filing party must additionally file an electronic notice of filing of paper documents in the CM/ ECF system. The Clerk’s office shall not maintain a paper court file in any case begun after the effective date of these procedures except as otherwise provided in these procedures. The official court record shall be the electronic file maintained on the court’s servers. The official record shall include, however, any conventional documents or exhibits filed in accordance with these procedures. The filing of civil discovery shall be governed by N.D. ALA. LR 5.1. The filing of discovery materials as required by N.D. ALA. LR 5.1(c) or as required by the court shall be accomplished electronically. Attorneys shall determine among themselves the manner of exchanging discovery, whether it be by posted mail, email, courier, etc. 4. 5. 6. 7. 8. 9. For all filings electronic or conventional, the style of the civil case number on the face of the document will change as follows: [Division#]:[2-digit year]-cv-[case #][Initials of presiding judge][Initials of referral judge] 7 CM/ECF Administrative Procedures - Civil 05-18-2021 10. 11. 12. Division numbers: 1-Eastern, 2-Southern, 3-Northwestern, 4-Middle, 5-Northeastern, 6-Jasper, 7-Western For example, 2:04-cv-5000-KOB-JEO is the court’s 5,000th civil case filed in 2004. The case was filed in the Southern Division and is assigned to Chief Judge Bowdre and referred to Chief Magistrate Judge Ott. The system will read case number with or without dashes and will find the case with only the year and number. All motions, pleadings, and other papers filed electronically during or within twenty-four hours prior to a trial, hearing, or other proceeding related to the case in which the filing occurs shall be accompanied by a paper copy of the filing to be distributed to the appropriate chambers by the Clerk. Affidavits and requests for execution of judgment shall be electronically filed, but proposed execution orders and process, such as garnishments, notices of garnishment, levies, and executions, shall be emailed (in Word or WordPerfect format) to the appropriate judicial officer’s helpdesk as listed on the court’s webpage. Forms necessary for the Marshal to serve execution orders (e.g., USMS-285) are to be prepared in conventional paper format and hand delivered to the Clerk for forwarding to the Marshals Service. Pursuant to the policy set forth in Rule 13 of the Model Local Rules for Electronic Case Filing, endorsed by the Judicial Conference in October 2005, a hyperlink contained in a filing is no more than a convenient mechanism for accessing material cited in a document. A hyperlink reference is extraneous to a filed document and is not a part of the court’s record. In order to preserve the integrity of the court record, users wishing to insert hyperlinks in court filings shall continue to use the conventional citation method for the cited authority, in addition to the hyperlink. Hyperlinks are only permissible for legal references and citations and are not to include advertisements. The court may direct the Clerk to strike any pleading which contains an inappropriate hyperlink. 13. Filing a Document Containing Redactions Unless redacted properly, redactions in pdf documents can be revealed using Adobe Acrobat Pro, even after the document has been filed electronically in the CM/ECF system. Adobe provides an overview of how to redact documents and remove sensitive link: https://helpx.adobe.com/acrobat/using/removing-sensitive-content-pdfs.html information at the following Here is an additional link for assistance with handling redactions in a pdf document: https://lawyerist.com/how-to-redact-a-pdf/ To properly make redactions that cannot be revealed, use the following steps: 8 CM/ECF Administrative Procedures - Civil 05-18-2021 First, open the document you wish to redact in Acrobat Pro, go to the Tools menu, then select Redact. Doing so will bring up the redaction tools when you return to your document. Select Mark for Redaction and Adobe will remind you that redacting is a two-step process. In the document, highlight the text you want to redact and Acrobat will outline it in red. Then click Apply to redact the highlighted text. Acrobat will ask if you are sure you want the material redacted. If so, click OK. The second step of the two-step process is to remove metadata regarding the redacted text. After you click OK, Acrobat will then ask you if you want to find and remove any other hidden information. You should always say Yes to this. Acrobat is asking if you want to remove the metadata, and you always want to remove the metadata. Alternatively, to assure that redactions cannot be revealed once a document is filed in CM/ECF, the document should be printed and the redactions made with a black marker. The marked document can then be scanned and the resulting pdf can be filed in CM/ECF. B. SERVICE 1. 2. Whenever a pleading or other paper is filed electronically in accordance with these procedures, the System shall generate a NEF to the filing party and to any other party who is a registered user and has requested electronic notice in that case.2 (a) If the recipient is a registered participant in the System, the System’s emailing of the NEF shall be the equivalent of service of the pleading or other paper by hand delivery. (b) Service of the NEF on a party who is not a registered participant in the System may be accomplished by email, subject to the additional service requirements of paragraph B(3) below. A certificate of service on all parties entitled to service or notice is still required when a party files a document electronically. The certificate must state the manner in which service or notice was accomplished on each party so entitled. Sample language for a certificate of service is attached to these procedures as Form A. 2To determine whether another party is a registered user, the filer can select the System’s “Utilities” category, and then click on “Mailing Information for a Case” on the pull-down menu. The filer then enters the case number and the System information will appear, stating whether or not the filer must mail a copy or if the System will electronically generate one. 9 CM/ECF Administrative Procedures - Civil 05-18-2021 3. 4. A party who is not a registered participant of the System is entitled to a paper copy of any electronically filed pleading, document, or order. The filing party must therefore provide the non-registered party with the pleading, document, or order according to the Federal Rules of Civil Procedure. When mailing paper copies of documents that have been electronically filed, the filing party must include the NEF to provide the recipient with proof of the filing. A filer who elects to bring a document to the Clerk’s office for scanning and uploading to the System due to technical difficulties, must serve conventional copies on all non-registered parties to the case. Some delay in the uploading and subsequent electronic noticing of the document may be expected. If time is an issue, filers should consider paper service or notice by an alternate means on registered parties, such as email or fax. C. SIGNATURES AND AFFIDAVITS 1. A pleading or other document requiring an attorney’s signature shall be signed in the following manner if filed electronically: “s/(attorney name).” The correct format for an attorney signature is as follows: [or electronic signature] s/E. Cape Able Able Attorney Bar Number: 12345 Attorney for (Plaintiff/Defendant) ABC Law Firm 123 Biscuit Street Birmingham, Alabama 35203 Telephone: (205) 123-4567 Fax: (205) 123-7654 Email: [email protected] 2. Documents that must contain original signatures, such as affidavits, contracts, bonds, etc., or which require either verification or an unsworn declaration under any rule or statute, shall be filed electronically with originally executed copies maintained by the filer. The electronic filing must include a certificate that the filer currently holds the original signature document with all the formalities. The pleading or other document electronically filed shall indicate a signature, e.g., “s/Jane Doe,” or the original may be scanned and electronically filed in the ECF System. The filing party or attorney shall retain the hard copy of the document containing the original signatures for at least one (1) year after exhaustion of time to appeal final resolution of the action, or issuance of mandate from the Court of Appeals. 3. In the case of a stipulation or other document to be signed by two or more persons, the following procedure should be used: 10 CM/ECF Administrative Procedures - Civil 05-18-2021 Documents requiring signatures of more than one party shall be filed by submitting a scanned document containing all necessary signatures. D. FEES PAYABLE TO THE CLERK Any fee required for filing a pleading or paper in District Court is payable to the Clerk of the Court by check, money order, or cash. The Clerk’s office will document receipt of fees on the docket with a text-only entry. The court will not maintain electronic billing or debit accounts for lawyers or law firms. E. ORDERS 1. 2. 3. Court personnel will electronically file all orders and notices entered by the court. An order signed, entered and noticed electronically has the same force and effect of a traditional paper copy of the order signed and entered conventionally. The court will fax or mail copies of orders entered electronically to pro se parties who are not registered participants of the CM/ECF System. Submitting Proposed Orders Proposed orders may be electronically submitted directly to chambers as an attachment to an email and not submitted electronically through the court’s CM/ECF System. The email should include the case number and style in the subject line. Attorneys are encouraged to send proposed orders directly to chambers in Word or WordPerfect format. Special email addresses for each judge are listed on the court’s website. If the judge approves the proposed order, it will be electronically signed and filed in CM/ECF by court staff. 4. Filing Proposed Documents If leave of court is required before a party may file a document, such as an amended complaint or a document which will be filed out of time, the proposed document shall be attached as an exhibit to the motion requesting leave of court. If the court grants the motion, the attorney must file electronically an exact duplicate of the proposed document. F. TITLE OF DOCKET ENTRIES The party electronically filing a pleading or other document shall be responsible for designating a docket entry title for the document by using one of the docket event categories prescribed by the court.3 3Readers may view the ACM/ECF Civil Menu for Attorneys@ on the CM/ECF link on the court’s website: www.alnd.uscourts.gov. 11 CM/ECF Administrative Procedures - Civil 05-18-2021 G. CORRECTING DOCKET ENTRIES 1. 2. 3. 4. Once a document is filed electronically and becomes part of the case docket, corrections to the docket are made only by the Clerk’s office. The System will not permit the filing party to make changes to the document(s) or docket entry filed in error once the transaction has been accepted and the Notice of Electronic Filing has been displayed. A document incorrectly filed in a case may be the result of posting the wrong PDF file to a docket entry, selecting the wrong document type from the menu, or entering the wrong case number and not catching the error before the transaction is completed. The filing party should not attempt to re-file the document. As soon as possible after an error is discovered, the filing party should contact the Clerk’s office with the case number and document number for which the correction is being requested. If appropriate, the court will make an entry indicating that the document was filed in error. The filing party will be advised if the document needs to be re-filed. The Clerk will correct filing-process errors, such as errors related to case numbers, document-type selection, filing in the wrong case, and obviously erroneous filings, but will not remove or correct documents correctly filed in a case simply because counsel requests removal or correction for reasons unrelated to errors in the process of electronic filing. H. TECHNICAL FAILURES 1. 2. 3. The Clerk’s office shall deem the Northern District of Alabama CM/ECF site to be subject to a technical failure on a given day if the site is unable to accept filings continuously or intermittently over the course of any period of time greater than one hour after 10:00 a.m. that day. Scheduled maintenance outages of the system will be posted on the website prior to the outage. Technical problems encountered by the filer, such as phone lines, the filer’s Internet Service Provider (“ISP”), or hardware or software problems, will not constitute a technical failure under these procedures nor excuse an untimely filing. A filer who cannot file a document electronically because of his own technical problems may bring a disk to the Clerk’s office for filing. A filing party whose pleading is made untimely as the result of a technical failure of the court’s CM/ECF site may seek relief by filing an appropriate motion. 12 CM/ECF Administrative Procedures - Civil 05-18-2021 I. PRIVACY To address the privacy concerns created by Internet access, you should not include certain types of sensitive information in any document filed with the court unless such inclusion is necessary and relevant to the case. You must remember that any personal information not otherwise protected will be made available over the Internet via CM/ECF. Pursuant to the E-Government Act, e-filers are required to redact the five personal data identifiers from electronically filed documents, unless otherwise ordered by the court: 1. 2. 3. 4. 5. Social Security numbers. If an individual’s social security number must be included in a document, only the last four digits of that number should be used. Names of minor children. If the involvement of a minor child must be mentioned, only the initials of that child should be used. Dates of birth. If an individual’s date of birth must be included in a document, only the year should be used. Financial account numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used. Addresses of Individuals. If the address of an individual is relevant, only the city and state should be used. the personal data In compliance with the E-Government Act of 2002, a party wishing to file a identifiers specified above may document containing conventionally file, with leave of court, an un-redacted document under seal. This document shall be retained by the court as part of the record. The court, however, will require a redacted version of the pleading to be filed electronically for the public file. Caution is recommended with regard to other personal identifiers, such as driver’s license, medical records, treatment and diagnosis, employment history, individual financial information, and proprietary or trade secret information. Counsel is strongly urged to share this information with all clients so that an informed decision about the inclusion, redaction and/or exclusion of certain materials may be made. It is the sole responsibility of counsel and the parties to ensure that redaction of personal identifiers is done. The Clerk will not review each pleading for redaction. SPECIAL NOTICE TO ATTORNEYS INVOLVED IN SOCIAL SECURITY CASES - It is the responsibility of counsel for the Social Security claimant to provide to the U.S. Attorney’s office, by separate letter, the social security number of the plaintiff upon the filing of a new social security case. 13 CM/ECF Administrative Procedures - Civil 05-18-2021 III. CONVENTIONAL FILING OF DOCUMENTS The following procedures govern documents filed conventionally. Attorneys are required to additionally submit, with the paper filing, a disk containing a PDF image of the complaint. The Clerk will scan and electronically file paper documents for pro se parties and others excused by the court for good cause shown from the requirement of submitting a disk. Documents which are not available in electronic format such as transcripts before the Office of Hearings and Appeals filed in Social Security cases and state trial transcripts offered by the State of Alabama in habeas corpus cases may be filed conventionally as set out in Section III(C) below. The court may authorize conventional filing of other documents upon a showing of good cause by the filer. A. DOCUMENTS TO BE FILED UNDER SEAL Before a document is filed under seal, the filing party first must obtain permission from a judicial officer by filing a motion or application seeking leave to file a sealed document. At the same time, the document(s) proposed to be sealed is to be submitted to the Clerk in conventional paper format with a PDF copy of the document(s) on a disk. A party must electronically file the motion or application for leave to file documents under seal, but the filer should not electronically attach the document(s) proposed to be sealed. A motion or application for leave to file documents under seal which is not filed electronically shall be presented in conventional paper format to the Clerk’s office, together with a PDF version of the motion and sealed document(s) on a disk, along with a proposed order in paper format. If the motion or application is granted, the assigned judge, or designee, will enter an order authorizing the filing of the document(s) under seal, and the Clerk will file electronically the PDF version of the sealed document(s). The filer should not undertake to electronically file the sealed document(s). Documents so filed will be available for viewing only by counsel in the case and court staff assigned to the presiding judicial officer(s). Counsel must serve copies of seal documents on opposing counsel by mail. B. PRO SE LITIGANTS Pro se litigants shall file paper originals of all complaints, pleadings, motions, affidavits, briefs, and other documents which must be signed or which require either verification or an unsworn declaration under any rule or statute. The Clerk’s office will scan and file the document electronically and retain the paper original. The official court record will be the electronic file maintained on the court’s servers. C. SOCIAL SECURITY AND TITLE 28 U.S.C. § 2254 CASES Absent a showing of good cause, all documents, notices, and orders filed in social security reviews and state habeas cases shall be filed and noticed electronically, except as noted: 14 CM/ECF Administrative Procedures - Civil 05-18-2021 1. 2. 3. 4. 5. Answers of the government in Social Security cases will be electronically filed. The transcript of the Office of Hearings and Appeals, which is attached as an exhibit to the answer, will be electronically filed by the Social Security Administration (“SSA”); a paper courtesy copy will also be provided to the court on the same day according to Section II(A)(3) of these procedures. Service of electronic copies on opposing counsel will be accomplished via CM/ECF; pro se and/or incarcerated parties shall be by conventional means. If conventionally filed, the Clerk will not scan or place the transcript into the System, but will retain the paper copy of the transcript in accordance with the records management guide. Answers in habeas corpus cases filed pursuant to Title 28 U.S.C. § 2254 will be electronically filed. The transcript of the state proceedings, which is attached as an exhibit to the answer, will be conventionally filed in paper on the same day according to Section II(A)(3), unless an electronic version is available. Service on opposing counsel, pro se and/or incarcerated parties shall be by conventional means. If conventionally filed, the Clerk will not scan or place the transcript into the System, but will retain the paper copy of the transcript in accordance with the records management guide. All other documents in Social Security and habeas corpus cases, including briefs, will be filed and served electronically unless the court otherwise orders. If filed electronically, transcripts and exhibits in a Social Security case will be available only to attorneys of record and court staff. Internet access to all other documents filed in a Social Security case will be identical to all other civil cases. Counsel and pro se parties filing Social Security cases are required to provide the social security number of the plaintiff to the U. S. Attorney by separate letter outside the CM/ECF System. D. COPY REQUIREMENT FOR OVERSIZE DOCUMENTS For all electronic filings of twenty-five (25) pages or more, counsel is required to supply one conventional (paper) copy of the filing to the Clerk of Court. Such paper copies of the documents are to be submitted to the Clerk’s office, not to chambers, within twenty-four hours after the electronic filing. The electronically filed document shall remain the official filing, and any discrepancy between it and the paper copy is resolved in favor of the electronically filed version. Some judges have waived this requirement with respect to filings other than summary judgment submissions, which can be determined by reviewing the judge’s personal webpage linked to the court’s webpage. 15 CM/ECF Administrative Procedures - Civil 05-18-2021 E. RETENTION OF ORIGINALS OF DOCUMENTS REQUIRING SCANNING Originals of documents which have been scanned by counsel and filed electronically must be retained by the filing party and made available upon request to the court and other parties for a period of at least one (1) year following the expiration of all time periods for appeals, or resolution of appeals, whichever is later. F. SERVICE OF CONVENTIONAL FILINGS A filer who files documents conventionally pursuant to these Administrative Procedures by bringing a document to the Clerk’s office for scanning and uploading to the System must serve conventional copies on all non-registered parties to the case in accordance with the Federal Rules of Civil Procedure. Some delay in the uploading and subsequent electronic noticing of the document may be expected. If time of receipt by opposing counsel is an issue, filers should serve paper copies on registered parties conventionally or by an alternate means, such as email or fax. IV. EXHIBITS A. ATTACHMENTS/EVIDENCE NOT IN SUPPORT OF A MOTION This section applies to attachments and exhibits other than those submitted in support of a motion, e.g., an attachment to a complaint. Exhibits submitted in support of a motion are governed by Section IV(B) of these procedures. 1. 2. Attachments and exhibits to documents which are too large to convert to a usable electronic format, such as books, large color pictures or old documents of poor quality, may be conventionally filed with the Clerk and served on opposing counsel. The conventionally filed document or electronically filed document with exhibits must include a statement that the attachments and/or exhibits are being conventionally filed. Documents so filed shall be retained by the Clerk in accordance with the records management guide. If possible, filers should electronically image, i.e., “scan,” a paper exhibit that is fewer than 10 megabytes and submit the exhibit as a PDF file. Because PDF files containing scanned documents take up considerably more space on the System than PDF files containing electronically generated documents, filing parties may submit PDF files containing scanned documents of more than 10 megabytes only if they are filed in separate 10-megabyte segments. Electronically filed documents with large attachments and/or exhibits must attach an appendix clearly identifying the exhibits and attachments. Additionally, each PDF attachment of exhibits or evidence should clearly identify the content in the description field on the electronic filing. 16 CM/ECF Administrative Procedures - Civil 05-18-2021 3. 4. 5. If the scanner is set to scan in color, documents will take much longer to upload; filing parties should configure their scanners to scan documents at 200 dpi and in black and white, not in color. Documents appearing in color in their original form, such as color photographs, may be scanned in color and then uploaded to the System. The filing party must verify the readability of scanned documents before filing them electronically with the court. Exhibits submitted conventionally shall be served on other parties conventionally. B. EVIDENCE IN SUPPORT OF OR IN OPPOSITION TO A MOTION 1. 2. 3. 4. 5. A party electronically submitting evidentiary materials to the Clerk’s office in support of, or in opposition to, a motion shall reference the base motion being supported or opposed in the caption of the pleading and include as the first attachment an index listing each item of evidence being filed. Attachments and exhibits which are too large to file electronically shall be filed in accordance with Sections IV(A)(1)&(2). If possible, filing parties should electronically image, i.e., “scan,” a paper exhibit and attach the resulting PDF file(s) to the electronically filed motion if the attached files are no more than 10 megabytes each. Note that multiple files can be attached to a filing, so long as each does not exceed the 10 megabyte limitation. Each separate file attachment must be clearly identified in the index of the attachment for easy recognition. If the scanner is set to scan in color, documents will take much longer to upload; filing parties should configure their scanners to scan documents at 200 dpi and in black and white, not in color. Documents appearing in color in their original form, such as color photographs, may be scanned in color and then uploaded to the System. The filing party is required to verify the readability of scanned documents before filing them electronically with the court. Copies of conventionally filed supporting materials shall be served on other parties conventionally. C. TRIAL AND HEARING EXHIBITS Effective December 1, 2016, the United States Court of Appeals for the Eleventh Circuit adopted changes to its Local Rules and Internal Operating Procedures that impact the manner in which trial or hearing exhibits are transmitted to the court of 17 CM/ECF Administrative Procedures - Civil 05-18-2021 appeals in connection with appeals. For purposes of CM/ECF, there are three (3) important requirements: • • • “The district court clerk must include in the electronic record on appeal electronic versions of all documentary exhibits admitted into evidence at trial or any evidentiary hearing”; “If documentary exhibits have been sealed or marked confidential by the district court or the district court clerk, the district court clerk must transmit any such sealed or confidential documentary exhibits to this court either in their original form or in electronic form provided the electronic access is appropriately restricted,…”; and “As to non-documentary physical exhibits, the parties are required to include photographs or other reproductions of such exhibits in the electronic record on appeal.” In order to comply with the Eleventh Circuit’s requirements, beginning December 1, 2016, counsel offering any documentary exhibit at a trial or hearing must supply the courtroom deputy assigned to the trial or hearing a full, complete, and unaltered electronic version of each offered documentary exhibit, scanned or created in PDF format. (Counsel should refer to paragraph I(C)(2) of this Administrative Procedures Manual for specifications related to scanning and creating PDF-formatted files). To enable the courtroom deputy to electronically docket each separate exhibit, each exhibit shall be a separate PDF-formatted electronic file (i.e., trial or hearing exhibits should NOT be combined in one large PDF file). At the beginning of the trial or hearing, counsel must supply the courtroom deputy with a disk or other electronic medium on which such separate exhibit files have been stored so that the courtroom deputy may upload each such exhibit file to CM/ECF at the conclusion of the trial or hearing. The labeling of each electronic exhibit file must correspond to the exhibit number or other identification on the documentary exhibit. If counsel offers an exhibit for which he or she has not supplied an electronic version at the beginning of the trial or hearing, counsel shall provide such an electronic version before the end of the proceeding. In the event counsel desires to keep an exhibit confidential or sealed, counsel should bring that to the attention of the court and the courtroom deputy so that appropriate docketing can occur. For every non-documentary physical exhibit, counsel must supply the courtroom deputy with one or more unaltered and unannotated photographs, drawings, diagrams, or other depictions of the exhibit, scanned or created in PDF format for electronic filing. Multiple photographs, drawings, diagrams, 18 1. 2. 3. 4. CM/ECF Administrative Procedures - Civil 05-18-2021 or depictions of the same physical exhibit may be combined into one PDF-formatted file, but separate electronic files will be provided for each separate exhibit. 5. 6. At the beginning of a trial or hearing, counsel shall provide the courtroom deputy with a disk or other electronic medium on which such PDF-formatted electronic files depicting physical exhibits have been stored. The courtroom deputy will upload and docket into CM/ECF the electronic files related to admitted exhibits at the conclusion of the trial or hearing. The labeling of each electronic exhibit file must correspond to the exhibit number or other identification on the physical exhibit. If counsel offers an exhibit for which he or she has not supplied an electronic depiction at the beginning of the trial or hearing, counsel shall provide such an electronic depiction before the end of the proceeding. Counsel may request that the court instruct the courtroom deputy to upload and docket a documentary exhibit or depictions of a physical exhibit not admitted into evidence by the court for purposes of preserving for appeal an offer of proof as to such an exhibit, but such exhibit shall not be displayed to or revealed to the jury. V. PUBLIC ACCESS TO THE SYSTEM DOCKET A. PUBLIC ACCESS AT THE COURT Electronic access to the electronic docket and documents filed in the System is available at no charge at the Clerk’s office during regular business hours. A copy fee for an electronic reproduction is required in accordance with 28 U.S.C. § 1930. B. INTERNET ACCESS Remote electronic access to the System for viewing purposes is limited to subscribers to the Public Access to Court Electronic Records (“PACER”) system. The Judicial Conference of the United States has ruled that a user fee will be charged for remotely accessing certain detailed case information, such as filed documents and docket sheets in civil cases, but excluding review of calendars and similar general information.4 4According to a memorandum from the Administrative Office of the United States Courts dated April 9, 2002, non-judiciary CM/ECF users will be charged a fee of seven cents per page starting on July 1, 2002, to access electronic data such as docket sheets and case documents obtained remotely through the PACER system. The maximum charge per document is $2.10. The access fee does not apply to official recipients of electronic documents, i.e., parties legally required to receive service or to whom service is directed by the filer in the context of service under Federal Rules of Civil Procedure. Official recipients will receive the initial electronic copy of a document free to download as they see fit, but if they remotely access the document again, they will be charged seven cents a page. 19 CM/ECF Administrative Procedures - Civil 05-18-2021 C. CONVENTIONAL COPIES AND CERTIFIED COPIES Conventional copies and certified copies of electronically filed documents may be purchased at the Clerk’s office. The fee for copying and certifying will be in accordance with 28 U.S.C. § 1914. 20 CM/ECF Administrative Procedures - Civil 05-18-2021 FORM ATTACHMENT 21 CM/ECF Administrative Procedures - Civil 05-18-2021 FORM A S A M P L E F O R M A T IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Plaintiff, vs. Defendant. Case No. 2:04-cv-5000-KOB-JEO CERTIFICATE OF SERVICE I hereby certify that on (Date), I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: ____________________________________________, and I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants:_________ ______________________________. Respectfully submitted, s/[Name of Password Registrant] Name of Password Registrant Address City, State, Zip Code Phone: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: [email protected] [attorney bar number, if applicable] 22
=== Criminal Administrative Procedures Manual for CM/ECF ===
CRIMINAL CASES Administrative Procedures FOR FILING, SIGNING, AND VERIFYING PLEADINGS AND DOCUMENTS IN THE DISTRICT COURT UNDER THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA ADMINISTRATIVE PROCEDURES FOR FILING, SIGNING, AND VERIFYING PLEADINGS AND DOCUMENTS IN THE DISTRICT COURT UNDER THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM IN CRIMINAL CASES TABLE OF CONTENTS I. THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM…. ....................1 A. AUTHORIZATION ....................................................................................................1 B. DEFINITIONS AND INSTRUCTIONS .....................................................................1 C. TECHNICAL SPECIFICATIONS..............................................................................2 D. SYSTEM AVAILABILITY ........................................................................................3 E. SELECTION OF CASES ............................................................................................3 F. REGISTRATION ........................................................................................................4 G. LOGIN and PASSWORD ...........................................................................................6 II. ELECTRONIC FILING AND SERVICE OF DOCUMENTS ..........................................6 FILING ......................................................................................................................6 A. SERVICE ...................................................................................................................9 B. SIGNATURES AND AFFIDAVITS .........................................................................9 C. D. FEES PAYABLE TO THE CLERK..........................................................................10 E. ORDERS ....................................................................................................................10 TITLE OF DOCKET ENTRIES ................................................................................11 F. G. CORRECTING DOCKET ENTRIES .....................................................................11 TECHNICAL FAILURES .........................................................................................12 H. PRIVACY ..................................................................................................................13 I. III. CONVENTIONAL FILING OF DOCUMENTS ................................................................14 A. DOCUMENTS TO BE FILED UNDER SEAL ........................................................14 PRO SE LITIGANTS ................................................................................................14 B. C. SERVICE OF CONVENTIONAL FILINGS ............................................................14 D. RETENTION OF ORIGINALS OF DOCUMENTS REQUIRING SCANNING ....15 E. COPY REQUIREMENT FOR OVERSIZE DOCUMENTS ....................................15 F. WAIVERS OF ARRAIGNMENT .............................................................................15 IV. EXHIBITS ...............................................................................................................................15 A. ATTACHMENTS/EVIDENCE NOT IN SUPPORT OF A MOTION .....................15 EVIDENCE IN SUPPORT OF OR IN OPPOSITION TO A MOTION ..................16 B. TRIAL AND HEARING EXHIBITS ........................................................................17 C. V. PUBLIC ACCESS TO THE SYSTEM DOCKET...............................................................19 PUBLIC ACCESS AT THE COURT........................................................................19 A. B. INTERNET ACCESS ................................................................................................19 C. CONVENTIONAL COPIES AND CERTIFIED COPIES .......................................19 FORM ATTACHMENT .................................................................................................................20 FORM A - CERTIFICATE OF SERVICE ........................................................................21 CM/ECF Administrative Procedures – Criminal 05-18-2021 ADMINISTRATIVE PROCEDURES FOR FILING, SIGNING, AND VERIFYING PLEADINGS AND DOCUMENTS IN THE DISTRICT COURT UNDER THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM IN CRIMINAL CASES I. THE CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM A. AUTHORIZATION General Order No. 04-0001 adopts the Case Management/Electronic Case Files (“CM/ECF”) System and authorizes electronic filing in conjunction with Federal Rule of Criminal Procedure 57. Pursuant to this order, the following procedures govern electronic filing in this district unless, due to extraordinary circumstances in a particular case, a judicial officer determines that the requirements of these policies and procedures should be modified in the interest of justice. The General Order and these Procedures are effective November 1, 2004. B. DEFINITIONS AND INSTRUCTIONS The following definitions and instructions shall apply to these Procedures for the CM/ECF System: The term “document” shall include pleadings, motions, exhibits, declarations, affidavits, memoranda, papers, orders, notices, and any other filing by or to the court. The term “party” shall include counsel of record, pro se litigants, and other persons or entities eligible to receive notice. The terms “CM/ECF” and “the System” refer to the court’s Case Management/Electronic Case Files System. The term “CM/ECF website” refers to the official Internet site of the Northern District of Alabama at http://www.alnd.uscourts.gov. Click on the CM/ECF link. A “CM/ECF user” is a person who is registered to use the CM/ECF system. A “CM/ECF noticed user” is a person who is initially signed up only for electronic noticing and is able to browse the System. A “CM/ECF filer” is a person who is also registered to file electronically. “Electronic filing” means uploading a document directly from the registered user’s computer, using the court’s Internet-based System, to file that document in the court’s case file. Sending a document to the court via email does not constitute “electronic filing.” 1 CM/ECF Administrative Procedures – Criminal 05-18-2021 The “Email Address of Record” refers to the Internet email address(s) of each party to the case as maintained by the Clerk. A “Notice of Electronic Filing” (“NEF”) is generated automatically by the ECF System upon completion of an electronic filing. The NEF emailed to the email addresses of record in the case acts as the proof of service, except as noted in these procedures. The term “PDF” refers to Portable Document Format. A PDF document allows anyone to open the converted document across a broad range of hardware and software, with layout, format, links, and images intact. For information on PDF, users may visit the websites of PDF vendors, such as http://www.adobe.com/products/acrobat or http://www.fineprint.com. Users are encouraged to use Adobe to save PDF documents. The term “conventional filing” refers to documents filed in paper. The term “charging document” refers to any document that results in the opening of a criminal case in this court. Procedures and instructions for using the court’s CM/ECF System consistent with these policies may be found on the court’s CM/ECF website. All hours stated shall be Central time. C. TECHNICAL SPECIFICATIONS 1. While the System requirements may be set forth more completely in a User’s Manual or other court publication, it is expected that the following hardware and software will be needed to electronically file, view and retrieve documents in the electronic file System. Other specifications are also indicated for optimum performance. a. b. c. d. e. A computer running a Windows or a Macintosh operating system. Software able to convert documents from a word processor such as WordPerfect or Word to PDF. Adobe is preferred as the software for conversion to PDF. Netscape browser version 4.7x or higher or Internet Explorer 5.5 or higher, each with 128 bit encryption is strongly recommended. High speed internet access. A scanner, if non-computerized documents need to be imaged. 2 CM/ECF Administrative Procedures – Criminal 05-18-2021 2. 3. When scanning documents to be subsequently filed electronically, filing parties should make certain their scanners are configured for 200 dpi and black and white rather than color scanning. The filing party is responsible for the legibility of the scanned document. If for any reason a document cannot be easily read after scanning, the filing party should not electronically file the document. Instead, the filing party must conventionally file it with the Clerk’s office. Because large documents may not upload properly to the System or download within a reasonable amount of time for users with a 56K modem, documents more than 10 megabytes will be rejected by the System and may be filed conventionally if the filer cannot break the document into segments of not more than 10 megabytes. As an estimate, PDF documents produced by converting a normal text file using conversion software can yield between 300 and 500 pages per 1 megabyte depending on the software used; scanned documents will yield considerably fewer pages (approximately one-tenth the number of pages depending on the scanner settings). Documents with color and graphics may yield even fewer pages. D. SYSTEM AVAILABILITY The court’s System is designed to provide service 24 hours a day. The parties, however, are encouraged to file documents in advance of filing deadlines and during normal business hours. Several judges restrict filing times to normal business hours of the Clerk of Court, 8:30 a.m. to 4:30 p.m. Restrictions are listed on the webpages of the individual judges which can be accessed on the court’s Internet site at www.alnd.uscourts.gov. Clerk’s office staff is available to respond to questions regarding the electronic files system and the registration process and to receive voice mail messages. The criminal docket clerks are available from 8:30 a.m. to 4:30 p.m. Monday through Friday and will accept voice mail messages at any time. Calls received after 4:30 p.m. will be returned the morning of the next business day. If a party misses a filing deadline due to an inability to file electronically, the party may seek relief by filing an appropriate motion. E. SELECTION OF CASES Unless otherwise permitted by these administrative procedures or unless otherwise authorized by the assigned judge, all documents1 submitted for filing in this district after the official implementation date, currently January 1, 2005 in criminal cases, no matter when a case was originally filed, shall be filed electronically, with the following exceptions: 1The requirement that “all documents” be filed electronically includes briefs, transcripts of proceedings, and deposition transcripts used in support of motions. 3 CM/ECF Administrative Procedures – Criminal 05-18-2021 1. 2. 3. 4. 3. 4. Parties proceeding pro se shall not file electronically. Attorneys appearing in cases with pro se parties may electronically file documents and serve pro se parties conventionally. A criminal case previously filed under seal will be maintained in paper form and will not be placed on the System unless the assigned judge orders the case unsealed. Juvenile criminal matters shall not be filed electronically unless, after hearing, the court rules that the juvenile shall be tried as an adult. While registered attorneys of record will have remote access to documents in criminal cases, no public remote access will be available until further order of the court.2 Public access to docket sheets in criminal cases, however, will be available. Also, members of the public may view electronic criminal files at the public terminals in the Clerk’s office. initially grants an attorney permission A registered CM/ECF filer may apply in a particular case to the assigned judge for permission to file documents conventionally. Even if the assigned judge file documents conventionally, the assigned judge may withdraw that permission at any time during the pendency of a case and require that subsequent documents be filed electronically using the System. to The Clerk’s office or any judge of this court may deviate from the requirements of these procedures in specific cases, without prior notice, if deemed appropriate in the exercise of discretion, considering the need for the just, speedy, and inexpensive determination of matters pending before the court. The court may also amend these procedures at any time without prior notice. The most current version of Criminal Administrative Procedures can always be found on the court’s website at www.alnd.uscourts.gov. F. REGISTRATION 1. Each attorney who wishes to practice in this court will register for CM/ECF Electronic Noticing. The Attorney Update and Registration for E-Noticing form is available on the court’s website at http://www.alnd.uscourts.gov; click on the CM/ECF link. 2 On March 13, 2002, the Judicial Conference of the United States approved an exception to the prohibition on public access to criminal case records. In a high-profile criminal case where the demand for documents will “impose extraordinary demands on a court’s resources,” that court is authorized to provide Internet access to criminal case files “if all parties consent and the trial judge or presiding judge of an appellate panel finds that such access would be warranted.” On September 19, 2001, the Judicial Conference determined that the policy restricting remote public access to criminal records would be “re-examined within the next two year.” 4 CM/ECF Administrative Procedures – Criminal 05-18-2021 2. 3. 4. 5. 6. 7. 8. The court will issue logins and passwords to attorneys in good standing in the Northern District of Alabama. To be in good standing, an attorney must meet the requirements in N.D. ALA. LR 83.1. The login assigned will correspond to the attorney’s Alabama State Bar identification number. The initial password will be assigned by the court. Attorneys should change their password as soon as possible after registering. The court will issue logins and passwords to attorneys practicing pro hac vice in the Northern District of Alabama. The login assigned will correspond to the Bar identification number assigned in his/her state of residence. Attorneys should contact the Clerk’s office to resolve any question regarding assignment of the login. To ensure that the Clerk’s office has correctly entered a registering attorney’s email address in the System, the Clerk’s office will send the attorney an email message after the registration is processed. The user must reply to the email for confirmation to activate the account. Each attorney filing electronically must complete and submit an Attorney Electronic Filing Registration Form. The form is available on the court’s website at http://www.alnd.uscourts.gov; click on the CM/ECF link. Once registered, attorneys may withdraw from participating in CM/ECF only with permission from the court for good cause shown. Upon entry of an order withdrawing an attorney, the Clerk’s office will immediately cancel the attorney’s password and delete the attorney’s name from applicable electronic service lists. After registering, attorneys should change their passwords. If an attorney has information that the security of an existing password may have been compromised, the attorney should immediately change his or her password and notify the Clerk’s office about the potential breach of security. An attorney whose email address, mailing address, telephone or fax number has changed shall timely file a Notice of Change of Address with the Clerk of Court who will effectuate the change in every active case in which that attorney is attorney of record. The Clerk’s office will update the account of counsel in the System. This update will be effected with the electronic filing of a Notice of Change of Address. Training materials and instruction are provided as part of the CM/ECF Electronic Filing Registration. A PACER login is required in addition to the CM/ECF login and password issued by the court in order to file electronically and to access the System. To register for PACER, a user must complete the online form or submit a the PACER website at http://pacer.psc.uscourts.gov. form, available on registration 5 CM/ECF Administrative Procedures – Criminal 05-18-2021 G. LOGIN AND PASSWORD Each attorney admitted to practice in the Northern District of Alabama shall be entitled to one login and password from the District Court. The login and password permit the attorney to participate in the electronic retrieval and filing of pleadings and other papers. 1. 2. 3. 4. 5. No attorney shall knowingly permit or cause to permit his or her password to be utilized by anyone other than an authorized employee of his or her office. Once registered, the attorney shall be responsible for all documents filed with his or her password. Registration for a login and password is governed by Section I(F). An attorney admitted pro hac vice must register for a login and password in accordance with these Administrative Procedures. The $50 fee may be paid online via Pay.gov during the filing of the event or mailed to the Clerk at the time the motion for pro hac vice admission is electronically filed. To comply with CM/ECF requirements, the password must consist of (a) at least eight characters, (b) contain both uppercase and lowercase characters, and (c) contain at least one numeral or special character (such as $, %, #, *, &, ?). II. ELECTRONIC FILING AND SERVICE OF DOCUMENTS A. FILING 1. 2. Electronically filed documents must meet the requirements of Rule 47 of the Federal Rules of Criminal Procedure. All charging documents (complaint, information, indictment, Rule 20 order) must be filed in conventional paper format. The Clerk will maintain the paper documents as required by records management rules. The Clerk will scan the initiating charging document, save it to PDF format and electronically file it in the System. All subsequent pleadings, motions, applications, briefs, memoranda of law, deposition transcripts, transcripts of proceedings, or other miscellaneous documents in a case shall be electronically filed in the System except as otherwise provided by these administrative procedures. Emailing a document to the Clerk’s office or to the assigned judge shall not constitute “filing” of the document. A document shall not be considered filed for purposes of the Federal Rules of Criminal Procedure until the filing party receives a System-generated “Notice of Electronic Filing” described in Section II(B)1 of these procedures. 6 CM/ECF Administrative Procedures – Criminal 05-18-2021 3. 4. 5. 6. Pleadings or documents will be deemed timely filed on any particular date if filed prior to midnight on that date unless otherwise limited by order of this court. The time of filing is governed by the Notice of Electronic Filing which is generated after the document is uploaded to the court’s CM/ECF server. Counsel should be aware that, in the case of large electronic filings initiated close to midnight, the filing may not be completed by midnight. Extensions of time and allowances for late filings are permitted only by the judicial officer. Documents which require leave of court shall be attached as an exhibit to the motion for leave to file as set out in Section IV(B). If the court grants the motion, the attorney must electronically file an exact duplicate of the attachment. Attachments and exhibits larger than 10 megabytes may be filed electronically in separate 10 megabyte segments. Documents and exhibits which cannot be produced in digital format may be filed in paper format with conventional service on opposing counsel. Lengthy documents submitted to the Clerk’s office in paper form shall not be bound or stapled or paper clipped, but rather, shall be held together by removable spring binding clips. The filing party must additionally file an electronic notice of filing of paper documents in the CM/ECF system. The Clerk’s office shall not maintain a paper court file in any case begun after the effective date of these procedures except as otherwise provided in these procedures. The official court record shall be the electronic file maintained on the court’s servers. The official record shall include, however, any conventional documents or exhibits filed in accordance with these procedures. 7. For all filings electronic or conventional, the style of the criminal case number on the face of the document shall read as follows: [Division#]:[2-digit year]-cr-[case #][Initials of presiding judge][Initials of referral judge] Division numbers: 1-Eastern, 2-Southern, 3-Northwestern, 4-Middle, 5-Northeastern, 6-Jasper, 7-Western For example, 2:04-cr-500-LSC-SGC is the court’s 500th criminal case filed in 2004. The case was filed in the Southern Division and is assigned to Judge Coogler and referred to Magistrate Judge Cornelius. The system will read case number with or without dashes and will find the case with only the year and number. 7 CM/ECF Administrative Procedures – Criminal 05-18-2021 8. Pursuant to the policy set forth in Rule 13 of the Model Local Rules for Electronic Case Filing, endorsed by the Judicial Conference in October 2005, a hyperlink contained in a filing is no more than a convenient mechanism for accessing material cited in a document. A hyperlink reference is extraneous to a filed document and is not a part of the court’s record. In order to preserve the integrity of the court record, users wishing to insert hyperlinks in court filings shall continue to use the conventional citation method for the cited authority, in addition to the hyperlink. Hyperlinks are only permissible for legal references and citations and are not to include advertisements. The court may direct the Clerk to strike any pleading which contains an inappropriate hyperlink. 9. Filing a Document Containing Redactions Unless redacted properly, redactions in pdf documents can be revealed using Adobe Acrobat Pro, even after the document has been filed electronically in the CM/ECF system. Adobe provides an overview of how to redact link: documents and remove sensitive https://helpx.adobe.com/acrobat/using/removing-sensitive-content-pdfs.html information at the following Here is an additional link for assistance with handling redactions in a pdf document: https://lawyerist.com/how-to-redact-a-pdf/ To properly make redactions that cannot be revealed, use the following steps: First, open the document you wish to redact in Acrobat Pro, go to the Tools menu, then select Redact. Doing so will bring up the redaction tools when you return to your document. Select Mark for Redaction and Adobe will remind you that redacting is a two-step process. In the document, highlight the text you want to redact and Acrobat will outline it in red. Then click Apply to redact the highlighted text. Acrobat will ask if you are sure you want the material redacted. If so, click OK. The second step of the two-step process is to remove metadata regarding the redacted text. After you click OK, Acrobat will then ask you if you want to find and remove any other hidden information. You should always say Yes to this. Acrobat is asking if you want to remove the metadata, and you always want to remove the metadata. Alternatively, to assure that redactions cannot be revealed once a document is filed in CM/ECF, the document should be printed and the redactions made with a black marker. The marked document can then be scanned and the resulting pdf can be filed in CM/ECF. 8 CM/ECF Administrative Procedures – Criminal 05-18-2021 B. SERVICE 1. 2. 3. 4. Whenever a pleading or other paper is filed electronically in accordance with these procedures, the System shall generate a NEF to the filing party and to any other party who is a registered user and has requested electronic notice in that case.3 (a) If the recipient is a registered participant in the System, the System’s emailing of the NEF shall be the equivalent of service of the pleading or other paper by hand delivery. (b) Service of the NEF on a party who is not a registered participant in the System may be accomplished by email, subject to the additional service requirements of paragraph B(3) below. A certificate of service on all parties entitled to service or notice is still required when a party files a document electronically. The certificate must state the manner in which service or notice was accomplished on each party so entitled. Sample language for a certificate of service is attached to these procedures as Form A. A party who is not a registered participant of the System is entitled to a paper copy of any electronically filed pleading, document, or order. The filing party must therefore provide the non-registered party with the pleading, document, or order according to the Federal Rules of Criminal Procedure. When mailing paper copies of documents that have been electronically filed, the filing party must include the NEF to provide the recipient with proof of the filing. A filer who elects to bring a document to the Clerk’s office for scanning and uploading to the System due to technical difficulties, must serve conventional copies on all non-registered parties to the case. Some delay in the uploading and subsequent electronic noticing of the document may be expected. If time of receipt by opposing counsel is an issue, filers should consider paper service or notice by an alternate means on registered parties, such as email or fax. C. SIGNATURES AND AFFIDAVITS 1. A pleading or other document requiring an attorney’s signature shall be signed personally if submitted in paper format or signed in electronic format 3To determine whether another party is a registered user, the filer can select the System’s “Utilities” category, and then click on “Mailing Information for a Case” on the pull-down menu. The filer then enters the case number and the System information will appear, stating whether or not the filer must mail a copy or if the System will electronically generate one. 9 CM/ECF Administrative Procedures – Criminal 05-18-2021 with digital signature or “s/(attorney name).” The correct format for an attorney signature is as follows: [or electronic signature] s/E. Cape Able Able Attorney Bar Number: 12345 Attorney for (Government/Defendant) ABC Law Firm 123 Biscuit Street Birmingham, Alabama 35203 Telephone: (205) 123-4567 Fax: (205) 123-7654 Email: [email protected] 2. Documents that must contain original signatures, such as affidavits, contracts, bonds, etc., or which require either verification or an unsworn declaration under any rule or statute, shall be filed electronically with originally executed copies maintained by the filer. The electronic filing must include a certificate that the filer currently holds the original signature document complete with all the legal formalities. The pleading or other document electronically filed shall indicate a signature, e.g., “s/Jane Doe,” or the original may be scanned and electronically filed in the ECF System. The filing party or attorney shall retain the hard copy of the document containing the original signatures for at least one (1) year after expiration of all time periods for appeals, or resolution of appeals, whichever is later. 3. In the case of a stipulation or other document to be signed by two or more persons, the following procedure should be used: Documents requiring signatures of more than one party shall be filed by submitting a scanned document containing all necessary signatures. D. FEES PAYABLE TO THE CLERK Any fee required for filing a pleading or paper in District Court is payable to the Clerk of the Court by check, money order, or cash. The Clerk’s office will document receipt of fees on the docket with a text-only entry. The court will not maintain electronic billing or debit accounts for lawyers or law firms. E. ORDERS 1. The assigned judge or the Clerk’s office shall electronically file all signed orders. Any order signed electronically has the same force and effect as if the judge’s signature was affixed to a paper copy of the order and it had been entered on the docket conventionally. 10 CM/ECF Administrative Procedures – Criminal 05-18-2021 2. 3. The court will fax or mail copies of orders entered electronically to pro se parties who are not registered participants of the CM/ECF System. Submitting Proposed Orders Proposed orders may be electronically submitted directly to chambers as an attachment to an email and not submitted electronically through the court’s CM/ECF System. The email should include the case number and style in the subject line. Attorneys are encouraged to send proposed orders directly to chambers in Word or WordPerfect format. Special email addresses for each judge are listed on the court’s website. If the judge approves the proposed order, it will be electronically signed and filed in CM/ECF by court staff. (a) A filing party moving for issuance of a writ, warrant, or summons should advise the judge if a prompt ruling is required. Any proposed writ or summons should be emailed directly to chambers in WordPerfect or Word format. (b) A motion to file documents under seal shall be made in the manner specified in paragraph III(A) of these procedures. 4. Filing Proposed Documents If leave of court is required before a party may file a document, the proposed document shall be attached as an exhibit to the motion requesting leave of court. If the court grants the motion, the attorney must file electronically an exact duplicate of the proposed document into the System. F. TITLE OF DOCKET ENTRIES The party electronically filing a pleading or other document shall be responsible for designating a docket entry title for the document by using one of the docket event categories prescribed by the court.4 G. CORRECTING DOCKET ENTRIES 1. Once a document is filed electronically and becomes part of the case docket, corrections to the docket are made only by the Clerk’s office. The System will not permit the filing party to make changes to the document(s) or docket entry filed in error once the transaction has been accepted and the Notice of Electronic Filing has been displayed. 4Readers may view the ACM/ECF Criminal Menu for Attorneys@ on the CM/ECF link on the court’s website: www.alnd.uscourts.gov. 11 CM/ECF Administrative Procedures – Criminal 05-18-2021 2. 3. 4. A document incorrectly filed in a case may be the result of posting the wrong PDF file to a docket entry, selecting the wrong document type from the menu, or entering the wrong case number and not catching the error before the transaction is completed. The filing party should not attempt to re-file the document. As soon as possible after an error is discovered, the filing party should contact the Clerk’s office with the case number and document number for which the correction is being requested. If appropriate, the court will make an entry indicating that the document was filed in error. The filing party will be advised if the document needs to be re-filed. The Clerk will correct filing-process errors, such as errors related to case numbers, document-type selection, filing in the wrong case, and obviously erroneous filings, but will not remove or correct documents correctly filed in a case simply because counsel requests removal or correction for reasons unrelated to errors in the process of electronic filing. H. TECHNICAL FAILURES 1. 2. 3. The Clerk’s office shall deem the Northern District of Alabama CM/ECF site to be subject to a technical failure on a given day if the site is unable to accept filings continuously or intermittently over the course of any period of time greater than one hour after 10:00 a.m. that day. Scheduled maintenance outages of the system will be posted on the website prior to the outage. Technical problems encountered by the filer, such as phone line problems, problems with the filer’s Internet Service Provider (“ISP”), or hardware or software problems, will not constitute a technical failure under these procedures nor excuse an untimely filing. A filer who cannot file a document electronically because of his own technical problems may bring a disk to the Clerk’s office for filing. A filing party whose filing is made untimely as the result of a technical failure of the court’s CM/ECF site may seek relief from the court by filing an appropriate motion. 12 CM/ECF Administrative Procedures – Criminal 05-18-2021 I. PRIVACY To address the privacy concerns created by Internet access, you should not include certain types of sensitive information in any document filed with the court unless such inclusion is necessary and relevant to the case. You must remember that any personal information not otherwise protected will be made available over the Internet via CM/ECF. If sensitive information must be included, the following five (5) personal data identifiers must be redacted from electronically filed documents, unless otherwise ordered by the court: 1. 2. 3. 4. 5. Social Security numbers. If an individual’s social security number must be included in a document, only the last four digits of that number should be used. Names of minor children. If the involvement of a minor child must be mentioned, only the initials of that child should be used. Dates of birth. If an individual’s date of birth must be included in a document, only the year should be used. Financial account numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used. Addresses of Individuals. If the address of an individual is relevant, only the city and state should be used. In compliance with the E-Government Act of 2002, a party wishing to file a document containing the personal data identifiers specified above may file, with leave of court, an un-redacted document under seal. This document shall be retained by the court as part of the record. The court, however, will require a redacted version of the pleading to be filed electronically for the public file. Caution is recommended with regard to other personal identifiers, such as driver’s license, medical records, treatment and diagnosis, employment history, individual financial information, and proprietary or trade secret information. Counsel is strongly urged to share this information with all clients so that an informed decision about inclusion of materials may be made. It is the sole responsibility of counsel and the parties to ensure that redaction of personal identifiers is done. The Clerk will not review each pleading for compliance with the rule. 13 CM/ECF Administrative Procedures – Criminal 05-18-2021 III. CONVENTIONAL FILING OF DOCUMENTS The following procedures govern documents filed conventionally. The court, upon application, may also authorize conventional filing of other documents otherwise subject to these procedures. A. DOCUMENTS TO BE FILED UNDER SEAL Before a document is filed under seal, the filing party first must obtain permission from a judicial officer by filing a motion or application seeking leave to file a sealed document. At the same time, the document(s) proposed to be sealed is to be submitted to the Clerk in conventional paper format with a PDF copy of the document(s) on a disk. A party must electronically file the motion or application for leave to file documents under seal, but the filer should not electronically attach the document(s) proposed to be sealed. A motion or application for leave to file documents under seal which is not filed electronically shall be presented in conventional paper format to the Clerk’s office, together with a PDF version of the motion and sealed document(s) on a disk, along with a proposed order in paper format. If the motion or application is granted, the assigned judge, or designee, will enter an order authorizing the filing of the document(s) under seal, and the Clerk will file electronically the PDF version of the sealed document(s). The filer should not undertake to electronically file the sealed document(s). Documents so filed will be available for viewing only by counsel in the case and court staff assigned to the presiding judicial officer(s). Counsel must serve copies of seal documents on opposing counsel by mail. B. PRO SE LITIGANTS Pro se litigants shall conventionally file paper originals of all pleadings, motions, affidavits, briefs, and other documents which must be signed or which require either verification or an unsworn declaration under any rule or statute. The Clerk’s office will scan and file the document electronically and retain the paper original. The official court record will be the electronic file maintained on the court’s servers. C. SERVICE OF CONVENTIONAL FILINGS A filer who files documents conventionally, pursuant to these Administrative Procedures, by bringing a document to the Clerk’s office for scanning and uploading to the System must serve conventional copies on all non-registered parties to the case in accordance with the Federal Rules of Criminal Procedure. Some delay in the uploading and subsequent electronic noticing of the document may be expected. If time of receipt by opposing counsel is an issue, filers should serve paper copies on registered parties conventionally or by alternate means, such as email or fax. 14 CM/ECF Administrative Procedures – Criminal 05-18-2021 D. RETENTION OF ORIGINALS OF DOCUMENTS REQUIRING SCANNING Originals of documents which have been scanned by counsel and filed electronically must be retained by the filing party and made available upon request to the court and other parties for a period of at least one (1) year following the expiration of all time periods for appeals, or resolution of appeals, whichever is later. E. COPY REQUIREMENT FOR OVERSIZE DOCUMENTS For all electronic filings of twenty-five (25) pages or more, counsel is required to supply one conventional (paper) copy of the filing to the Clerk of Court. Such paper copies of the documents are to be submitted to the Clerk’s office, not to chambers, within twenty-four hours after the electronic filing. The electronically filed document shall remain the official filing, and any discrepancy between it and the paper copy is resolved in favor of the electronically filed version. Some judges have waived this requirement with selected filings which can be determined by reviewing the judge’s personal webpage linked to the court’s webpage. F. WAIVERS OF ARRAIGNMENT A Waiver of Arraignment and Plea of Not Guilty as authorized by Rule 10(b) of the Federal Rules of Criminal Procedure, is not effective if filed electronically and will not excuse a defendant or counsel from appearing if notified to appear for arraignment. A waiver under Rule 10(b)(2) is not effective until accepted and approved by the court (Rule 10(b)(3 . A document styled as a Waiver is a legal nullity unless and until accepted by the court. The only circumstance under which a written Waiver of Arraignment and Plea of Not Guilty has been accepted by the court has involved a superseding indictment in which there has been no substantive change to the charge made against a waiving defendant. The Waiver of Arraignment and Plea of Not Guilty must be on a paper form provided directly to counsel by a judge of this court, and signed by both counsel and the defendant. The Waiver of Arraignment and Plea of Not Guilty is to be returned directly to the chambers of the judge providing the form, not filed with the Clerk of the Court. The waiver is valid only upon its acceptance by the court as certified by the judge=s signature on the same form which contains the original signatures of both the defendant and defendant=s counsel. No other method of waiver of arraignment and plea of not guilty pursuant to Rule 10 has been or will be accepted by the United States District Court for the Northern District of Alabama without special order. IV. EXHIBITS A. ATTACHMENTS/EVIDENCE NOT IN SUPPORT OF A MOTION This section applies to exhibits other than those submitted in support of a motion. Exhibits submitted in support of a motion are governed by Section IV(B) of these procedures. 15 CM/ECF Administrative Procedures – Criminal 05-18-2021 1. 2. 3. 4. 5. Attachments and exhibits to documents which are too large to convert to a usable electronic format, such as books, large color pictures or old documents of poor quality, may be conventionally filed with the Clerk and served on opposing counsel. The conventional charging document or electronically filed document with exhibits must include a statement that the attachments and/or exhibits are being conventionally filed. Documents so filed shall be retained by the Clerk in accordance with the records management guide. If possible, a filing party should electronically image, i.e., “scan,” a paper exhibit that is fewer than 10 megabytes and submit the exhibit as a PDF file. Because PDF files containing scanned documents take up considerably more space on the System than PDF files containing electronically generated documents, filing parties may submit PDF files containing scanned documents of more than 10 megabytes only if they are filed in separate 10-megabyte segments. Electronically filed documents with large attachments and/or exhibits must attach an appendix clearly identifying the exhibits and attachments. Additionally, each PDF attachment of exhibits or evidence should clearly identify the content in the description field on the electronic filing. If the scanner is set to scan in color, documents will take much longer to upload; filing parties should configure their scanners to scan documents at 200 dpi and in black and white, not in color. Documents appearing in color in their original form, such as color photographs, may be scanned in color and then uploaded to the System. The filing party must verify the readability of scanned documents before filing them electronically with the court. Exhibits submitted conventionally shall be served on other parties conventionally. B. EVIDENCE IN SUPPORT OF OR IN OPPOSITION TO A MOTION 1. 2. A party electronically submitting evidentiary materials to the Clerk’s office in support of, or in opposition to, a motion shall reference the base motion being supported or opposed in the caption of the pleading and include as the first attachment an index listing each item of evidence being filed. Attachments and exhibits which are too large to file electronically shall be filed in accordance with Sections IV(A)(1)&(2). If possible, filing parties should electronically image, i.e., “scan,” a paper exhibit and attach the resulting PDF file(s) to the electronically filed motion if the attached files are no more than 10 megabytes each. Note that multiple files can be attached to a filing, so long as each does not exceed the 10 megabyte limitation. 16 CM/ECF Administrative Procedures – Criminal 05-18-2021 Each separate file attachment must be clearly identified in the index of the attachment for easy recognition. If the scanner is set to scan in color, documents will take much longer to upload; filing parties should configure their scanners to scan documents at 200 dpi and in black and white, not in color. Documents appearing in color in their original form, such as color photographs, may be scanned in color and then uploaded to the System. The filing party is required to verify the readability of scanned documents before filing them electronically with the court. A party submitting evidentiary materials in conventional format shall also file in conventional format an index of evidence listing each item of evidence being filed and identifying the motion to which it relates. Lengthy documents submitted to the Clerk=s office in paper form shall not be bound or stapled or paper clipped, but rather, shall be held together by removable spring binding clips. Copies of conventionally filed supporting materials shall be served on other parties conventionally. 3. 4. 5. 6. C. TRIAL AND HEARING EXHIBITS Effective December 1, 2016, the United States Court of Appeals for the Eleventh Circuit adopted changes to its Local Rules and Internal Operating Procedures that impact the manner in which trial or hearing exhibits are transmitted to the court of appeals in connection with appeals. For purposes of CM/ECF, there are three (3) important requirements: • • • “The district court clerk must include in the electronic record on appeal electronic versions of all documentary exhibits admitted into evidence at trial or any evidentiary hearing”; “If documentary exhibits have been sealed or marked confidential by the district court or the district court clerk, the district court clerk must transmit any such sealed or confidential documentary exhibits to this court either in their original form or in electronic form provided the electronic access is appropriately restricted,…”; and “As to non-documentary physical exhibits, the parties are required to include photographs or other reproductions of such exhibits in the electronic record on appeal.” 1. In order to comply with the Eleventh Circuit’s requirements, beginning December 1, 2016, counsel offering any documentary exhibit at a trial or 17 CM/ECF Administrative Procedures – Criminal 05-18-2021 hearing must supply the courtroom deputy assigned to the trial or hearing a full, complete, and unaltered electronic version of each offered documentary exhibit, scanned or created in PDF format. (Counsel should refer to paragraph I(C)(2) of this Administrative Procedures Manual for specifications related to scanning and creating PDF-formatted files). To enable the courtroom deputy to electronically docket each separate exhibit, each exhibit shall be a separate PDF-formatted electronic file (i.e., trial or hearing exhibits should NOT be combined in one large PDF file). At the beginning of the trial or hearing, counsel must supply the courtroom deputy with a disk or other electronic medium on which such separate exhibit files have been stored so that the courtroom deputy may upload each such exhibit file to CM/ECF at the conclusion of the trial or hearing. The labeling of each electronic exhibit file must correspond to the exhibit number or other identification on the documentary exhibit. If counsel offers an exhibit for which he or she has not supplied an electronic version at the beginning of the trial or hearing, counsel shall provide such an electronic version before the end of the proceeding. In the event counsel desires to keep an exhibit confidential or sealed, counsel should bring that to the attention of the court and the courtroom deputy so that appropriate docketing can occur. For every non-documentary physical exhibit, counsel must supply the courtroom deputy with one or more unaltered and unannotated photographs, drawings, diagrams, or other depictions of the exhibit, scanned or created in PDF format for electronic filing. Multiple photographs, drawings, diagrams, or depictions of the same physical exhibit may be combined into one PDF-formatted file, but separate electronic files will be provided for each separate exhibit. At the beginning of a trial or hearing, counsel shall provide the courtroom deputy with a disk or other electronic medium on which such PDF-formatted electronic files depicting physical exhibits have been stored. The courtroom deputy will upload and docket into CM/ECF the electronic files related to admitted exhibits at the conclusion of the trial or hearing. The labeling of each electronic exhibit file must correspond to the exhibit number or other identification on the physical exhibit. If counsel offers an exhibit for which he or she has not supplied an electronic depiction at the beginning of the trial or hearing, counsel shall provide such an electronic depiction before the end of the proceeding. Counsel may request that the court instruct the courtroom deputy to upload and docket a documentary exhibit or depictions of a physical exhibit not admitted into evidence by the court for purposes of preserving for appeal an 18 2. 3. 4. 5. 6. CM/ECF Administrative Procedures – Criminal 05-18-2021 offer of proof as to such an exhibit, but such exhibit shall not be displayed to or revealed to the jury. V. PUBLIC ACCESS TO THE SYSTEM DOCKET A. PUBLIC ACCESS AT THE COURT Electronic access to the electronic docket and documents filed in the System is available at no charge at the Clerk’s office during regular business hours. A copy fee for an electronic reproduction is required in accordance with 28 U.S.C. § 1930. B. INTERNET ACCESS 1. 2. 3. Remote electronic access to the System for viewing purposes is limited to subscribers to the Public Access to Court Electronic Records (“PACER”) system. The Judicial Conference of the United States has ruled that a user fee will be charged for remotely accessing certain detailed case information, such as filed documents and docket sheets in criminal cases, but excluding review of calendars and similar general information.5 Until further order of the court, no one but an attorney of record may remotely view records in criminal cases. Public remote access will be limited to viewing docket sheets only. An exception to the prohibition on public remote access to criminal case filings is possible in a high-profile criminal case where the demand for documents will impose extraordinary demands on the court’s resources. The district court is authorized to provide Internet access to the documents filed in that case if all parties consent and the trial judge finds that such access is warranted. C. CONVENTIONAL COPIES AND CERTIFIED COPIES Conventional copies and certified copies of electronically filed documents may be purchased at the Clerk’s office. The fee for copying and certifying will be in accordance with 28 U.S.C. § 1914. 5According to a memorandum from the Administrative Office of the United States Courts dated April 9, 2002, non-judiciary CM/ECF users will be charged a fee of seven cents per page starting on July 1, 2002, to access electronic data such as docket sheets and case documents obtained remotely through the PACER system. The maximum charge per document is $2.10. The access fee does not apply to official recipients of electronic documents, i.e., parties legally required to receive service or to whom service is directed by the filer in the context of service under Federal Rules of Criminal Procedure. Official recipients will receive the initial electronic copy of a document free to download as they see fit, but if they remotely access the document again, they will be charged seven cents a page. 19 CM/ECF Administrative Procedures – Criminal 05-18-2021 FORM ATTACHMENT 20 CM/ECF Administrative Procedures – Criminal 05-18-2021 FORM A S A M P L E F O R M A T IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION UNITED STATES OF AMERICA vs. Defendant. Case No. 2:04-cr-500-LSC-SGC CERTIFICATE OF SERVICE I hereby certify that on (Date), I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: ____________________________________________, and I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants:_________ ______________________________. Respectfully submitted, s/[Name of Password Registrant] Name of Password Registrant Address City, State, Zip Code Phone: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: [email protected] [attorney bar number, if applicable] 21
=== View ===
INITIAL ORDER1 Unless expressly directed otherwise, the parties SHALL comply with all provisions of this Initial Order in the litigation of this action. 1. Compliance with Rule 26. Within thirty (30) days of entry of this order, the parties must confer pursuant to Federal Rule of Civil Procedure 26(f).2 During their Rule 26(f) conference, the parties SHALL discuss all appropriate matters necessary to submit a Rule 26 Report to the court, including the following topics: • • • • • • the nature of the claims and defenses; the possibility (and likelihood) of a prompt settlement or resolution of the case through formal mediation or informal settlement negotiations; arrangements for initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1); preservation of discoverable information and the steps necessary to do so; a proposed discovery plan that briefly describes the parties’ respective positions and provides proposed deadlines for the matters addressed in sub-paragraphs (A) through (F) of Rule 26(f)(3); execution of authorization(s) for disclosure of “protected health information” in any case in which the provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996), and regulations promulgated under the Act, apply;3 and 1 The court has recently revised the Initial Order and attachments. 2 Federal Rule of Civil Procedure 26(f)(2) provides: “[T]he court may order the parties or attorneys to attend the conference in person.” Fed. R. Civ. P. 26(f)(2). The court requires the parties to meet in person, absent exceptional circumstances. Counsel for the parties may confer over the telephone if they obtain permission from the court to do so. In the court’s experience, in-person meetings facilitate a good working relationship between/among counsel and offer a variety of other benefits. 3 If the parties require a HIPAA Protective Order, they may find a draft order at the court’s website. The parties should tailor a draft order to their case and email the draft order to the chambers’ email address (see above) for the court’s consideration. • any other appropriate issues or items that will advance this litigation. See Fed. R. Civ. P. 1. 2. Time and Place of Parties’ Planning Meeting. If the parties are unable to agree upon a date, time, or place for their Rule 26(f) conference, on or before the deadline to conduct the Rule 26(f) conference, the parties SHALL email chambers at [email protected], and the court will set a date, time, and place for the Rule 26(f) conference. 3. Parties’ Planning Report. Within fourteen (14) days of the Rule 26(f) meeting, the parties must file a joint report of their planning meeting. The report should include the following: a brief description of the nature of the case; a synopsis of the case and the claims and defenses of the parties; an indication of the parties’ assessment of the complexity of the case; a list of proposed deadlines for discovery and dispositive motions; proposed limits on the number of discovery requests and a statement of the reasons why the parties believe the proposed limits are proportional to the needs of the case (see Fed. R. Civ. P. 26(b)(1)-(2 ; a statement regarding the parties’ initial interest in Alternative Dispute Resolution (see para. 17 infra); and the other items listed above. Should the parties disagree about an item, the positions of the parties as to that item should be clearly set forth in separate paragraphs. 4. Rule 16(b) Scheduling Conference. Upon receipt of the report, the court will schedule a Rule 16(b) scheduling conference, and enter a scheduling order after the conference. If for some reason the court does not set a Rule 16(b) scheduling conference, the court will enter a scheduling order as soon as possible after reviewing the parties’ report. 5. Discovery Commencement. The parties may commence discovery pursuant to the terms of Federal Rule of Civil Procedure 26 immediately after they file a Rule 26(f) report. In cases removed from state court in which discovery requests were served before removal, those 2 discovery requests SHALL be deemed to have been served on the date the parties file their Rule 26 report. 6. Discovery Disputes. The parties SHALL meet and confer regarding all discovery disputes. If the parties are unable to resolve issues relating to discovery, rather than filing a motion to compel (or other discovery motion), the parties SHALL request a conference with the court by either calling chambers or emailing chambers at [email protected]. These conferences may be held by telephone unless the parties request a hearing or in-person conference with the court or the court deems an in-person conference appropriate. 7. CM/ECF Record. The official record of this case is maintained electronically via CM/ECF. Except in extraordinary circumstances, all filings SHALL be consistent with the Court’s Administrative Procedures Manual. Attorneys must register for electronic filing and service through the “Attorney Registration” link on the court’s website, www.alnd.uscourts.gov.4 Documents filed through CM/ECF must be in .pdf (Portable Document Format). Should counsel have trouble filing a document, counsel may call the Clerk’s Office at (205) 278-1700 and select option 3, the Help Desk, for assistance. 8. Protected Information. Counsel are REMINDED to comply with the Court’s Administrative Procedures Manual for electronic filing (on the court’s website) and Rule 5.2 with respect to redacting or sealing personal identifiers (e.g., Social Security numbers, driver’s license numbers, birth dates, addresses, telephone numbers, bank account and credit card information) and other personal or sensitive information, in compliance with the E-Government Act. 9. Protective Orders. If parties anticipate that confidential information will be exchanged during the course of litigation, the parties may invoke the court’s standard Protective 4 After an attorney has registered, that registration becomes permanent; an attorney is not required to re- register in each individual case. 3 Order, which is attached to this order as Appendix III. The parties may either (1) request entry of the Protective Order in their Rule 26(f) planning meeting report or (2) file a motion with the court. The parties are free to discuss and enter into additional or different stipulations regarding their treatment of Confidential Information. However, the restrictions imposed by the court’s standard Protective Order may only be modified or terminated by order of the court, with good cause shown. 10. Required Electronic Submissions to Chambers. Counsel must e-mail to chambers copies of (1) all filed motions that exceed ten (10) pages, (2) copies of all filed briefs, and (3) copies of all proposed orders. The court requires motions, briefs, and proposed orders in Word format. The address for the undersigned judge’s chambers is [email protected]. Ex parte communications with the judge are never allowed. All communications to the chambers’ email address must show a copy to all opposing counsel. 11. Attachments to Documents Filed Through CM/ECF. All attachments to documents filed through CM/ECF SHALL bear the unique name of that attachment, not solely the corresponding exhibit letter or number. For example, an affidavit attached to a filed document should bear a name such as “Exhibit 1 – Affidavit of Fnu Lnu,” not simply “Exhibit 1.” Ordinarily, each attachment SHALL contain only one (1) individual unique document.5 12. Formatting. In creating documents for submission to the court, the parties SHALL use the Times New Roman font and 12-point type (except footnotes may be in 10-point type). Documents SHALL be double-spaced; footnotes and indented quotations that exceed three lines SHALL be single-spaced. 5 The court understands that one large document may span a number of attachments due to CM/ECF restrictions. 4 13. Citations to the Record. Citations to the record in this case SHALL refer to the CM/ECF document number, page number, and paragraph or line number (where available). If the parties are unable to cite to a specific paragraph or line number, they SHALL cite the document number and page number. For example, if a party makes citation to the first paragraph of the complaint, the citation following that discussion SHALL appear as follows: (Doc. 1, ¶ 1). If a paragraph or line number is not available, the citation would appear as follows: (Doc. 1, p. __). 14. Oral Argument. Requests for oral argument SHALL appear on the first page of a motion or brief directly below the case number in the caption of the pleading. 15. Briefing. Briefs accompanying motions and briefs in opposition to motions should not exceed twenty-five (25) pages unless advance permission is obtained from the court to exceed that limit. Reply briefs should not exceed fifteen (15) pages, absent advance permission from the court. 16. Compliance with HIPAA. In accordance with the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996), and regulations promulgated thereto, when “protected health information” is relevant to the claims or defenses presented in an action, the party seeking such “protected health information” SHALL present a valid authorization at the Rule 26 planning meeting to be executed by the party from whom such “protected health information” is sought. The parties SHALL include in their Rule 26(f) report a deadline (specific date) by which the authorization will be executed. The parties may move the court to enter a “Qualified HIPAA Protective Order.” An order in substantially the form attached to this order as Appendix I will be entered unless all parties stipulate to a different version. In that case, contemporaneously with the motion, counsel 5 should e-mail to [email protected], the proposed HIPAA order to be entered by stipulation of counsel for all parties. 17. Suitability of Action for Alternative Dispute Resolution. All parties should give early consideration to the possibility of settlement to avoid unnecessary costs and fees. The court requires that the attorneys for all parties make an early analysis of the case along with their clients and be prepared to discuss settlement at an early date. The parties SHALL also consider and discuss whether this action may be suitable for mediation, whether under the court’s ADR plan or otherwise. 18. Court Settlement Conferences. If any party thinks that a settlement conference with the court at any stage would be conducive to settlement, that party may make a written request that the court conduct such a conference. The results of all the discussions held pursuant to paragraph 16 and this paragraph SHALL be included in the report of the parties’ planning meeting to be filed with the court. 19. Notice to Client/Parties. Each attorney SHALL immediately forward a copy of the Initial Order to his or her client. Plaintiff(s)’ attorney(s) are ORDERED to immediately discuss the feasibility of settlement with Defendant(s)’ attorney(s). 20. Dismissal of Non-Served Defendants. Take Notice: Any defendant who has not been served with a summons and complaint within ninety (90) days after the filing of the complaint (or within sixty (60) days after the party was added to the action) may be dismissed without further order of the court unless prior to such time the party on whose behalf such service is required shows good cause why service has not been perfected. 6 21. Hand Deliveries. If counsel wishes to provide the court with a courtesy copy of a motion or brief,6 or if an order of this court requires submission of a copy in addition to the original, such copy SHALL be clearly identified as a “courtesy copy” and left in the Clerk’s Office for delivery to the court’s chambers. All hand deliveries, unless otherwise instructed, are to be made to the Clerk’s Office. 22. Attorney Fee Shifting Cases. If a party anticipates that during or upon the completion of this action it may for any reason (other than as a sanction under the Federal Rules of Civil Procedure) seek an award of attorneys’ fees from the opposing party pursuant to any statute or other law, the party SHALL comply with the following requirements as a precondition to any such award: (a) (b) (c) (d) Counsel SHALL maintain a separate record of time with a complete and accurate accounting of all time devoted to this particular action (to the nearest 1/10 of an hour), recorded contemporaneously with the time expended, for each attorney and with sufficient detail to disclose the nature of the work performed in the action (e.g., not just “research” but the specific matter being researched; not just “conference” but identity of persons conferring and general subject matter of the conference). If a claim will be made for services performed by any person not a member of the bar, a separate time record SHALL be maintained for each such individual in accordance with (a) above. Counsel is DIRECTED to review and verify all attorney and non- attorney time records no less than once per month. A Petition for Attorney Fees SHALL be accompanied by Counsel’s Certification that all time records are accurate; that such records were prepared contemporaneously with the performance of the work for which the fees are claimed; and that counsel reviewed and verified all attorney and non-attorney time records no less frequently than once per month. 6 Voluminous courtesy copies should be presented in a three-ring binder. 7 23. Cases That Require EEOC Charges. If this case is one in which the filing of a charge of discrimination with the Equal Employment Opportunity Commission or similar agency is required as a prerequisite to suit, unless previously attached to the complaint or other pleading, PLAINTIFF(S) SHALL file with the Clerk of Court at the time of filing the disclosures required by Rule 26(a)(1): (A) a copy of all charges of discrimination filed with the EEOC and which form the bases of the action; and (B) a copy of the EEOC’s response to all such charges of discrimination filed with that agency, including the notice of right to sue. 24. Motion Practice. The parties SHALL follow the following procedures related to motion practice before this court. A. Summary Judgment Motions. Any motion(s) for summary judgment filed in this action SHALL comply with all requirements of Appendix II to this order. B. Motions (Other than Dispositive Motions and Motions to Remand). Prior to filing any motion (other than a dispositive motion or a motion to remand) in this case, moving counsel SHALL contact the opposing counsel and determine if counsel will oppose the motion. All motions SHALL include, in the caption under the case number, a notation that the motion is either “Opposed” or “Unopposed.” The first paragraph SHALL briefly summarize the parties’ attempts to resolve the issue(s) and set forth areas of agreement and disagreement. Failure of the parties to abide by these requirements can result in a sua sponte denial of the motions for failure to comply. All non-summary judgment motions (except motions to withdraw, motions for pro hac vice admission, or joint motions) SHALL comply with Exhibit B to this Order. C. Motion of Counsel to Withdraw. Once an attorney has appeared as counsel for a party, that attorney may not withdraw from the action merely by filing a “notice of withdrawal,” but must file a motion seeking permission of the court to do so, explicitly stating the grounds 8 therefore. Any motion to withdraw which, if granted, would leave a party unrepresented by counsel SHALL include a certification that the moving attorney has served a copy of the motion on his or her client and has informed the client of the right to promptly file an objection with the court. The motion SHALL also include the notation, “Future notice to (name of party) is to be made at the following address: (state last known address of the party).” DONE and ORDERED this day of ______________, 20_____. _______________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE 9 APPENDIX I UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA Choose an item. DIVISION Plaintiff(s)., Choose an item., v. Defendant(s)., Choose an item.. } } } } } } } } } Case No.: Case Number. QUALIFIED HIPAA PROTECTIVE ORDER The parties are hereby GRANTED the right, upon compliance with the applicable discovery provisions of the Federal Rules of Civil Procedure and the orders of this court, to obtain from any health care provider, health plan, or other entity covered by the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (“HIPAA”), any and all information relating to the past, present, or future medical condition of any individual who is a party to this action (or the decedent or ward of a party who sues in a representative capacity), as well as any and all information relating to the provision of health care to such individual and payment for the provision of such health care. This order authorizes any third-party who is provided with a subpoena requesting the production of documents or commanding attendance at deposition or trial to disclose the Protected Health Information in response to such request or subpoena. This order is intended to authorize such disclosures under the privacy regulations issued pursuant to HIPAA. 45 C.F.R. § 164.512(e)(1)(i). The parties are EXPRESSLY PROHIBITED from using or disclosing the protected health information obtained pursuant to this order for any purpose other than this action. Further, the parties are ORDERED to either return to the covered entity from whom or which such protected health information was obtained, or to destroy the protected health information (including all copies made), immediately upon conclusion of this action. See 45 C.F.R. §§ 163.502(b); 164.512(e)(1)(v). DONE and ORDERED this _________ day of _______________, 20___. _________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE 2 APPENDIX II1 SUMMARY JUDGMENT REQUIREMENTS NOTICE This exhibit contains specific, mandatory instructions regarding the preparation and submission of briefs and evidentiary materials in support of and in opposition to potentially dispositive motions. These instructions must be followed explicitly. Except for good cause shown, briefs and evidentiary materials that do not conform to the following requirements may be stricken. SUBMISSION DATES The parties to the above-styled action have been or will be given a deadline for the filing of dispositive motions. Any motion for summary judgment and supporting brief and evidentiary materials will be due on or before that deadline. The responsive submission of the party opposing the motion for summary judgment SHALL be filed no later than twenty-one (21) days after the motion for summary judgment is filed. The movant’s reply submission SHALL be filed no later than fourteen (14) days after the date on which the opponent’s responsive submission is filed. To ensure that each party is afforded a full and fair opportunity to be heard, the parties must cause copies of briefs and evidentiary materials to be delivered to opposing parties without undue delay and, generally, on the same date such materials are submitted to the court. SUBMISSIONS The parties’ submissions in support of and in opposition to summary judgment motions must consist of: (1) a brief containing, in separately identified sections, (i) a statement of allegedly undisputed relevant material facts and (ii) a discussion of relevant legal authorities; and (2) copies 1 The parties should take note that the court’s requirements for briefing dispositive motions have changed. See Requirements for Evidentiary Materials, ¶ 1, pg. 5. of any evidentiary materials upon which the party relies. More detailed requirements for these submissions are explained in the following sections. REQUIREMENTS FOR BRIEFS A. Format Initial and response briefs are limited to thirty (30) pages. Reply briefs are limited to ten (10) pages. Briefs that exceed twenty (20) pages must include a table of contents that accurately reflects the organization of the document. The table of contents is not included in the page limit. The text of briefs must be double spaced (except for quotations exceeding fifty (50) words, which may be block indented from the left and right margins and single spaced) using 12-point typeface, preferably Times New Roman. B. Number Submitted The parties must electronically file their brief through the court’s CM/ECF system. The parties SHALL also email to the court’s chambers such brief in Word format. For any brief over ten (10) pages, the parties must simultaneously submit to the Clerk’s Office, for delivery to the court’s chambers by the Clerk, an exact copy of the brief, clearly identified as a “courtesy copy.” C. Binding The court’s “courtesy copy” of any brief SHALL be three-hole punched. Only particularly voluminous submissions must be in a three-ring binder. Do not submit a reply in a separate binder if the initial filing was in a binder. D. Manner of Stating Facts All briefs submitted either in support of or in opposition to a dispositive motion SHALL begin with a statement of allegedly undisputed relevant material facts which SHALL be set out in 2 separately numbered paragraphs. Counsel must state facts in clear, unambiguous, simple, declarative sentences, without argument. All statements of fact must be supported by specific reference to evidentiary submissions. 1. Moving Party’s Initial Statement of Facts The moving party SHALL list in separately numbered paragraphs each material fact the movant contends is true and not in genuine dispute, and upon which the moving party relies to demonstrate that it is entitled to summary judgment. Each such statement must be followed by a specific citation to those portions of the evidentiary record that the movant claims support it.2 2. Opposing Party’s Statement of Facts Each party opposing a summary judgment motion also SHALL submit a statement of facts divided as follows. a. Response to Movant’s Statement The first section SHALL consist of only the non-moving party’s disputes, if any, with the moving party’s claimed undisputed facts. The non-moving party’s response to the moving party’s claimed undisputed facts SHALL be in separately numbered paragraphs that coincide with those of the moving party’s claimed undisputed facts. Any statements of fact that are disputed by the non-moving party must be followed by a specific reference to those portions of the evidentiary record upon which the dispute is based. All material facts set forth in the statement required of the moving party will be deemed to be admitted for summary judgment purposes unless 2 Each statement of fact should be supported by its own evidentiary citation, regardless of the fact that more than one statement of fact allegedly is supported by the same specific reference to the evidentiary record or more than one statement of fact is contained in the same numbered paragraph. 3 controverted by the response of the party opposing summary judgment and supported by a record citation. b. Additional Undisputed Facts The second section may contain additional, allegedly undisputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The second section of the opposing party’s statement of facts, if any, SHALL be clearly designated as such.3 The opposing party should include only facts which the opposing party contends are true and not in genuine dispute. c. Additional Disputed Facts The third section may contain additional, allegedly disputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The third section of the opposing party’s statement of facts, if any, SHALL be clearly designated as such. Each statement of allegedly disputed facts must be followed by specific reference to those portions of the evidentiary record which both support and contradict the alleged fact.4 3. Moving Party’s Reply The fact section of a reply submission, if any, SHALL consist of only the moving party’s disputes, if any, with the non-moving party’s additional claimed undisputed facts. The moving 3 Each statement of fact should be supported by its own evidentiary citation, regardless of the fact that more than one statement of fact allegedly is supported by the same specific reference to the evidentiary record or more than one statement of fact is contained in the same numbered paragraph. 4 The court recognizes that, in some circumstances, a party opposing a motion for summary judgment may want to set out facts which that party claims are true and supported by evidence, but cannot, in good conscience and consistent with Rule 11, say are undisputed. In such case, the party should include a separate section of fact statements, set out in short declarative sentences and individually numbered paragraphs, which are supported by some evidence but, nevertheless, are in dispute. When doing so, however, the party should include record citations which both support and contradict the alleged fact. 4 party’s response to the non-moving party’s additional claimed undisputed facts SHALL be in separately numbered paragraphs that coincide with those of the non-moving party’s additional claimed undisputed facts. Any statements of fact that are disputed by the moving party must be followed by a specific citation to those portions of the evidentiary record upon which the disputation is based. All additional material facts set forth by the opposing parties will be deemed to be admitted for summary judgment purposes unless controverted by the statement of the movant and supported by a record citation. The court reserves the right sua sponte to STRIKE any statements of fact or responsive statements that fail to comply with these requirements. REQUIREMENTS FOR EVIDENTIARY MATERIALS To facilitate the court’s requirement that the parties cite to the CM/ECF document and page numbers, the parties must electronically file all evidentiary materials (e.g., affidavits, exhibits, depositions, or other products of discovery) relied upon in support of or opposition to summary judgment motions before they file their briefs in support of or in opposition to summary judgment. The parties may file their briefs, which SHALL contain citations to the CM/ECF document and page numbers, one business day after making their evidentiary submissions. While the court reserves the right to consider evidentiary materials that are not specifically referenced in the brief, no party has a right to assume the court will consider such materials. A specific reference must include the CM/ECF document and exhibit number, page, and when appropriate the line number. 5 A. Organization Each volume of evidentiary materials must include a table of contents that includes a brief narrative description of each document included: e.g., “Plaintiff’s Exhibit 1, the Deposition of John Jones.” For ease of citation, each affidavit, exhibit, deposition, or other product of discovery SHALL be filed on a separate exhibit in CM/ECF and be separately identified by a capital letter or numeral (i.e., “Exhibit A” or “Exhibit 1”). If the exhibit contains more than one page, each page must be separately numbered.5 Counsel are DIRECTED to submit entire depositions (condensed versions), even if relying only on excerpts. When submitting a deposition, the parties SHALL file the condensed version and must also include the word index. B. Number of Sets Submitted The parties must electronically file one set of evidentiary materials through the court’s CM/ECF system. The parties must simultaneously submit to the Clerk of Court, for delivery to the court’s chambers by the Clerk, an exact copy of the set of evidentiary materials, clearly identified as a “courtesy copy.” There must be no differences between the electronically filed materials and the “courtesy copy.” C. Binding of Courtesy Copy The court’s “courtesy copy” of any evidentiary submission SHALL be three-hole punched. Only particularly voluminous submissions must be in a three-ring binder, in separately numbered volumes, if necessary -- for ease of use and to prevent inadvertent loss of pages. 5 A reference to that exhibit in the statement of facts or brief might be, “Plaintiff’s Ex. 1, p. 41.” The court does not, however, require any specific form as long as specific page references are used. 6 APPENDIX III UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA Choose an item. DIVISION Plaintiff(s)., Choose an item., v. Defendant(s)., Choose an item.. } } } } } } } } } Case No.: Case Number. PROTECTIVE ORDER The parties recognize that various information and documents will be exchanged during the course of this litigation that may contain sensitive business, personal, proprietary, or otherwise confidential information within the meaning of Rule 26(c) of the Federal Rules of Civil Procedure. Accordingly, with the consent of the parties, the court ORDERS as follows: 1. For purposes of this Protective Order, “Confidential Information” means any documents or information, in whatever form, which the producing party or a non-party reasonably believes ( 1) not to be in the public domain and (2) to contain any confidential, proprietary, strategic, research, development, commercial, or private information. 2. When a party believes that Confidential Information may be produced or presented by any party or non-party in this case, that party may designate such material as, “CONFIDENTIAL,” at the time of production or presentation. All materials designated as Confidential Information will contain a written “CONFIDENTIAL” designation on the document. 3. Any non-party that is producing documents, information, or other material that it considers to be Confidential Information, may designate such documents, information, or other material as “CONFIDENTIAL.” Thereafter, the provisions of this Protective Order SHALL apply to the protected material. 4. For “Confidential Information” used during deposition, any party SHALL have 30 days from its receipt of the completed transcript to provide written notice to the parties of the specific pages and lines of the transcript or exhibits which contain the Confidential Information. Until expiration of the 30-day period, all parties SHALL treat the entire transcript, including exhibits, as Confidential Information subject to the protections of this Order. If no party timely designates the transcript or a portion of the transcript as Confidential Information, then the transcript will not be treated as such. 5. Confidential Information SHALL not be used or disclosed by any party or non- party bound by the terms of this Protective Order, or their respective representatives and agents, including their attorneys, for any purpose whatsoever other than in the prosecution or defense of this case (including appeals, if any). 6. Confidential Information SHALL be disclosed only to the following: a. The parties’ (or bound non-parties’) counsel and their partners, associates and employees to whom disclosure is reasonably deemed necessary to render professional services in this matter. b. A party who is bound by the terms of this Protective Order, including officers, directors, members and/or employees, but only to the extent considered reasonably necessary to render professional services in this matter. 2 c. An expert or consultant who is retained by a party (or bound non-party) or its counsel in order to assist in the conduct of this litigation. d. A witness or prospective witness in this litigation, but only to the extent reasonably necessary in preparing to testify. e. f. Court reporters while in the performance of their official duties. The judge or any other tribunal to which any appeal of the litigation is taken, including the respective staffs of the judge or such other tribunal. g. Copying services, translators, and litigation support firms providing consultation, graphics and jury research (including focus group participants). h. Other persons to whom the designating party chooses to disclose the Confidential Information. 7. All documents, briefs, and other papers containing, referring to or otherwise disclosing Confidential Information which are filed with (or otherwise submitted to) the court SHALL not be disclosed by any party except as provided in this Order. Any party seeking to seal any such materials SHALL request leave of the court, in advance, to file the materials under seal. 8. In the event that any Confidential Information is, consistent with the terms of this Protective Order, used or disclosed in any hearing or trial, such information SHALL not lose its Confidential status by reason of such use or disclosure. Counsel SHALL take all steps reasonably required to protect the confidentiality of the information during such use or disclosure. 9. Any party (or bound non-party) challenging a Confidential designation SHALL meet and confer with the other party in an attempt to resolve the dispute. If the parties are unable to resolve the dispute, the challenging party may file a motion asking the court to resolve the 3 dispute. Pending resolution by the court, the Confidential designation will remain in full force and effect. 10. If a producing party or non-party inadvertently fails to designate qualified information or documents as Confidential, such failure, standing alone, SHALL not waive the producing party’s right to secure protection under this Order. That party may subsequently designate qualified information or documents as Confidential by notifying all persons and parties to whom the materials were produced as soon as practicable. After receipt of such notification, the persons who received the production SHALL then treat the designated materials as Confidential. 11. In accordance with Rule 502(d) of the Federal Rules of Evidence, the inadvertent production of any document or item SHALL not constitute a waiver of any applicable privilege, for purposes of this litigation or any future litigation. If a party inadvertently produces information which it asserts is protected by the attorney-client privilege or work product doctrine, without intending to waive a claim of privilege, it SHALL promptly notify the receiving party of its claim of privilege. After being so notified, the receiving party SHALL promptly return or destroy the specified information and any copies. 12. Nothing in this Order SHALL be construed as a waiver by the parties of their rights to object to any request for discovery. This Protective Order SHALL not be construed as an agreement by the parties to produce any documents or information. Nothing in this Order SHALL be construed as preventing a party from challenging a confidential designation under applicable law. 13. The parties are free to discuss and enter into further stipulations regarding their treatment of Confidential Information. However, the restrictions imposed by this Protective Order 4 may only be modified or terminated by order of the court, with good cause shown. This Order SHALL survive the termination of this action. DONE and ORDERED this day of ______________, 20_____. _______________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE 5 EXHIBIT B1 Non-Summary Judgment Motion Briefing Order2 The court recognizes that a number of motions filed with the court do not require additional briefing before the court takes them under consideration. However, to the extent the parties determine that briefing is necessary on a non-summary judgment motion, or to the extent the court orders briefing on a non-summary judgment motion, the following briefing schedule and requirements for the submission of briefs are established. Briefs that do not conform to the requirements of this Order may be stricken. A. Schedule 1. Upon the filing of any non-summary judgment motion, the movant SHALL either incorporate into the motion the arguments and/or authorities upon which it relies or simultaneously file a separate brief with the initial motion. 2. The opponent’s responsive brief SHALL be filed no later than ten (10) calendar days thereafter. (NOTE: Days should be calculated without taking into account Fed. R. Civ. P. 6. However, if the due date falls on a weekend or court holiday, the due date SHALL be the next business day). 1 The designation Exhibit B carries with it a historical importance in this court. (NOTE: This is not an Exhibit A attached to the Initial Order.). 2 NOTE: The following instructions do not apply to summary judgment motions unless an order of the court specifically provides otherwise. Any motion(s) for summary judgment filed in this action shall be governed by the provisions of Appendix II to the Uniform Initial Order, which can be viewed on the court’s website at www.alnd.uscourts.gov/Proctor/ProctorsPage.htm. 3. The movant’s reply brief SHALL be filed no later than five (5) calendar days after the date on which the opponent’s responsive brief is filed. (NOTE: Days should be calculated without taking into account Fed. R. Civ. P. 6. However, if the due date falls on a weekend or court holiday, the due date SHALL be the next business day). The parties SHALL transmit their briefs preferably by email, but regardless, in such a manner that their opponents will not suffer any undue delay in the receipt of their service copies of any briefs. It is the intent of the court that each party SHALL be afforded a full and fair opportunity to be heard and counsel are expected to take care that service of copies is not unreasonably delayed.3 Upon conclusion of the submission schedule, the court may take the motion under submission without further notice to the parties and materials submitted after the close of the submission schedule will not be considered in ruling on the motion without leave of court. B. Briefs The parties SHALL electronically file their briefs through the court’s CM/ECF system and SHALL submit an exact courtesy copy of the brief to the Clerk’s office for delivery to the court’s chambers.4 The parties are then required to email their briefs, in Word format, to the chamber’s email address at [email protected]. The materials submitted to the Clerk’s office for delivery to the court’s chambers, as well as those sent via email, SHALL contain the exact same materials and only the materials which are electronically filed through the court’s 3 The opposing party should typically receive a copy of all materials on the same date that the submission is made to the court, but in no event more than one (1) business day later. 4 Deliveries are no longer accepted in the court’s chambers unless prior arrangements have been made. 2 CM/ECF system. There must be no differences between the electronically “filed” briefs and the “copy” provided to the court, except that the courtesy copy submitted for chambers must be three- hole punched. In the event of a later appeal, the court will not look favorably upon motions to supplement the record on appeal. Materials not contained in the court’s CM/ECF record are not part of the official record. The title of a brief SHALL clearly reference the motion to which it relates. The text of initial and responsive briefs SHALL not exceed twenty-five (25) pages and reply briefs are limited to ten (10) pages.5 Briefs exceeding ten (10) pages in length SHALL have incorporated therein a table of contents that accurately reflects the organization of the brief itself. Tables of Contents SHALL not be included for purposes of computing the number of pages in a brief. C. Required Certification Counsel for either party (or any individual under the direction or control of a party), signing any document, including an affidavit, in connection, either directly or indirectly, with a motion, response to such a motion, or a reply to any such response, SHALL certify by his or her personal signature and as an officer of the court that he or she has affirmatively and diligently sought to submit to the court only those documents, factual allegations, and arguments that are material to the issues to be resolved in the motion, that careful consideration has been given to the contents of all submissions to ensure that the submissions do not include vague language or an overly broad 5 Briefs must be typewritten and double spaced, using at least 12-point type. The court expects that counsel will respect the page limitation established by this order. Transparent attempts on the part of counsel to circumvent page limitations by manipulating type sizes, margins, line spacing, or other similar end runs will not be tolerated. 3 citation of evidence or misstatements of the law, and that all submissions are non-frivolous in nature. D. Oral Argument Upon receipt of a motion, the court may schedule oral argument at a separate hearing or motion docket. Oral argument may be requested by noting the request on the style of the pleading itself. Separate requests for oral argument should not be filed. The court will schedule oral argument if the court deems it necessary, helpful, or appropriate. 4
=== View ===
UNITED STATES DISTRICT COURT for the <__________________> DISTRICT OF <__________________> <Name(s) of plaintiff(s)>, Plaintiff(s) v. <Name(s) of defendant(s)>, Defendant(s Civil Action No. <Number> REPORT OF THE PARTIES’ PLANNING MEETING 1. The following persons participated in a Rule 26(f) conference on <Date> by <State the method of conferring>: <Name>, representing the <plaintiff> <Name>, representing the <defendant> 2. Initial Disclosures. The parties [have completed] [will complete by <Date>] the initial disclosures required by Rule 26(a)(1). 3. Discovery Plan. The parties propose this discovery plan: <Use separate paragraphs or subparagraphs if the parties disagree.> (a) (b) (c) (d) (e) (f) (g) (h) Discovery will be needed on these subjects: <Describe>. <Dates for commencing and completing discovery, including discovery to be commenced or completed before other discovery.> <Maximum number of interrogatories by each party to another party, along with the dates the answers are due.> <Maximum number of requests for admission, along with the dates responses are due.> <Maximum number of depositions by each party.> <Limits on the length of depositions, in hours.> <Dates for exchanging reports of expert witnesses.> <Dates for supplementations under Rule 26(e).> 4. Other Items: (a) <A date if the parties ask to meet with the court before a scheduling order.> (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) <Requested dates for pretrial conferences.> <Final dates for the plaintiff to amend pleadings or to join parties.> <Final dates for the defendant to amend pleadings or to join parties.> <Final dates to file dispositive motions.> <State the prospects for settlement.> <Identify any alternative dispute resolution procedure that may enhance settlement prospects.> <Final dates for submitting Rule 26(a)(3) witness lists, designations of witnesses whose testimony will be presented by deposition, and exhibit lists.> <Final dates to file objections under Rule 26(a)(3).> <Suggested trial date and estimate of trial length.> <Other matters.> Date: <Date> Date: <Date> <Signature of the attorney or unrepresented party> ________________________________________ <Printed name> <Address> <E-mail address> <Telephone number> <Signature of the attorney or unrepresented party> ________________________________________ <Printed name> <Address> <E-mail address> <Telephone number>
=== View ===
APPENDIX II1 SUMMARY JUDGMENT REQUIREMENTS NOTICE This exhibit contains specific, mandatory instructions regarding the preparation and submission of briefs and evidentiary materials in support of and in opposition to potentially dispositive motions. These instructions must be followed explicitly. Except for good cause shown, briefs and evidentiary materials that do not conform to the following requirements may be stricken. SUBMISSION DATES The parties to the above-styled action have been or will be given a deadline for the filing of dispositive motions. Any motion for summary judgment and supporting brief and evidentiary materials will be due on or before that deadline. The responsive submission of the party opposing the motion for summary judgment SHALL be filed no later than twenty-one (21) days after the motion for summary judgment is filed. The movant’s reply submission SHALL be filed no later than fourteen (14) days after the date on which the opponent’s responsive submission is filed. To ensure that each party is afforded a full and fair opportunity to be heard, the parties must cause copies of briefs and evidentiary materials to be delivered to opposing parties without undue delay and, generally, on the same date such materials are submitted to the court. SUBMISSIONS The parties’ submissions in support of and in opposition to summary judgment motions must consist of: (1) a brief containing, in separately identified sections, (i) a statement of allegedly undisputed relevant material facts and (ii) a discussion of relevant legal authorities; and (2) copies of any evidentiary materials upon which the party relies. More detailed requirements for these submissions are explained in the following sections. 1 The parties should take note that the court’s requirements for briefing dispositive motions have changed. See Requirements for Evidentiary Materials, ¶ 1, pg. 5. REQUIREMENTS FOR BRIEFS A. Format Initial and response briefs are limited to thirty (30) pages. Reply briefs are limited to ten (10) pages. Briefs that exceed twenty (20) pages must include a table of contents that accurately reflects the organization of the document. The table of contents is not included in the page limit. The text of briefs must be double spaced (except for quotations exceeding fifty (50) words, which may be block indented from the left and right margins and single spaced) using 12-point typeface, preferably Times New Roman. B. Number Submitted The parties must electronically file their brief through the court’s CM/ECF system. The parties SHALL also email to the court’s chambers such brief in Word format. For any brief over ten (10) pages, the parties must simultaneously submit to the Clerk’s Office, for delivery to the court’s chambers by the Clerk, an exact copy of the brief, clearly identified as a “courtesy copy.” C. Binding The court’s “courtesy copy” of any brief SHALL be three-hole punched. Only particularly voluminous submissions must be in a three-ring binder. Do not submit a reply in a separate binder if the initial filing was in a binder. D. Manner of Stating Facts All briefs submitted either in support of or in opposition to a dispositive motion SHALL begin with a statement of allegedly undisputed relevant material facts which SHALL be set out in separately numbered paragraphs. Counsel must state facts in clear, unambiguous, simple, declarative sentences, without argument. All statements of fact must be supported by specific reference to evidentiary submissions. 2 1. Moving Party’s Initial Statement of Facts The moving party SHALL list in separately numbered paragraphs each material fact the movant contends is true and not in genuine dispute, and upon which the moving party relies to demonstrate that it is entitled to summary judgment. Each such statement must be followed by a specific citation to those portions of the evidentiary record that the movant claims support it.2 2. Opposing Party’s Statement of Facts Each party opposing a summary judgment motion also SHALL submit a statement of facts divided as follows. a. Response to Movant’s Statement The first section SHALL consist of only the non-moving party’s disputes, if any, with the moving party’s claimed undisputed facts. The non-moving party’s response to the moving party’s claimed undisputed facts SHALL be in separately numbered paragraphs that coincide with those of the moving party’s claimed undisputed facts. Any statements of fact that are disputed by the non-moving party must be followed by a specific reference to those portions of the evidentiary record upon which the dispute is based. All material facts set forth in the statement required of the moving party will be deemed to be admitted for summary judgment purposes unless controverted by the response of the party opposing summary judgment and supported by a record citation. b. Additional Undisputed Facts The second section may contain additional, allegedly undisputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. 2 Each statement of fact should be supported by its own evidentiary citation, regardless of the fact that more than one statement of fact allegedly is supported by the same specific reference to the evidentiary record or more than one statement of fact is contained in the same numbered paragraph. 3 The second section of the opposing party’s statement of facts, if any, SHALL be clearly designated as such.3 The opposing party should include only facts which the opposing party contends are true and not in genuine dispute. c. Additional Disputed Facts The third section may contain additional, allegedly disputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The third section of the opposing party’s statement of facts, if any, SHALL be clearly designated as such. Each statement of allegedly disputed facts must be followed by specific reference to those portions of the evidentiary record which both support and contradict the alleged fact.4 3. Moving Party’s Reply The fact section of a reply submission, if any, SHALL consist of only the moving party’s disputes, if any, with the non-moving party’s additional claimed undisputed facts. The moving party’s response to the non-moving party’s additional claimed undisputed facts SHALL be in separately numbered paragraphs that coincide with those of the non-moving party’s additional claimed undisputed facts. Any statements of fact that are disputed by the moving party must be followed by a specific citation to those portions of the evidentiary record upon which the disputation is based. All additional material facts set forth by the opposing parties will be deemed 3 Each statement of fact should be supported by its own evidentiary citation, regardless of the fact that more than one statement of fact allegedly is supported by the same specific reference to the evidentiary record or more than one statement of fact is contained in the same numbered paragraph. 4 The court recognizes that, in some circumstances, a party opposing a motion for summary judgment may want to set out facts which that party claims are true and supported by evidence, but cannot, in good conscience and consistent with Rule 11, say are undisputed. In such case, the party should include a separate section of fact statements, set out in short declarative sentences and individually numbered paragraphs, which are supported by some evidence but, nevertheless, are in dispute. When doing so, however, the party should include record citations which both support and contradict the alleged fact. 4 to be admitted for summary judgment purposes unless controverted by the statement of the movant and supported by a record citation. The court reserves the right sua sponte to STRIKE any statements of fact or responsive statements that fail to comply with these requirements. REQUIREMENTS FOR EVIDENTIARY MATERIALS To facilitate the court’s requirement that the parties cite to the CM/ECF document and page numbers, the parties must electronically file all evidentiary materials (e.g., affidavits, exhibits, depositions, or other products of discovery) relied upon in support of or opposition to summary judgment motions before they file their briefs in support of or in opposition to summary judgment. The parties may file their briefs, which SHALL contain citations to the CM/ECF document and page numbers, one business day after making their evidentiary submissions. While the court reserves the right to consider evidentiary materials that are not specifically referenced in the brief, no party has a right to assume the court will consider such materials. A specific reference must include the CM/ECF document and exhibit number, page, and when appropriate the line number. A. Organization Each volume of evidentiary materials must include a table of contents that includes a brief narrative description of each document included: e.g., “Plaintiff’s Exhibit 1, the Deposition of John Jones.” For ease of citation, each affidavit, exhibit, deposition, or other product of discovery SHALL be filed on a separate exhibit in CM/ECF and be separately identified by a capital letter or numeral (i.e., “Exhibit A” or “Exhibit 1”). If the exhibit contains more than one page, each page 5 must be separately numbered.5 Counsel are DIRECTED to submit entire depositions (condensed versions), even if relying only on excerpts. When submitting a deposition, the parties SHALL file the condensed version and must also include the word index. B. Number of Sets Submitted The parties must electronically file one set of evidentiary materials through the court’s CM/ECF system. The parties must simultaneously submit to the Clerk of Court, for delivery to the court’s chambers by the Clerk, an exact copy of the set of evidentiary materials, clearly identified as a “courtesy copy.” There must be no differences between the electronically filed materials and the “courtesy copy.” C. Binding of Courtesy Copy The court’s “courtesy copy” of any evidentiary submission SHALL be three-hole punched. Only particularly voluminous submissions must be in a three-ring binder, in separately numbered volumes, if necessary -- for ease of use and to prevent inadvertent loss of pages. 5 A reference to that exhibit in the statement of facts or brief might be, “Plaintiff’s Ex. 1, p. 41.” The court does not, however, require any specific form as long as specific page references are used. 6
=== View ===
EXHIBIT B1 Non-Summary Judgment Motion Briefing Order2 The court recognizes that a number of motions filed with the court do not require additional briefing before the court takes them under consideration. However, to the extent the parties determine that briefing is necessary on a non-summary judgment motion, or to the extent the court orders briefing on a non-summary judgment motion, the following briefing schedule and requirements for the submission of briefs are established. Briefs that do not conform to the requirements of this Order may be stricken. A. Schedule 1. Upon the filing of any non-summary judgment motion, the movant SHALL either incorporate into the motion the arguments and/or authorities upon which it relies or simultaneously file a separate brief with the initial motion. 2. The opponent’s responsive brief SHALL be filed no later than ten (10) calendar days thereafter. (NOTE: Days should be calculated without taking into account Fed. R. Civ. P. 6. However, if the due date falls on a weekend or court holiday, the due date SHALL be the next business day). 3. The movant’s reply brief SHALL be filed no later than five (5) calendar days after the date on which the opponent’s responsive brief is filed. (NOTE: Days should be calculated 1 The designation Exhibit B carries with it a historical importance in this court. (NOTE: This is not an Exhibit A attached to the Initial Order.). 2 NOTE: The following instructions do not apply to summary judgment motions unless an order of the court specifically provides otherwise. Any motion(s) for summary judgment filed in this action shall be governed by the provisions of Appendix II to the Uniform Initial Order, which can be viewed on the court’s website at www.alnd.uscourts.gov/Proctor/ProctorsPage.htm. without taking into account Fed. R. Civ. P. 6. However, if the due date falls on a weekend or court holiday, the due date SHALL be the next business day). The parties SHALL transmit their briefs preferably by email, but regardless, in such a manner that their opponents will not suffer any undue delay in the receipt of their service copies of any briefs. It is the intent of the court that each party SHALL be afforded a full and fair opportunity to be heard and counsel are expected to take care that service of copies is not unreasonably delayed.3 Upon conclusion of the submission schedule, the court may take the motion under submission without further notice to the parties and materials submitted after the close of the submission schedule will not be considered in ruling on the motion without leave of court. B. Briefs The parties SHALL electronically file their briefs through the court’s CM/ECF system and SHALL submit an exact courtesy copy of the brief to the Clerk’s office for delivery to the court’s chambers.4 The parties are then required to email their briefs, in Word format, to the chamber’s email address at [email protected]. The materials submitted to the Clerk’s office for delivery to the court’s chambers, as well as those sent via email, SHALL contain the exact same materials and only the materials which are electronically filed through the court’s CM/ECF system. There must be no differences between the electronically “filed” briefs and the “copy” provided to the court, except that the courtesy copy submitted for chambers must be three- 3 The opposing party should typically receive a copy of all materials on the same date that the submission is made to the court, but in no event more than one (1) business day later. 4 Deliveries are no longer accepted in the court’s chambers unless prior arrangements have been made. 2 hole punched. In the event of a later appeal, the court will not look favorably upon motions to supplement the record on appeal. Materials not contained in the court’s CM/ECF record are not part of the official record. The title of a brief SHALL clearly reference the motion to which it relates. The text of initial and responsive briefs SHALL not exceed twenty-five (25) pages and reply briefs are limited to ten (10) pages.5 Briefs exceeding ten (10) pages in length SHALL have incorporated therein a table of contents that accurately reflects the organization of the brief itself. Tables of Contents SHALL not be included for purposes of computing the number of pages in a brief. C. Required Certification Counsel for either party (or any individual under the direction or control of a party), signing any document, including an affidavit, in connection, either directly or indirectly, with a motion, response to such a motion, or a reply to any such response, SHALL certify by his or her personal signature and as an officer of the court that he or she has affirmatively and diligently sought to submit to the court only those documents, factual allegations, and arguments that are material to the issues to be resolved in the motion, that careful consideration has been given to the contents of all submissions to ensure that the submissions do not include vague language or an overly broad citation of evidence or misstatements of the law, and that all submissions are non-frivolous in nature. D. Oral Argument Upon receipt of a motion, the court may schedule oral argument at a separate hearing or 5 Briefs must be typewritten and double spaced, using at least 12-point type. The court expects that counsel will respect the page limitation established by this order. Transparent attempts on the part of counsel to circumvent page limitations by manipulating type sizes, margins, line spacing, or other similar end runs will not be tolerated. 3 motion docket. Oral argument may be requested by noting the request on the style of the pleading itself. Separate requests for oral argument should not be filed. The court will schedule oral argument if the court deems it necessary, helpful, or appropriate. 4
=== View ===
PHV Applicants – Judge Proctor’s Policy With respect to applications for pro hoc vice status, Judge Proctor requires the following: (1) Payment of the fee; (2) Certificate of Good Standing; (3) Certification to the court that the applicant has read and understands: (a) any local rules applicable in this District; (b) the Alabama State Bar Code of Professional Courtesy and the Lawyer’s Creed, which can be accessed at: https://www.alabar.org/office-of-general-counsel/ethics-division/code-of- professional-courtesy/ https://www.alabar.org/office-of-general-counsel/ethics-division/; and (c) this court’s CM/ECF requirements.
=== View ===
RU LIN G O N O BJECTIO N (if any) RU LIN G O N REO FFER I D E N T I F I E D R E C E I V E D R E C D . C O N D . O R L T D . EXHIBITS PLAINTIFF GOVERNMENT DEFENDANT COURT JOINT SUS O/R RES SUS O/R DESCRIPTION N O T O F F E R E D N U M B E R 1 2 3 4 5 6 7 8 9 0
=== View ===
TRIBUNAL FEDERAL DE PRIMERA INSTANCIA DISTRITO NORTE DE ALABAMA DIVISION de ---------------------- ESTADOS UNIDOS DE AMERICA contra elAcusado N° de caso: ---------- CERTIFICACION RESPECTO DE LA NOTIFICACION DE DERECHOS 1 Instrucciones al abogado Antes de la presentaci6n de la dec1araci6n de culpabilidad, el abogado defensor debeni conversar con el Acusado en persona, en detalle, sobre cada una de las siguientes cuestiones. De ser capaz, el Acusado deberia inscribir sus iniciales en los lugares correspondientes de este formulario. Una vez completada esta certificaci6n se hara constar en actas. A. Durante la audiencia de declaracion de culpabilidad: 1. se me hara tomar juramento. Lo comprendo, 2. si presto declaraci6n falsa de manera deliberada quedare sujeto Lo comprendo, a penas por 0 se me podni procersar adicionalmente. 3. debere informal' aljuez si no entiendo cualquier cosa que se diga o se haga en la sala del tribunal. Lo comprendo, 4. posiblemente se me preguntara acerca de mi historial educativo y laboral, y si se leer, escribir y entender el idioma ingles. Lo comprendo, 5. se me preguntara si tengo algun impedimento mental 0 emocional 0 alguna enfermedad fisica que pueda afectar mi capacidad de comprender la actuaci6njudicial. Lo comprendo, 6. se me preguntara si he consumido alguna droga, algun medicamento u otra sustancia que pueda afectar mi capacidad de comprender la actuaci6n judicial. Lo comprendo, Este fonllulario fue aprobado para utiJizarse en el Tribunal Federal para el Distrito Norte de Alabama el __ de mayo de 2013. Qucda prohibido cl uso de las versiones anteriores. 10f5 7. se me preguntara si me declaro culpable de manera Lo comprendo, voluntaria. 8. se me preguntara si alguien me ha coaccionado 0 amenazado Lo comprendo, para lograr que me declare culpable. 9. Se me preguntara si tengo queja alguna de mi abogado. Lo comprendo, 10. Se me preguntara: a. b. c. si recibi una copia de la acusaci6n formal si la he leido, 0 si mi abogado me la ha leido si comprendo el cargo/los cargos que se me imputan II. Se me preguntara: Lo comprendo, a. b. c. si he leido el convenio declaratorio, 0 si mi abogado me 10 ha leido si he tenido suficiente tiempo para hablar con mi abogado acerca del contenido del convenio si este contiene todo acuerdo que yo tenga con la Fiscalia d. si personalmente entiendo su contenido B. Explicacion de mis derechos sustantivos I. No estoy obligado a declararme culpable de Lo comprendo, ningun cargo. 2. Al declararme culpable, abandono los siguientes derechos: Lo comprendo a. b. c. d. e. f. el derecho a la presunci6n de mi inculpabilidad el derecho a un juicio publico y sin demora, durante el cualla Fiscalia tendra la obligaci6n de mostrar, mas alia de toda duda razonable, todos y cada uno de los elementos de los delitos imputados el derecho a carear a los testigos de la Fiscalia el derecho a contrainterrogar a los testigos de la Fiscalia el derecho a convocar testigo a que declaren a mi favor el derecho de escoger si presto declaraci6n 0 no 20fS 3. Si yo decidiese prestar declaraci6n durante el juicio, 10 haria bajo juramento, y la Fiscalia tendria el derecho de contra interrogarme. Lo comprendo, 4. Si yo decidiese no prestar declaraci6n durante eljuicio, 0 si Lo comprendo, decidiese no presentar pruebas para defenderme ante la acusaci6n, estos hechos en sf no se podrian utilizar en mi contra. 5. Al declararme culpable, no abandono mi derecho a que me represente Lo comprendo, un abogado adecuado segun la Constituci6n. C. Explicacion de los cargos 1. Se me preguntara si he tenido tiempo suficiente para hablar con Lo comprendo, mi abogado de mi caso. 2. Se me preguntara si mi abogado me ha expJicado los elementos del Lo comprendo, cargo/los cargos que me imputan. 3. El juez no aceptara mi declaraci6n (0 declaraciones) de culpabilidad si no esta convencido que la Fiscalia pod ria demostrar que exista un fundamento factico correspondiente a cada elemento de los cargos de los que me declaro culpable. Lo comprendo 4. Si el juez acepta mi declaraci6n de culpabilidad, solo quedaran por Lo comprendo, hacer dos cosas: a. Un Oficial Federal de Libertad Vigilada (Probation) llevara a cabo una investigaci6n pre-condenatoria, y producini un informe pre-condenatorio; y b. El juez me impondra la condena. D. Explicacion de las penas posibles 1. Se me preguntara si mi abogado me ha explicado cuales son las penas minimas obligatorias aplicables en mi caso (si existen), ademas de las maximas penas aplicables, segUn la ley generaL Lo comprendo, 2. El juez no podra imponerme una condena inferior a la minima pena Lo comprendo obligatoria, si me es aplicable, de no ser que exista una excepci6n rara que de lugar a ello. 3. El juez debera tomar en consideraci6n las Pautas Condenatorias Lo comprendo, Federales antes de imponerme la pena. 4. Se me preguntara si mi abogado ha hablado conmigo de las Lo comprendo, Pautas Condenatorias Federales, y del hecho que eljuez podni darme una condena mas leve 0 mas grave de aquellas penas que en elIas se describen. 30rs 5. Eljuez me ordenara que restituya a toda victima del/de los delitos de Lo comprendo, los que me declare culpable. 6. La cuantia y los plazos de pago de la restitucion se basaran en la Lo comprendo, informacion contenida en el Informe sobre la Investigacion Pre condenatoria. 7. Si me corresponde condena carcelaria, eljuez podra ordenar que la Lo comprendo, Oficina Federal de Libertad Vigilada me supervise tras mi excarcelacion. ____ _ 8. Es posible que el juez tenga la obligacion de imponenne una multa, Lo comprendo, al menos que: a. b. yo no tenga medios para poder pagarJa la imposici6n de multa crease una carga indebida 9. Es posible que eljuez ordene que yo pague, bien sea parcial 0 Lo comprendo, totalmente, los costes de mi encarcelaci6n y supervisari6n, si tengo medios para pagar. 10. Si no soy ciudadano de los Estados Unidos, se me podra deportar a Lo comprendo, consecuencia de mi declaraci6n de culpabilidad. E. EI convenio sobre la declaracion de culpabilidad 1. Si tengo un convenio con la Fiscalfa sobre mi declaraci6n de Lo comprendo, culpabilidad, el convenio y los terminos del mismo se divulgaran en actas del tribunal. 2. EI juez no queda obligado por los terminos del convenio Lo comprendo, declaratorio, y si rechaza dicho convenio, yo no podre retirar mi delcaraci6n de culpabilidad. F. Certificacion de parte del/de la Acusado/a: 1. Yo, , por el presente reconozco que mi abogado, cuya firma consta a continuaci6n en el apartado de certificaci6n correspondiente, me ha explicado en detalle cad a una de las cuestiones enunciadas en 10 anterior. 2. Asimismo certifico que estoy satisfecho con la representaci6n que mi abogado me ha dado, y que no tengo quejas de ningun aspecto de esta representaci6n. 3. Asimismo certifico que no estoy bajo los efectos de ninguna bebida alcoh6lica, ni otro licor, droga, medicamento, u otra sustancia que afecte mi capacidad de entender las cuestiones enunciadas en 10 anterior. 4 deS 4. Por ultimo, certifico que estoy presentando mi dec1aracionlmis dec1araciones de culpabilidad porque de hecho soy culpable, y pido que el juez acepte mi dec1aracion/mis dec1araciones de culpabilidad. Fecha Firma del/de la Acusado/a G. Certificaci6n de parte del abogado: Como representante legal del Acusado nombrado anteriormente, por el presente certifico que: 1. He conversado con el Acusado, en detalle, sobre cada una de las cuestiones enunciadas en 10 anterior. 2. He observado al Acusado hoy, antes de la audiencia de declaracion de cupabilidad, y no me consta ninguna razon por la que el Acusado no sea competente para dec1ararse culpable en este momento; y, 3. No me consta ninguna razon por la que eljuez no debiera aceptar su dec1aracion 0 declaraciones de culapbilidad. Fecha Firma del Abogado Defensor 5de5
=== Order ===
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION A.J. TAFT COAL COMPANY, INC., et al., Plaintiffs, v. JO ANNE B. BARNHART, Commissioner of Social Security; MICHAEL H. HOLLAND, et al., Trustees of the United Mine Workers of America Combined Benefit Fund, Defendants. } } } } } } } } } } } } } ORDER Case No.: CV 03-P-1390-S This case is before the court on the following motions and application: (1) Motion to Transfer to the United States District Court for the District of Columbia (Doc #17) filed by Defendant Trustees on July 1, 2003; (2) Motion to Dismiss, or, in the Alternative, to Transfer (Doc #31) filed by Defendant Commissioner on July 28, 2003; (3) Motion to Dismiss, or, in the Alternative, to Transfer (Doc #38) filed by Defendant Trustees on August 12, 2003; (4) Application for Preliminary Injunction (Doc #47) filed by Plaintiffs on September 30, 2003; and (5) Motion to Intervene as Plaintiffs (Doc #50) filed October 3, 2003. The court held a status conference in this case on October 20, 2003, and a hearing on the above-referenced motions on October 21, 2003. After considering all of the arguments and the relevant case law, the court makes the following rulings consistent with its analysis in the Memorandum Opinion issued contemporaneously with this Order. The court finds that venue is proper in this court because at least one plaintiff who resides in this district had a justiciable claim at the time of filing. Nonetheless, the court finds that the claims of the four (4) plaintiffs in this case who currently reside by incorporation in the Eleventh Circuit, A.J. Taft Coal Company, Inc., Alabama Electric Cooperative, Cowin & Company, Inc., and U.S. Steel Mining Company, LLC, are MOOT and that the claims of those plaintiffs are due to be, and hereby are, DISMISSED. The court TRANSFERS this case to the District of Maryland under 28 U.S.C. § 1404(a). Accordingly, the court DENIES the defendants’ motions to dismiss and GRANTS IN PART the defendants’ motions to transfer. The court declines to rule on the application for preliminary injunction1 and motion to intervene given its decision to transfer the case. It is ORDERED that this case is hereby TRANSFERRED, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the District of Maryland. The Clerk of Court is DIRECTED to take all necessary steps to effectuate the transfer. DONE and ORDERED this 14th day of November, 2003. /s/ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE 1 The court is mindful that this order issues after October 25, 2003, the due date of the premium payments from which the plaintiffs sought relief in their application for preliminary injunction. However, the court has serious doubts about whether the plaintiffs can make a showing of irreparable injury based upon the mere financial burden to pay the premiums. See Sampson v. Murray, 415 U.S. 61 (1974); McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). Moreover, at least part of the relief sought in the injunction application is no longer necessary given the defendants’ application of the lower premium to all Eleventh Circuit resident plaintiffs. For these reasons, the court did not find it imperative to rule on the preliminary injunction application prior to transferring the case. This is an issue more appropriately decided by the transferee court. 2
=== Memorandum Opinion ===
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION A.J. TAFT COAL COMPANY, INC., et al., Plaintiffs, v. JO ANNE B. BARNHART, Commissioner of Social Security; MICHAEL H. HOLLAND, et al., Trustees of the United Mine Workers of America Combined Benefit Fund, Defendants. } } } } } } } } } } } } } Case No.: CV 03-P-1390-S MEMORANDUM OPINION This case represents one chapter in a long-running dispute between coal operators, the Commissioner of the Social Security Administration (“Commissioner”), and the Trustees of the United Mine Workers of America Combined Benefit Fund (the “Trustees” and the “Combined Fund,” respectively). The dispute centers on the meaning of “reimbursements” in the calculation of the premium formula under § 9704(b)(2) of The Coal Industry Retiree Health Benefit Act of 1992, 26 U.S.C. §§ 9701-9722; 30 U.S.C. § 1232(h) (“Coal Act”). The dispositive issue in this case, and in several cases pending in other districts, is simply a question of statutory interpretation. As discussed below, the Eleventh Circuit, in affirming a decision of The Honorable James H. Hancock from this District, has already decided that issue for this Circuit. See National Coal Association v. Chater, 81 F.3d 1077 (11th Cir. 1996). This case is before the court on the following motions and application: (1) Motion to Transfer to the United States District Court for the District of Columbia (Doc #17) filed by Defendant Trustees on July 1, 2003; (2) Motion to Dismiss, or, in the Alternative, to Transfer (Doc #31) filed by Defendant Commissioner on July 28, 2001; (3) Motion to Dismiss, or, in the Alternative, to Transfer (Doc #38) filed by Defendant Trustees on August 12, 2003; (4) Application for Preliminary Injunction (Doc #47) filed by Plaintiffs on September 30, 2003; and (5) Motion to Intervene as Plaintiffs (Doc #50) filed October 3, 2003. For the reasons stated below, the court makes the following determinations. Venue over the Commissioner is proper in this court pursuant to 28 U.S.C. § 1391(e)(3) because at least one plaintiff who resides in this District had a justiciable claim at the time of filing. However, the court finds that the claims of the plaintiffs in this case who reside in the Eleventh Circuit are now moot. The court agrees with the defendants that transfer of this case is appropriate under 28 U.S.C. § 1404(a), but disagrees that the District of Columbia should be the transferee court. The court instead finds it appropriate under § 1404(a) to transfer this case to District of Maryland. I. Background and Procedural History of this Case The Coal Act requires present and former coal operators, such as the plaintiffs in this case, to pay for the health benefits of coal industry retirees and their dependents. 26 U.S.C. §§ 9702, 9704. Congress passed the Coal Act in 1992 to ensure that retired coal miners and their dependents and widows continue to receive the lifetime health benefits guaranteed by earlier collective bargaining agreements with coal operators. Before the Coal Act was passed, the two multi-employer health care plans that provided benefits to retired miners (the “Plans”) were operating at a deficit. The financial instability of the Plans led to a breakdown in labor relations, the cessation of operator contributions to the Plans, and an eleven-month strike by mine workers. National Coal Association v. Chater, 81 F.3d 1077, 1078-79 (11th Cir. 1996). In an effort to remedy the funding problems yet 2 maintain a privately financed program, Congress consolidated the Plans into the Combined Fund with financing primarily provided by coal operators. A. “Reimbursements” under the Coal Act The amount operators must pay to the Combined Fund depends in part on the “per beneficiary premium” calculated by the Commissioner and adjusted annually for inflation. 26 U.S.C. § 9704(b)(2)(B). Once the Commissioner calculates the formula, the Trustees, as fiduciaries, bill and collect the premiums from the coal operators. 26 U.S.C. § 9704(b)(2)(B). The premium formula is based on the costs incurred by the Plans in the last year before they were consolidated into the Combined Fund (“the Base Year”). Because the Plans contracted with the Medicare program for many years before consolidation, Congress decided that reimbursements received from Medicare should be subtracted from the Base Year costs. Thus, the baseline rate for the premium is the “aggregate payments . . . for health benefits (less reimbursements but including administrative costs)” made by the Plans during a base year beginning on July 1, 1991. 26 U.S.C. § 9704(b)(2)(A) (emphasis added). The dispute in this case concerns the calculation of “reimbursements” received by the Combined Fund's predecessors. As the Eleventh Circuit explained: . . . . [Beginning in the base year, HHS] paid a predetermined amount per plan member per month, without regard to the amount of money that the [predecessor] plans actually spent for Medicare-covered services. . . . . [I]n the base year, the [predecessor] plans spent $156.8 million on Medicare Part B and related administrative expenses [and] received $182.3 million in risk-capitation payments for Medicare Part B services and related administrative costs, an amount that exceeded actual costs by $25.5 million. National Coal Association, 81 F.3d at 1079-80 (footnote omitted and emphasis added). 3 The interpretation of the word “reimbursements” as it related to the initial surplus of $25.5 million was the impetus for the litigation leading up to this case. The Secretary of Health and Human Services (“the Secretary”)1 initially determined that the $25.5 million received in the base year should not be counted as reimbursements in the calculation of the baseline premium rate which determined all future years' premiums. See National Coal Association, 81 F.3d at 1080. As a result, the premiums paid by operators were approximately 10% higher (“the higher premium”) than they would have been had the Secretary determined that the term “reimbursements” included the additional $25.5 million and set-off the baseline premium rate by that amount. B. The NCA Litigation In April 1994, eight coal operators and the National Coal Association2 brought suit against the Commissioner before The Honorable James H. Hancock in the Northern District of Alabama challenging the Secretary's interpretation of reimbursements. National Coal Association v. Shalala, 1995 WL 1052240, No. CV-94-H-780-S (N.D. Ala. 1994) (“NCA”). The Trustees were not parties to that lawsuit. Judge Hancock determined that the Secretary’s methodology was flawed because the plain language of the Coal Act required the extra $25.5 million to be included in the calculation of reimbursements and ordered the Commissioner to recompute the baseline premium and all subsequent premiums accordingly (“the lower premium”). The Eleventh Circuit affirmed. National Coal Association, 81 F.3d at 1081-82. 1 A 1994 amendment to the Coal Act replaced the Secretary with the Commissioner. 26 U.S.C. § 9706; Social Security Independence and Program Improvements Act, Pub.L. No. 103-296, § 108(h)(9)(A), 108 Stat. 1464, 1487. 2 The suit was originally filed by the National Coal Association and seven coal operators and an eighth coal operator thereafter intervened. 4 C. The Commissioner’s 1995 Recalculation In response to NCA, the Commissioner, who had by then succeeded to the responsibility for determining the per-beneficiary rate, applied the lower premium to all operators nationwide, not merely those operators who were either parties to the NCA litigation or residents of states within the Eleventh Circuit. D. The Holland I Litigation In 1996, the Trustees filed suit in the United States District Court for the District of Columbia challenging the Commissioner’s 1995 recalculation. Holland v. Apfel, 23 F. Supp. 2d 21 (D.D.C. 1998) (“Holland I”). Subsequently, the National Mining Association (purportedly a successor of the National Coal Association) and seven of the eight NCA plaintiffs intervened as defendants. The District of Columbia District Court determined in February 2000 that the Secretary’s original calculation was correct and ordered the Commissioner to reinstate the higher premium rate. (Trustees’ July 1, 2003, Brief in Support of Transfer, at 11 and Exs. 13-14, 17, 19-20 thereto.) On appeal, the District of Columbia Circuit reversed the district court’s judgment upholding the Commissioner’s original higher premium interpretation. Holland v. Apfel, 309 F.3d 808, 819 (D.C. Cir. 2002). The court further held that the District of Columbia federal courts were not “authorize[d] . . . to lift the existing Eleventh Circuit injunction as to the coal companies who were parties in the prior litigation,” id. at 815, and “vacated the District Court's injunction insofar as it purport[ed] to bind the Commissioner with respect to coal companies who had the benefit of the Eleventh Circuit judgment,” id. at 819. The D.C. Circuit also vacated the Commissioner’s 1995 recalculation which implemented the lower premium nationwide and “remanded” to the Social Security Administration for further 5 justification of the nationwide premium. Id. at 819.3 E. The June 10, 2003 Premium Decision In response to the D.C. Circuit’s order that she provide justification for the nationwide implementation, the Commissioner indicated that she was unable to locate documents or decisionmakers who could answer why the agency had applied the NCA interpretation “nationwide.” (Letter from Social Security Administration in Baltimore, MD, dated June 10, 2003, at 2) (“June 10, 2003 Premium Decision” or “Premium Decision”). Moreover, the Commissioner decided that the higher premium originally set by the Secretary was applicable to “those coal operators who were not parties to the National Coal litigation.” (Premium Decision, at 2) (emphasis added). This “different approach,” the Commissioner explained, was adopted “in light of recent litigation and the current financial condition of the Fund.” Id. Thus, the Commissioner made it very clear that the decision to apply the higher premium to all operators who were not parties to NCA was a direct result of the D.C. Circuit’s Holland I opinion. As she stated: Id. The recent D.C. Circuit opinion in Holland made clear that we are not required to apply the holding of the Eleventh Circuit to coal operators who were not parties to the National Coal litigation. Moreover, while considerations of fairness and uni- formity remain important, the Fund's worsening financial condition makes it essential that the Fund be afforded all the premium revenues contemplated by the Coal Act. 3 The D.C. Circuit explained that further justification by the Commissioner was necessary because the court was uncertain whether the agency had mistakenly concluded that it was “compelled to adopt” nationwide “an interpretation that it did not prefer” or whether it had voluntarily done so. Id. at 816. 6 F. Post-June 10, 2003 Premium Decision Litigation On June 11, 2003, the day after the Commissioner’s announcement that operators who were not parties to NCA are obligated to pay higher premiums, ninety-eight (98) coal operators filed this lawsuit in the Northern District of Alabama against the Commissioner and the Trustees.4 The plaintiffs’ Amended Complaint in this case requests injunctive relief from the Commissioner’s 2003 Premium Decision and a declaratory judgment regarding the correct premium amount under §9704(b) of the Coal Act. (See July 10, 2003, Plaintiffs’ Amended Complaint, Counts I-III.) Generally, the plaintiffs claim that the Commissioner’s 2003 Premium Decision violates § 9704(b) of the Coal Act and this court’s decision in NCA. (Id.) Of the ninety-eight (98) plaintiffs in this case, only four — A.J. Taft Coal Company, Inc., Alabama Electric Cooperative, Cowin & Company, Inc., and U.S. Steel Mining Company, LLC, — are incorporated in Alabama.5 “Plaintiffs have chosen this forum because this District Court and the Eleventh Circuit previously have resolved the very statutory construction issue presented in this action. Therefore, this Court may rule summarily on this action.” (Plaintiffs’ July 16, 2003, Opposition Brief, at 2.) On June 12, 2003, the Commissioner filed a “Notice of Decision on Remand” with the D.C. 4 None of the plaintiffs appears to contend that it was a party in NCA, though thirty-eight (38) of them do claim that they are due the lower premium rate because they are “related” to one or more parties in the NCA litigation. (July 10, 2003, Plaintiffs’ Amended Complaint, ¶¶ 37-38.) 5 As discussed infra, only three of those companies reside in Alabama for venue purposes (A.J. Taft Coal Company, Inc., Alabama Electric Cooperative, and Cowin & Company, Inc.) and of those three, only two have standing to sue because Alabama Electric Cooperative has no justiciable claim as it owes $0 in premiums. Therefore, only A.J. Taft Coal Company, Inc. and Cowin & Company, Inc. are properly counted for venue purposes. Although it appears from the plaintiffs’ Amended Complaint that Drummond Coal Sales Inc. is also incorporated in Alabama (see July 10, 2003, Plaintiffs’ Amended Complaint, at 16), at oral argument the parties corrected that error and represented that Drummond Coal Sales Inc. is, in fact, incorporated in Delaware. 7 District Court attaching the June 10, 2003 Premium Decision. That same day, the Trustees filed a motion in the D.C. District Court to reopen the Holland I litigation. A few days later, the Trustees also requested leave to file an amended complaint in the D.C. District Court. On July 8, 2003, the D.C. District Court denied both of the Trustees’ motions on the ground that the court no longer had jurisdiction over the proceedings related to the D.C. Circuit’s remand to the Social Security Administration. The court instructed the Trustees to pursue any grievances against the Social Security Administration by filing a new lawsuit. One week later, the Trustees filed a second lawsuit in the District of Columbia against approximately 100 coal operator defendants (none of whom were parties to NCA, but many of whom are plaintiffs in this case). Holland v. A.T. Massey Coal Co., No. 03-1523 (filed July 15, 2003) (“Holland II”). In Holland II, the Trustees seek a declaration that the higher premium of the 2003 Premium Decision is valid and that none of the named coal operators defendants are entitled to the lower premium applicable to NCA parties. When Holland II was filed, approximately seventy-three (73) of the operator-defendants named in that case were also plaintiffs in this case. Moreover, an additional thirty-eight (38) of the operator-defendants in Holland II – none of whom alleges Alabama residency – have moved to intervene in this action. (October 3, 2003, Motion to Intervene.) Two weeks after the Trustees filed Holland II, the Commissioner filed in this case a motion to dismiss or, in the alternative, to transfer the case to U.S. District Court for the District of Columbia. In her brief in support of that motion, the Commissioner stated that “the assumption implicit in the 2003 Premium Decision was that [the Commissioner] was addressing only whether to adopt the Eleventh Circuit decision [in NCA] . . . outside the Eleventh Circuit. The 2003 Premium 8 Decision thus . . . leaves undisturbed for Eleventh Circuit companies the lower premium rates established by NCA.” (Commissioner’s July 28, 2003, Brief in Support of Motion to Dismiss or Transfer, at 10) (emphasis added). According to the Commissioner’s brief, the lower premium rate which, as of the June 10, 2003 Premium Decision applied only to the “parties to the National Coal litigation,” now applies to the broader group of “Eleventh Circuit companies.” The Trustees have represented to this court that, based on the Commissioner’s acknowledgment that the lower premium applies to all Eleventh Circuit resident companies, the Trustees have now dismissed from the Holland II litigation all companies who reside in the Eleventh Circuit. (See D.D.C. Notice of Dismissal filed Aug. 5, 2003, in Holland v. A.J. Taft Coal Co., et al., No. 03-1523.) The companies in this case who reside in the Eleventh Circuit are among those dismissed from Holland II. In response to the court’s questioning at oral argument held on October 21, 2003, the Commissioner filed a written concession that assures the lower premium rate “will remain in effect for all plan years for residents of the Eleventh Circuit” unless a higher rate is authorized by the Eleventh Circuit, the Supreme Court, or Congress. (Defendant Commissioner’s October 22, 2003, Response to Inquiry of Court.) II. Current Posture of this Case The Commissioner’s application of the lower rate to all companies who reside in the Eleventh Circuit is the basis for the defendants’ venue challenge in this lawsuit. The defendants argue that, because the Commissioner does not seek to enforce the higher premium against companies that reside in Alabama, Georgia and Florida, the Eleventh Circuit resident plaintiffs have no case or controversy with the defendants and thus cannot establish venue against the Commissioner in the Northern District of Alabama under 28 U.S.C. § 1391(e)(3). 9 This Court now has before it ninety-eight (98) plaintiff coal companies who challenge the correctness of the Commissioner’s June 10, 2003 Premium Decision because they desire the lower premium calculation. There is a disagreement between the Eleventh Circuit and the D.C. Circuit as to whether or not the term “reimbursements” is ambiguous. Compare National Coal Association, 81 F.3d at 1081-82 (finding that “reimbursements” is unambiguous on its face and affirming the district court’s mandate that the Commissioner apply the lower premium) with Holland, 309 F.3d at 425 (“If anything, the Eleventh Circuit’s opinion seems to confirm the statute’s ambiguity . . . .We can discern no plain meaning [of “reimbursements”] in this case, however.”). Although the circuits are split on this issue, it is clear that the result in this court is preordained. If the court were to reach the merits of this case, it would apply the lower premium consistent with the NCA decision because (1) it is bound by the Eleventh Circuit’s decision in that case and, in any event, (2) it believes the NCA holding is the correct one. It is equally clear that the plaintiff coal companies have chosen to bring suit in a forum that virtually guarantees the application of the lower premium rate and assures them victory. Although this case is pending in the Eleventh Circuit, the ninety-four (94) plaintiffs in this case who have a justiciable claim all reside outside the Eleventh Circuit. All four of the plaintiffs who reside in the Eleventh Circuit were billed at the lower premium rate and have no case or controversy with the defendants because, in light of the unequivocal representation of the Commissioner, they will continue to receive the lower rate absent a change in the law by the Eleventh Circuit, the United States Supreme Court, or Congress. (See October 22, 2003, Defendant Commissioner’s Response to Inquiry of Court; see also discussion infra Section III.A.) Moreover, the plaintiffs in this case who reside outside the Eleventh Circuit are entangled in the Holland II 10 litigation currently pending in the D.C. Circuit, although thirty-eight (38) of the Holland II defendant coal companies have sought to intervene in this case. (See October 3, 2003, Motion to Intervene.) The Trustees have represented that if the lower premium applies to all operators for the remaining life of the Combined Fund, the resulting loss to the Combined Fund – and thus to benefits paid to retired mine workers and their beneficiaries and widows – totals several hundred million dollars. (See Trustees’ July 1, 2003, Brief in Support of Transfer, at 7 and Ex. 2 thereto.) Hence, as will be even more evident below, this case now involves a dispute between the Commissioner and Trustees on one hand, and, on the other, a number of coal operators (1) who do not reside in either the Eleventh or D.C. Circuits and (2) who were neither parties to the Eleventh Circuit’s NCA case nor the D.C. Circuit’s Holland I litigation. Nevertheless, the plaintiffs seek the “protection” of the NCA case and the defendants seek to transfer this case to Washington, D.C., in order to benefit from the Holland I decision. III. Discussion A. Venue in this Case Is Proper in the Northern District of Alabama. Both the Commissioner and the Trustees claim that this case is due to be dismissed or transferred because venue is improper as to the Commissioner in the Northern District of Alabama under 28 U.S.C. § 1391(e).6 Because the plaintiffs have brought suit against the Commissioner of 6 Apart from their argument that (1) the Commissioner is a Fed. R. Civ. P. 19 indispensable party to this action and (2) the case should be dismissed or transferred if venue is improper as to the Commissioner, the Trustees cannot present any improper venue motion of their own. First, even if the Commissioner was correct in arguing that venue is improper as to her by virtue of § 1391(e), that does not mean that venue is improper as to the Trustees for the same reason. Camp v. Gress, 250 U.S. 308, 316 (1919); see also Goldberg v. Wharf Constructers, 209 F. Supp. 499, 503 (N.D. Ala. 1962) (Lynne, J.) (“It is well settled...that the defense of improper venue is personal to the party to whom it applies ....”). Second, as discussed infra, the Trustees have not asserted that venue in the Northern District of Alabama is improper as to them. 11 Social Security in her official capacity, § 1391(e) is the appropriate venue statute for the claims filed against her in this case. It provides in relevant part: A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity . . . may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred ... or (3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies where not a party. 28 U.S.C. § 1391(e). The plaintiffs claim only that venue is appropriate under § 1391(e)(3). (See Plaintiffs’ August 13, 2003, Opposition Brief, at 21.)7 1. Any Argument That Venue Is Improper as to the Trustees Has Been Waived. As a threshold matter, the court notes that § 1391(e) does not confer venue over the Trustees because they are nonfederal defendants. “[A] defendant” in 1391(e)(1) refers only to federal agencies and officers. Rogers v. Civil Air Patrol, 129 F. Supp. 2d 1334, 1338 (M.D. Ala. 2001); Lamont v. Haig, 590 F.2d 1124, 1128-1129 (D.C. Cir. 1978); Reuben H. Donnelley Corp. v. F.T.C., 580 F.2d 264, 266 (7th Cir.1978); see also H. Rep. No. 94-1656, at 19 (1976), reprinted in 1976 U.S.C.C.A.N. 5109, 6139-40 (noting that venue determinations for federal and non-federal defendants are separate, even where they are joined in the same action); 15 CHARLES A. WRIGHT, 7 The parties concede that § 1391(e)(1) is not applicable because the Commissioner does not reside in the Northern District of Alabama. Although the court indicated at oral argument that it would entertain argument regarding venue under both §§ 1391(e)(2) and (e)(3), the plaintiffs declined to assert (e)(2) and indicated they stand only on (e)(3). Because the parties agree that §1391(e)(3) is the only possible basis for venue in this action, the court will focus its analysis on that provision. 12 ARTHUR R. MILLER & EDWARD H. COOPER, JURISDICTION 2D, § 3815, 164-65 (1986). For venue to be proper over the Trustees in this court, they must satisfy “such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.” 28 U.S.C. § 1391(e). That being said, the court need not conduct an independent analysis of whether venue in the Northern District of Alabama is appropriate as to the Trustees under 28 U.S.C. § 1391(b), the general venue provision for cases involving federal question jurisdiction, because neither the Commissioner nor the Trustees raised as a defense improper venue under that section. See Fed. R. Civ. P. 12(h)(1); Lipofsky v. New York State Workers Compensation Bd., 861 F.2d 1257, 1258 (11th Cir. 1985) (finding that improper venue, unlike lack of subject matter jurisdiction which requires dismissal on the court’s own motion if not raised by the parties, is waived when a defendant files a responsive pleading or a Rule 12 motion failing to assert it). Accordingly, the court finds that any objection to improper venue over the Trustees has been waived and the court need only address venue under §1391(e).8 2. Venue Is Proper under § 1391(e)(3) If “A” Plaintiff Resides in this District. First, the Defendants claim that venue is improper under § 1391(e)(3) because that provision requires that all plaintiffs reside in the judicial district in which the claim is brought. For over thirty years federal courts have conclusively and consistently held that the statutory 8As a practical matter, it is of no moment that the defendants waived any objection to improper venue over the Trustees given the court’s decision to transfer the case under 28 U.S.C. §1404(a) to the District of Maryland. Even if this court were to decide that venue was improper in the Northern District of Alabama as to any of the defendants, the court nonetheless would have transferred the case to the District of Maryland under 28 U.S.C. § 1406(a). As discussed infra Section III.B., venue in the District of Maryland is appropriate as to the Commissioner under either § 1391(e)(1) or (e)(2) and as to the Trustees under § 1391(b). 13 language in 28 U.S.C. § 1391(e)(3) regarding the residency of “the plaintiff” should be interpreted to mean any plaintiff rather than all plaintiffs. See Sidney Coal Co., Inc. v. Massanari, 221 F. Supp. 2d 755, 766-767 (E.D. Ky 2002); Favereau v. United States, 44 F. Supp. 2d 68, 70 (D.Me.1999); Minn-Dak Farmers Co-op. v. Espy, 851 F. Supp. 1423, 1425 (D.N.D.1994); Aug. 12 order filed in NCA v. Shalala, No. CV 94-H-0780-S (N.D. Ala.1994); Finley v. National Endowment for the Arts, 795 F. Supp. 1457, 1466-67 (C.D. Cal.1992), aff'd 100 F.3d 671 (9th Cir.1996), rev'd and remanded on other grounds by 524 U.S. 569 (1998); Ry. Labor Executives’ Association v. ICC, 958 F.2d 252, 256 (9th Cir.1991); National Air Traffic Controllers Association v. Burnley, 700 F. Supp. 1043, 1045 (N.D. Cal.1988); Jewish War Veterans v. U.S., 695 F. Supp. 1, 2 n.3 (D.D.C.1987); National Treasury Employees Union v. Von Raab, 649 F. Supp. 380, 383 (E.D. La.1986), vacated on the merits, 816 F.2d 170 (5th Cir.1987); Santa Fe International Corp. v. Watt, 580 F. Supp. 27, 29 n.4 (D.Del.1984); Amoco Prod. Co. v. Dept. of Energy, 469 F. Supp. 236, 242 (D. Del.1979); Columbia Power Trades Council v. Dept. of Energy, 496 F. Supp. 186, 189 (W.D. Wash.1980), vacated and remanded for want of subject matter jurisdiction, 671 F.2d 325 (9th Cir.1982); National Distillers and Chemical Corp. v. Dept. of Energy, 487 F. Supp. 34, 36 (D. Del.1980); Standard Oil v. FTC, No. H 78-485, 1979 WL 1605, *1-*2 (N.D. Ind. March 28, 1979); Dow Chemical, USA v. Consumer Prod. Safety Commission, 459 F. Supp. 378, 384 n.4 (W.D. La.1978); Exxon Corp. v. FTC, 588 F.2d 895, 898-99 (3d Cir. 1978); Kenyatta v. Kelley, 430 F. Supp. 1328, 1330, n.7 (E.D. Pa.1977); Candarini v. Attorney Gen. of U.S., 369 F. Supp. 1132, 1135 (E.D.N.Y.1974); Holtzman v. Richardson, 361 F. Supp. 544, 552 (E.D.N.Y.1973), rev'd on other grounds sub. nom. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir.1973); Natural Res. Def. Council, Inc. v. TVA, 340 F. Supp. 400, 405-06 (S.D.N.Y.1971), rev'd on other grounds, 459 F.2d 255 (2d Cir.1972); Environmental Defense 14 Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728, 731-32 (E.D. Ark. 1971), aff’d 470 F.2d 289 (8th Cir. 1972); see also 9 A.L.R. Fed. 719 (pocket part) (1971); 15 CHARLES A. WRIGHT, ARTHUR R. MILLER AND EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE, §§ 1107, 3807-3815 (2d ed.1986). At oral argument, counsel for both the Commissioner and the Trustees conceded that, even with the vast resources of their respective law groups, they could not identify a single case deciding that § 1391(e)(3) should be interpreted to mean all plaintiffs. In light of the long-standing case law, the court rejects the Commissioner’s proposition that the court independently reexamine this issue. This court concludes that under 28 U.S.C. § 1391(e)(3), a suit can be brought in any district in which a single plaintiff resides. The court now turns to the second part of this analysis, whether a single plaintiff residing in this District had a justiciable claim. 3. Venue Is Proper under § 1391(e)(3) Because at Least One Plaintiff Incorporated in this Judicial District Had a Justiciable Claim When the Complaint Was Filed. As an alternative argument, the defendants contend that no plaintiff residing in this District has a justiciable claim against the Trustees or the Commissioner.9 For purposes of § 1391(e)(3), “a corporation resides only in the state in which it is incorporated.” Flowers Indus., Inc. v. FTC, 835 F.2d 775, 777 (11th Cir. 1987). The court finds that, out of the ninety-eight (98) plaintiffs who brought this case initially, only two of those companies were incorporated in Alabama at the time 9 The Commissioner claims that there are two sets of plaintiffs who lack justiciable claims against the defendants: (1) plaintiffs entitled to the benefit of NCA because they were parties or in privity with parties to the NCA litigation and (2) plaintiffs who reside in Alabama. (Commissioner’s July 28, 2003, Brief in Support of Motion to Dismiss or Transfer at 8-10.) For purposes of whether resident plaintiffs had standing at the time of the filing and thus can be used to calculate venue, this court need only reach the question of whether a case or controversy existed between the Commissioner and the second set of plaintiffs–those who reside in this District. 15 of filing and had a justiciable claim: A.J. Taft Coal Company, Inc. and Cowin & Company, Inc. (“the Alabama plaintiffs”).10 Nonetheless, because at least a plaintiff residing in Alabama had a justiciable claim when the Complaint was filed, venue is proper. Before progressing to the court’s analysis, it is important to understand the defendants’ somewhat circuitous venue argument. Their contention appears to be a two-step approach. First, they maintain that the claims brought by the Alabama plaintiffs are not justiciable because those plaintiffs are not subject to the higher premium. Second, building on the assumption that the Alabama plaintiffs’ claims are not appropriately in the case, venue becomes improper under §1391(e)(3) because no plaintiff residing in this District has a justiciable claim.11 The defendants’ venue argument fails for two reasons. First, venue is determined at the time of filing, not later in the case after parties have been dismissed.12 Second, even if the claims of the two Alabama plaintiffs 10 Although there are currently four plaintiffs in this lawsuit who are incorporated in Alabama, only two of those are appropriately counted for venue purposes. U.S. Steel Mining Company, LLC became incorporated in Alabama on or about September 16, 2003, several months after the case was filed, and thus U.S. Steel is not relevant to the discussion of venue at the time of filing. Moreover, even though Alabama Electric was incorporated in Alabama at the time of filing, Alabama Electric never had a justiciable claim against the Commissioner because it has a $0 balance, owes no premium, and has not been assessed a premium at any time relevant to the case before the court. 11 The defendants take this argument one step further, perhaps fearing that the court may find venue improper under § 1391(e) but remedy the problem by dismissing only the Commissioner while allowing the case to proceed against the Trustees. The defendants contend that the Commissioner is an indispensable party under Fed. R. Civ. P. 19(a) and thus the entire case must be dismissed or transferred because the plaintiffs cannot proceed without the Commissioner. The court need not address this argument given the court’s decision to transfer the case in its entirety to the District of Maryland, where venue is proper as to the Commissioner under §1391(e)(1) or (e)(2). (See discussion infra Section III.B.) 12 Moreover, as explained below, the defendants’ assertion that this court can reevaluate venue throughout the case confuses the doctrines of standing and mootness. Although both of these are subsumed under the more general “case or controversy” doctrine, they are separate and distinct. 16 became moot during the course of the litigation, those plaintiffs had standing to bring the lawsuit initially and therefore venue is proper. a. Venue Is Determined at the Time the Complaint Is Filed. The defendants’ argument that venue should be evaluated, not when the complaint was filed, but rather on the date this court considered their motion to dismiss is premised on the decision of Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196 (8th Cir. 1990). This court is not inclined to follow Knowlton for two reasons. First, the authority cited by Knowlton for the premise that venue properly can be reassessed after filing consists only of a case addressing the effect of dismissed parties on diversity jurisdiction, not venue. See Knowlton, 900 F.2d 1196, 1200-01 (citing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989 . Second, and more importantly, this court is bound to follow the controlling law in this Circuit, Flowers Indus. v. FTC, 835 F.2d 775 (11th Cir. 1987), which makes clear that “venue must be determined based on the facts at the time of filing [the complaint].” Flowers Indus., 835 F.2d at 776 n.1. b. Standing, like Venue, Is Determined at the Time the Complaint Is Filed, While Mootness Is a Temporal Doctrine. Article III of the Constitution limits federal-court jurisdiction to “cases” and “controversies.” Whether a case or controversy exists turns on “‘whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’” Wendy’s Intern, Inc. v. City of Birmingham, 868 F.2d 433, 436 (11th Cir. 1989) (quoting Maryland Casualty Co. v. Pacific Oil Co., 312 U.S. 270, 273 (1941 . Standing, therefore, emphasizes “whether the party invoking federal court jurisdiction has ‘a personal stake in the outcome of the 17 controversy,’ and whether the dispute touches upon ‘the legal relations of parties having adverse legal interests.’” Flast v. Cohen, 392 U.S. 83, 100-101 (1968) (internal citations omitted). Standing, like venue, is a snapshot of the justiciability of each plaintiff’s claims at the time of filing. Atlanta Gas Light Co. v. Aetna Casualty and Surety Co., 68 F.3d 409, 414 (11th Cir. 1995). Mootness, on the other hand, is “‘the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” United States Parole Commission v. Geraghty, 445 U.S. 388, 395-97 (1980) (citations omitted). Mootness, unlike standing, requires the court to reevaluate the viability of the claim throughout the case. It is entirely possible that a claim may be justiciable when the complaint is filed, but may later become moot. As discussed below, that is the case here with respect to the claims of the plaintiffs incorporated in Alabama. However, the fact that the claims of the Alabama plaintiffs in this case became moot as the lawsuit progressed does not retroactively revoke their initial standing to file this lawsuit. c. Although Their Claims Have Become Moot, at Least One Plaintiff Residing in Alabama Had Standing to File this Case. Venue is proper in this court because at least one Alabama plaintiff had standing. Standing requires, at an “irreducible minimum,” that each plaintiff has an “actual or threatened injury resulting from the defendant's conduct, that the injury fairly can be traced to the challenged action, and that the injury is likely to be redressed by favorable court disposition.” Atlanta Gas Light Co. v. Aetna Casualty and Surety Co., 68 F.3d 409, 414 (11th Cir. 1995). Defendants argue that no Alabama plaintiff had a justiciable claim as of June 11, 2003, the 18 date of filing, because the June 10, 2003 Premium Decision ensured that all residents of the Eleventh Circuit would be billed at the lower premium rate. Looking to the plain language of the June 10, 2003 Premium Decision, however, the Commissioner clearly limits the application of the lower premium to “parties to the National Coal litigation.” (2003 Premium Decision, at 2.) Undoubtedly, the Commissioner adopted the language of its 2003 Premium Decision from the D.C. Circuit’s Holland I holding that the Eleventh Circuit’s injunction in NCA guarantees the lower premium only to the parties of NCA. (2003 Premium Decision, at 2) (“The recent D.C. Circuit opinion in Holland made clear that we are not required to apply the holding of the Eleventh Circuit to coal operators who were not parties to the National Coal litigation.”). No plaintiff in this case was a party to NCA. Despite the clear wording of the 2003 Premium Decision, the defendants maintain that the Commissioner subsequently “clarified” the meaning of the decision, thus broadening the application of the lower premium beyond just NCA parties. After the filing of this lawsuit, the Commissioner “acknowledged” that companies residing in the Eleventh Circuit and companies “in privity” with parties to NCA are entitled to the lower premium rates. (See Trustees’ October 17, 2003, “Four Issues Brief,” at 2-4.) Defendants maintain that the Commissioner’s “clarification” renders the claims of Eleventh Circuit resident plaintiffs non-justiciable. However, without question, the clarification (i.e., no Eleventh Circuit residents will be charged the higher premium) is wholly different than the plain language of the Premium Decision (i.e., no NCA party will be charged the higher premium). There is no question that as of June 11, 2003, the day this case was filed and the day after the 2003 Premium Decision was rendered, no plaintiff in this case was guaranteed 19 application of the lower premium rate.13 Thus, at the time this case was filed, at least two of the Alabama plaintiffs had standing to bring suit against the Commissioner and to urge this court to enter an order requiring the Commissioner to comply with the NCA case. Although the subsequent “clarification” by the Commissioner does not affect standing, it obviously does activate the mootness doctrine. At least by October 22, 2003, the date the Commissioner filed her written representation with the court, her once theoretical acknowledgment that Eleventh Circuit residents would be billed at the lower rate became reality. Alabama companies have only received bills at the lower premium rate, (Carl Tennille Decl. ¶ 4); furthermore, the Commissioner now has conceded in writing that the lower premium rate “will remain in effect for all plan years for residents of the Eleventh Circuit” unless a higher rate is authorized by the Eleventh Circuit, the Supreme Court, or Congress. (October 22, 2003, Defendant Commissioner’s Response to Inquiry of Court.) The Commissioner’s October 22 concession was filed in response to this court’s questioning at oral argument the day before. Although the plaintiffs contend that, pursuant to Dixie Fuel Co. v. Commissioner of Social Sec., 171 F.3d 1052 (6th Cir 1999), the Commissioner’s voluntary concession at oral argument does not render a case moot, the court disagrees based on the breadth of the concession in this case. This court was aware, prior to oral argument in this case, of the Dixie 13 This finding is also buttressed by the actions of the Trustees who candidly conceded at oral argument that they, too, believed as of June 11, 2003 that the Commissioner’s decision only applied to NCA parties. The Trustees’ belief is evidenced by (1) their decision to file Holland II against the Alabama companies who were not parties to NCA (only after the Commissioner “clarified” that the lower premium applies to Alabama companies did the Trustees dismiss the Alabama companies) and (2) the Trustees’ failure to argue improper venue in their July 1, 2003, Rule 12(b) motion because they believed at that time that Alabama companies had justiciable claims, making venue proper against the Commissioner here. 20 Fuel concession and the Sixth Circuit’s analysis in that case and purposely sought the particular concession the Commissioner refused to make in Dixie Fuel. The Dixie Fuel court held that, “Although the SSA conceded that these particular assignments to Dixie Fuel were void . . . , it did not concede that it may not or would not again assign beneficiaries to Dixie Fuel. Therefore, the case is not moot.” Dixie Fuel, 171 F.3d at 1057 (emphasis added). By contrast, the Commissioner’s concession in this case was prospective and qualified only to the extent this Circuit, the Supreme Court, or Congress intervenes to compel a different result. Accordingly, the court cannot conceive of any relief that is not already available under the October 22 filed concession of the Commissioner.14 Although “‘mere voluntary cessation of allegedly illegal conduct does not moot a case . . . , [a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. . . .’” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-36 (1953 (emphasis added). In this case, given the Commissioner’s clear concession, “‘the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary.’” Id. Thus, with the exception of Alabama Electric, the claims of the companies who resided in the Eleventh Circuit at the time of filing are properly considered for venue because standing existed 14 The plaintiffs’ argument appears to be that a judgment, presumably from this court, would protect the Eleventh Circuit resident plaintiffs more than the Commissioner’s concession. First, the court does not understand how that could be the case. Even if the court were to rule that the plaintiffs are entitled to the lower premium, the Eleventh Circuit sitting en banc and the United States Supreme Court could reverse that judgment and, further, Congress could always amend the statute and abrogate the NCA decision. Second, and even more importantly, because the Commissioner’s concession moots the claims of those plaintiffs who reside in the Eleventh Circuit, the plaintiffs’ argument amounts to little more than a request for an advisory opinion by this court. This court cannot grant hypothetical relief to plaintiffs whose claims are now moot. 21 when this case was filed. However, based upon the Commissioner’s concession filed with the court, those claims have become moot and are due to be dismissed.15 Accordingly, the court will dismiss (1) the now moot claims of A.J. Taft Coal Company, Inc. and Cowin & Company, Inc., (2) the claims of Alabama Electric, who lacked standing from the date this case was filed, and (3) the claims of U.S. Steel Mining Company, LLC, who, as of September 2003, resides in the Eleventh Circuit. B. For the Convenience of Parties and Witnesses, and in the Interest of Justice, the Court Transfers this Case under 28 U.S.C. § 1404(a) to the District of Maryland, Where the Case Originally Could Have Been Brought. The Trustees and Commissioner both urge this court to transfer this case under 28 U.S.C. § 1404(a) to the District of Columbia, where Holland II is pending. The court deems transfer appropriate, but, for the convenience of parties and witnesses and in the interest of justice, the court finds it more appropriate to transfer the case to the District of Maryland. “District courts have broad discretion in deciding whether to transfer an action to a more convenient forum.” Johnston v. Foster-Wheeler Constructors, Inc., 158 F.R.D. 496, 503 (M.D. Ala.1994). The decision of whether a case should be transferred under § 1404(a) is “‘an individualized case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van 15 The court is mindful that there may be other claims, asserted by non-Eleventh Circuit resident plaintiffs in this case, that are also moot because the defendants have voluntarily applied the lower premium rate to those plaintiffs. For example, the Commissioner apparently decided to apply the lower rate to companies “in privity” with NCA parties and also to companies that were members “of the National Coal Association throughout the district court proceedings in NCA.” (See Trustees’ October 17, 2003, “Four Issues Brief,” at 2 n.1.) The defendants allege that some of the plaintiffs in this case fall into those categories. Whether these claims are actually moot, however, is a difficult question given the mutable definition of “privity” and the fact that these plaintiffs were not covered by the Commissioner’s October 22, 2003, concession. The court specifically declines to rule on the justiciability of those claims because they have no impact on the court’s venue analysis and are more appropriately considered by the transferee court. 22 Dusen v. Barrack, 376 U.S. 612, 622 (1964 . 28 U.S.C. § 1404(a) codifies (with some additions) the common law doctrine of forum non conveniens. See 5 CHARLES A. WRIGHT, ARTHUR R. MILLER AND EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE, § 1352 (1969). Section 1404(a) states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district court or division where it might have been brought.” 28 U.S.C. § 1404(a). The analysis under § 1404(a) is a two-part inquiry. Folkes v. Haley, 64 F. Supp. 2d 1152, 1154 (M.D. Ala. 1999) (relying on Ricoh Corp., 487 U.S. at 29). As a threshold matter, the court must consider if the case “might have been brought” in the transferee court. 28 U.S.C. § 1404(a). Second, the court must ask whether the balance of factors under § 1404(a) weighs in favor of transferring this action to the transferee court. 28 U.S.C. § 1404(a). 1. This Case Could Have Been Brought in the District of Maryland. It is clear that this action could have been brought in the District of Maryland because venue is proper in that District as to the Commissioner under 28 U.S.C. § 1391(e)(1) and (e)(2) and as to the Trustees under 28 U.S.C. § 1391(b).16 As a threshold matter, the court notes §§ 1391(e)(2) and 1391(b) both confer venue in the district where “a substantial part of the events or omissions giving rise to the claim occurred . . . .” 28 U.S.C. § 1391(e)(2); 28 U.S.C. § 1391(b). 16As discussed supra Section III.A., venue determinations for federal and non-federal defendants joined in the same action must be made separately. For the Commissioner, the appropriate venue provision is § 1391(e). For the Trustees, the court looks to the general venue provision for federal question cases, § 1391(b). Section 1391(b) states in relevant part: “A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State ... [or] ... (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ....” 28 U.S.C. §1391(b). 23 a. Section 1391(e)(1) Confers Venue over the Commissioner in Maryland. As discussed earlier, venue is appropriate as to the Commissioner in any judicial district in which “a [federal] defendant in the action resides.” 28 U.S.C. § 1391(e)(1). For venue purposes, the residence of a federal officer is the place where she performs her official duties. Reuben H. Donnelley Corp. v. F. T. C., 580 F.2d 264 (7th Cir. 1978). Officers and agencies of the United States can have more than one residence and therefore, venue can properly lie in more than one jurisdiction. Bartman v. Cheney, 827 F. Supp. 1 (D.D.C. 1993). Because the Social Security Administration has principal offices in both the District of Columbia and Baltimore, Maryland, (Commissioner’s July 28, 2003, Brief in Support of Motion to Dismiss or Transfer, at 12), venue is proper in either district. b. Because the June 10, 2003 Premium Decision Was Made in Baltimore, Maryland, Venue Is Proper in Maryland as to the Commissioner under § 1391(e)(2) and the Trustees under § 1391(b). Venue is proper under as to the Commissioner under § 1391(e)(2) and the Trustees under §1391(b) where “a substantial part of the events or omissions giving rise to the claim occurred ....” 28 U.S.C. § 1391(e)(2); 28 U.S.C. § 1391(b). Courts applying this statute look first at what events give rise to the claim. McDaniel v. IBP, Inc., 89 F. Supp. 2d 1289, 1294 (M.D.Ala.2000); United States v. Hartbrodt, 773 F. Supp. 1240, 1242 (S.D. Iowa 1991). Section 1391(e)(2) has been interpreted as requiring a court to focus on the actions of the defendant, not of the plaintiff. Rogers v. Civil Air Patrol, 129 F. Supp. 2d 1334, 1338-39 (M.D. Ala. 2001) (citing Gaines, Emhof, Metzler & Kriner v. Nisberg, 843 F. Supp. 851, 854 (W.D.N.Y.1994 . The plaintiffs’ Amended Complaint in this case requests injunctive relief from the Commissioner’s 2003 Premium Decision and a declaratory judgment regarding the correct premium 24 amount under § 9704(b) of the Coal Act. (See July 10, 2003, Plaintiffs’ Amended Complaint, Counts I-III.) Generally, the plaintiffs claim that the Commissioner’s 2003 Premium Decision violates § 9704(b) of the Coal Act and this court’s decision in NCA. (Id.) Thus, the principal event that gave rise to this June 11, 2003 lawsuit was the June 10, 2003 Premium Decision.17 Because the Decision was made in and issued from Baltimore, Maryland, (see June 10, 2003 Premium Decision; Commissioner’s October 17, 2003, “Four Issues Brief,” at 22), venue is proper as to both the Commissioner and the Trustees in the District of Maryland. 28 U.S.C. § 1391(e)(2); 28 U.S.C. §1391(b).18 17 Although the Trustees claim that one of the events giving rise to this lawsuit was their assessment of premiums from the District of Columbia, (see Trustees’ October 17, 2003, “Four Issues Brief,” at 16), it is undisputed that the issuance of premium bills by the Trustees succeeded the filing of the Complaint and could not logically have given rise to the claims in this lawsuit. At the time the original Complaint was filed on June 11, 2003, and even one month later when the plaintiffs’ Amended Complaint was filed, the Combined Fund had yet to assess the premium amount to operators in this case. (See July 10, 2003, Plaintiffs’ Amended Complaint, ¶ 35) (“On information and belief, the Combined Fund intends to assess assigned operators . . . the premium amount set out in the Commissioner’s 2003 Premium Decision”) (emphasis added). 18 The District of Maryland also has personal jurisdiction over the Commissioner and the Trustees. The Commissioner resides in Maryland, giving the District of Maryland “general jurisdiction” over her. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-17 (1984). As to the Trustees, although the Combined Fund is administered in Washington D.C., (Trustees’ October 17, 2003, “Four Issues Brief,” at 16), the Trustees availed themselves of the privilege of conducting business with the Commissioner within the District of Maryland and that is sufficient for personal jurisdiction under both the first element of due process and the second element of “fair play and substantial justice.” First, the significant contacts between the Trustees and the Commissioner in the District of Maryland regarding the premium calculation are both purposeful on the part of the Trustees and related to the matter at hand. Burger King v. Rudzewicz, 471 U.S. 462, 474 (1985); Helicopteros, 466 U.S. at 414-17 (1984); International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Second, the requirements of fairness and equity are met given the District of Maryland’s interest in resolving this matter and the insignificant burden on the Trustees to litigate in that forum. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980) (“When minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant.”) 25 Because this case could have been brought in the District of Maryland against the Commissioner under either §§ 1391(e)(1) or (e)(2) and against the Trustees under § 1391(b)(2), the court finds that the District of Maryland is an appropriate transferee court. 2. The Balance of Factors Weighs in Favor of Transfer. Having decided that the District of Maryland is a proper transferee district, the court must now “decide whether the balance of convenience favors transfer.” Johnston v. Foster-Wheeler Constructors, Inc., 158 F.R.D. 496, 504 (M.D.Ala.1994). In applying the law to the facts and allegations in the instant case, the court finds that the defendants have satisfied their burden of demonstrating that this action should be transferred for “the convenience of the parties and witnesses, [and] in the interest of justice.” 28 U.S.C. § 1404(a). However, as discussed below, the court finds that transferring the case to the District of Columbia would “merely shift inconvenience from the defendants to the plaintiff[s].” Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996). Instead, the court finds that transfer to the District of Maryland is appropriate under §1404(a). The Commissioner concedes that the District of Maryland “would be a permissible transferee district whether or not venue is proper [in the Northern District of Alabama].” (Commissioner’s October 17, 2003, “Four Issues Brief,” at 21 n.9.) The analysis under §1404(a) requires a balancing of practical considerations, which centers on convenience of the parties and witnesses, with the interest of justice, which focuses on fairness and efficiency. Before the court delves into that analysis, however, it must address the plaintiffs’ choice of forum because, in this Circuit, a plaintiff's choice of forum typically is entitled to considerable deference. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); In re Ricoh Corp., 26 870 F.2d 570, 573 (11th Cir. 1989); 1 JAMES WM MOORE, ET. AL., MOORE'S FEDERAL PRACTICE ¶ 0.145[5] (1988). a. The Plaintiffs’ Forum Choice Is Entitled Less Deference in this Case. The plaintiffs’ principal justification for selecting the Northern District of Alabama as their forum is set out as follows: “Plaintiffs have chosen this forum because this District Court and the Eleventh Circuit previously have resolved the very statutory construction issue presented in this action. Therefore, this Court may rule summarily on this action.” (Plaintiffs’ July 16, 2003, Opposition Brief, at 2.) This court finds that the deference typically afforded the plaintiffs’ choice of forum is lessened in this case for three reasons. First, the plaintiffs’ admitted reason for selecting this forum, while couched as a balance of equities, amounts to nothing more than forum shopping, which is historically disfavored by the federal courts. Hanna v. Plumer, 380 U.S. 460, 468-70 (1965). As one district court noted, “[a] Plaintiff’s obvious forum shopping merely adds weight to the other considerations favoring transfer [under § 1404(a)].” Scheinbart v. Certain-Teed Products, Corp., 367 F. Supp. 707, 711-712 (S.D.N.Y. 1973); see also Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 654-655 (11th Cir. 1993) (finding district court did not abuse its discretion by transferring case to Middle District of Georgia under § 1404(a) even though plaintiffs/appellants admittedly “sought a forum other than the Middle District because of the historical antipathy towards Civil Rights cases shown in that district”). Moreover, the disproportionate amount of the premiums owed by the Alabama plaintiffs, when compared to the amount owed by plaintiffs who reside outside the Eleventh Circuit, also leads to the conclusion that the plaintiffs sought sanctuary in the favorable law of this Circuit. The 27 Trustees represented at oral argument that A.J. Taft Coal Company, Inc. and Cowin & Company, Inc. (the Alabama plaintiffs counted for venue purposes) owe a combined premium amount of approximately $17,000.00, whereas the plaintiffs in this case who reside outside of the Eleventh Circuit owe approximately $67 million in combined premiums. The defendants’ position is that the non-Alabama companies used Alabama residents as a Trojan horse attempting to reap the benefit of the Eleventh Circuit’s NCA decision. The court is inclined to agree, particularly now that the claims of all the Alabama operators are moot. All of the relevant circumstances reveal a substantial threat that the plaintiffs brought suit in this court because of NCA, even though the NCA decision does not apply in the home circuits of the only plaintiffs that still have justiciable claims. That the 2003 Premium Decision was made and issued from the District of Maryland is the second reason the plaintiffs’ choice of forum is entitled less deference in this case. When “‘the operative facts underlying the cause of action did not occur within the forum chosen by the Plaintiff, the choice of forum is entitled to less consideration.’” Gould v. National Life Insurance Co., 990 F. Supp. 1354, 1358 (M.D. Ala. 1998) (citation omitted). Moreover, in light of the Commissioner’s concession and the Trustees’ bills seeking the lower premiums from companies in Alabama, even the consequences of the Commissioner’s decision have not occurred within this District. Because the Alabama plaintiffs are subject to the lower premium, the only plaintiffs affected by the application of a higher premium reside outside of Alabama. As noted above, the small premium amount owed by the plaintiffs who reside in the Eleventh Circuit is greatly disproportionate to the tremendous amount owed by plaintiffs who reside outside the Eleventh Circuit. Finally, the Alabama plaintiffs’ choice of home forum is entitled to less deference because the remaining ninety-four (94) plaintiffs in this case have not brought suit in their resident forum. 28 When there are numerous plaintiffs who could “‘with equal show of right go into their many home courts [to bring suit against the Defendants], the claim of any one plaintiff that a forum is appropriate merely because it is his home forum is considerably weakened.’” Gould, 990 F. Supp. at 1358 (quoting Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 524 (1947 . Although Gould was brought by a class of plaintiffs, and this suit was not, the Gould reasoning still operates here given the nationwide application of the Commissioner’s premium calculation. Moreover, because the Alabama plaintiffs’ claims are now moot, there is no plaintiff with a justiciable claim who chose its resident forum. For these reasons, the plaintiffs’ choice of forum is entitled to less deference here than might typically be afforded. b. The Balance of Other Factors Weighs in Favor of Transfer. Even though the chosen forum is due less deference in this case, the court must nonetheless find that the balance of factors clearly weighs in favor of transfer. See Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996). Two broad categories of factors must be considered under the plain language of § 1404(a)– the convenience of parties and witnesses and the interest of justice.19 i. Convenience of Parties and Witnesses First, when considering the practical need to adjudicate in a forum convenient for the parties and witnesses, courts generally examine the location of principal material witnesses, “the relative ease of access to sources of proof,” and the ability of the parties to bear the expense of changing the 19 Although other courts have analyzed additional factors, the court finds these are the most appropriate to consider in this case. 29 forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). “[W]here the operative facts underlying the cause of action transpired” is a consideration for convenience. Johnston v. Foster-Wheeler Constructors, Inc., 158 F.R.D. 496, 50 (M.D.Ala.1994). Courts look to a forum where the trial is “most ‘easy, expeditious and inexpensive.’” Howell v. Tanner, 650 F.2d 610, 616 (5th Cir.1981) (citation omitted).20 Several practical reasons motivate this court to transfer the case. First, the court finds that, should this dispute require discovery or a trial,21 the majority of the material principal witnesses and documents or other sources of proof relating to the 2003 Premium Decision are likely to be located in the District of Maryland where the Commissioner made the decision.22 Second, the court finds that the operative decision giving rise to this lawsuit occurred in the District of Maryland. Third, the Commissioner, whom the parties concede has the sole authority to calculate the premium at issue in this case, maintains a principal office in the District of Maryland. Although the defendants argue that this case should be transferred to the District of Columbia, the court does not find that transfer to that District is appropriate because § 1404(a) does 20 Fifth Circuit decisions rendered prior to October 1, 1981 constitute binding authority in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). 21 Although the court is unable to predict whether or not a trial will take place, the question of whether “reimbursements” is ambiguous is not preordained in the District of Maryland as it would be in the Eleventh Circuit or the D.C. Circuit and thus it is entirely possible that a hearing, or at least some discovery, will be necessary. 22 Although some courts have questioned whether location of counsel is a relevant factor in evaluating forum non conveniens (see e.g., In re Horseshoe Entertainment, 305 F.3d 354, 358 (5th Cir. 2002 , the court notes that all the parties’ principal counsel are located in Washington, D.C. Therefore, at a minimum, transfer to the District of Maryland will allow all the parties to substantially reduce litigation costs, which is without question a relevant factor. 30 not provide for transfer to a forum if it would “merely shift inconvenience from the defendants to the plaintiff[s].” Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996); see also Johnston, 158 F.R.D. at 503. Transfer to the District of Maryland, where the 2003 Premium Decision giving rise to this action took place, is more than a mere shift of inconvenience.23 Moreover, the defendants’ contention that transfer to the District of Columbia is warranted because Holland II is pending there is not persuasive. The defendants’ own argument that this case cannot proceed without the Commissioner because she is a Fed. R. Civ. P. 19(a) indispensable party weighs against transfer to the District of Columbia because the Commissioner is not a party in Holland II. ii. Interest of Justice The defendants suggest that this court should consider the equities of fairness and efficiency when it weighs the interest of justice. (Trustees’ October 17, 2003, “Four Issues Brief,” at 21.) The Supreme Court has told us that the “interest of justice” factor requires a district court to weigh “those public-interest factors of systematic integrity and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 30 (1988). As outlined earlier, ninety-four (94) of the ninety-eight (98) plaintiffs in this case reside outside of the Eleventh Circuit and of the four plaintiffs who reside in the Eleventh Circuit, not one has a justiciable claim. In addition, thirty-eight (38) companies seek to intervene in this case although they, too, reside outside the Eleventh Circuit. Therefore, out of a total 136 plaintiffs/would-be plaintiffs who seek sanctuary in this District in order to reap the benefit of NCA, 0% are Alabama residents with a justiciable claim. The court questions the fairness of allowing 23 The court notes that, to the extent the District of Columbia is convenient because the Combined Fund is administered there and principal counsel for all parties reside there, the District of Maryland is no less convenient given that it is a mere trainride away from the District of Columbia. 31 over 100 companies to benefit from a decision in this Circuit when the vast majority of them reside in other circuits. As for judicial efficiency, the parties present no arguments that weigh against transfer to the District of Maryland. In fact, the only efficiency objection raised by the plaintiffs is a parade of horribles concerning the District of Columbia’s backlog of cases and the statement that “it took the District of Columbia courts seven years to decide that the term ‘reimbursements’ in the Coal Act is ambiguous.” (Plaintiffs’ July 16, 2003, Opposition Brief, at 14-17; Plaintiffs’ October 17, 2003, “Four Issues Brief,” at 17.) The plaintiffs’ arguments are unique to the D.C. courts, however, and to the extent such concerns exist,24 they are remedied by transferring this case to the District of Maryland where there is no suggestion of inefficiency. Perhaps an argument can be made that transfer to the District of Maryland is “inefficient” because the parties must litigate on a “clean slate” in that forum instead of one party starting out in the lead. The court does not believe that such a view of efficiency is proper in a case such as this. A shortcut which deprives parties of their right to litigate issues unresolved in their judicial circuits is not more efficient. To borrow an analogy from our nation’s pastime, a batter will indeed have a shorter “at bat” if he steps to the plate with one or two strikes already having been called against him (as would be the case for the plaintiffs if the case were transferred to the D.C. District Court), or three strikes already called against him (as would be the case for the Trustees–and to a lesser degree the Commissioner–if the case were to remain in this District). That may speed the game along, but no one would say that it would make it more “efficient.” 24 This court specifically declines to find, as the plaintiffs have invited it to do, that the district courts in the District of Columbia are inefficient. 32 Furthermore, even if efficiency were to equal nothing more than speed of result, that is precisely why another factor, fairness, must also be considered in determining “the interest of justice.” The court finds that the need for fairness outweighs efficiency of speed to result. None of the plaintiffs in this case were themselves parties to NCA or Holland I. Nor have the circuit courts of any of the states where those plaintiffs with justiciable claims reside interpreted the statute in question. Accordingly the court finds that the balance of factors weighs in favor of transfer to the District of Maryland, where the case could have been filed originally. IV. Conclusion Based on the foregoing, the court determines that venue was proper in this court at the time the case was filed, that due to either lack of standing or mootness there is no case or controversy involving any of the Alabama plaintiffs, and that the case is due to be transferred to the District of Maryland. A separate order shall be entered. DONE and ORDERED this 14th day of November, 2003. /s/ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE 33
=== Order ===
Case 2:92-cv-10000-RDP Document 3835 Filed 05/19/10 Page 1 of 2 FILED 2010 May-19 AM 10:53 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION In re: SILICONE GEL BREAST IMPLANT PRODUCTS LIABILITY LITIGATION (MDL 926) SANDY ALTRICHTER, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. INAMED CORPORATION, et al. Defendants. } } } } } } } } } } } } } } } } ORDER Master File No.: 2:92-CV-10000-RDP Case No.: 2:97-CV-11441-RDP Consistent with the Memorandum Opinion entered contemporaneously herewith, the court ORDERS as follows: 1. Defendants' Motion for Order to Show Cause (Doc. #208), filed September 20, 2006, is GRANTED IN PART and DENIED IN PART. Insofar as Defendants request continuing enforcement of Order 47A's anti-suit injunction, the Motion is GRANTED, but insofar as Defendants request holding Plaintiff Zuzanna Juris and Attorney Cynthia LeBow in contempt, the Motion is DENIED. 2. Plaintiff Zuzanna Juris's request to be excluded from the Inamed Class Settlement is DENIED. 3. Defendants' Motion to Strike Inadmissible and Irrelevant Statements from Plaintiff's Case 2:92-cv-10000-RDP Document 3835 Filed 05/19/10 Page 2 of 2 Opposition to OSC Motion (Doc. #226), filed January 5, 2007, is MOOT. 4. Plaintiff Zuzanna Juris's Motion for Evidentiary Hearing and Request for Oral Argument or in the Alternative Motion to Strike Evidentiary Submissions (Doc. #228), filed January 12, 2007, is MOOT. 5. Plaintiff Zuzanna Juris's Motion for Judicial Notice of Certain Documents (Doc. #254), filed September 25, 2008, is GRANTED. DONE and ORDERED this 19th day of May, 2010. ___________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE 2
=== Memorandum Opinion ===
Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 1 of 114 FILED 2010 May-19 AM 10:47 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION In re: SILICONE GEL BREAST IMPLANT PRODUCTS LIABILITY LITIGATION (MDL 926) SANDY ALTRICHTER, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. INAMED CORPORATION, et al. Defendants. } } } } } } } } } } } } } } } } Master File No.: 2:92-CV-10000-RDP Case No.: 2:97-CV-11441-RDP MEMORANDUM OPINION This case is before the court on Defendants' Motion for Order to Show Cause (Doc. #208), filed September 20, 2006. For the reasons that follow, Defendants' Motion is due to be granted in part and denied in part, and Class Member Zuzanna Juris's request to be excluded from the Inamed Class Settlement is due to be denied. I. FACTUAL AND PROCEDURAL HISTORY Well after the creation of the first silicone breast implants, women who received them began to assert claims alleging that leaking gel caused various diseases. Before long there were a number of lawsuits. In January 1992, the Food and Drug Administration banned the use of silicone gel implants, and a "tidal wave of litigation" followed. MARCIA ANGELL, SCIENCE ON TRIAL: THE CLASH OF MEDICAL EVIDENCE AND THE LAW IN THE BREAST IMPLANT CASE 69 (1996). In April Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 2 of 114 1992, the FDA relaxed the ban to permit use of implants for certain medical purposes – e.g., reconstruction after mastectomy, correction of congenital deformities, or replacement of ruptured implants. The wave of lawsuits just increased all the more. In mid-1992 the Judicial Panel on Multidistrict Litigation ("MDL Panel") determined that the number of breast implant cases pending in the federal courts required consolidation of those cases for pretrial proceedings. In re Silicone Gel Breast Implants Products Liability Litigation, 793 F. Supp. 1098, 1100 (J.P.M.L. 1992). But the question of whether to centralize the actions against the defendants was the easy one. The overwhelming number of positions received by the MDL Panel supported transfer to an MDL court. Id. at 1099. The more contested issue was which court should be named the transferee court. The parties who supported transfer took different positions on that question. A number argued that the cases should be transferred to the Northern District of California where a number of the manufacturers were located and California was presumptively the home of the largest number of actual and potential claimants in the breast implant litigation. Id. at 1100. Still another group favored the Southern District of Ohio where the presiding district judge had already conditionally certified a nationwide opt out class, established a document depository, and scheduled a trial on common issues for the next calendar year. Id. In analyzing these differing positions, the Panel observed: that either the Northern District of California or the Southern District of Ohio could be an appropriate forum for this docket and certainly the judges referred to are experienced and well-qualified to handle this litigation. We are troubled, however, by the volume and tone of the negative arguments with which opposing counsel have sought to denigrate each other's forum choices, litigation strategies and underlying motives. A brief recitation of a few of these arguments sufficiently coveys their flavor. For example, various parties argue that 1) parties in the Ohio forum have engendered a flurry of pretrial 2 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 3 of 114 activity in an effort to dictate our decision on selection of the transferee court; 2) the class in the Southern District of Ohio was certified in a precipitous fashion, without according adequate notice or opportunity to be heard to interested parties nationwide; 3) defendants oppose the California forum only because two trials there resulted in substantial verdicts against one of them; and 4) the plaintiffs who favor the California forum are forum shopping for a judge who had tried a breast implant action in which plaintiffs prevailed. Id. at 1100. These arguments, which were fueled by an acrimonious dispute among counsel, caused the Panel "to look beyond the preferences of the parties in our search for a transferee judge with the ability and temperament to steer this complex litigation on a steady course that will be sensitive to the concerns of all parties." Id. at 1101. The Panel settled on Judge Sam C. Pointer, the former Chief Judge of this court, "a former member of [the] Panel, Chairman of the Board of Editors of the Manual for Complex Litigation, Chairman of the Judicial Conference's Advisory Committee on Civil Rules, and an experienced multidistrict transferee judge." Id. It was a good thing that the Panel entrusted "this important and challenging assignment to [such] a distinguished jurist." Id. Eventually, over 21,000 cases were transferred to this court. Accordingly, on June 25, 1992, the Panel transferred the federal breast implant litigation to this court for the purpose of consolidated pretrial proceedings. Id. The consolidated cases proceeded under the heading In re Silicone Breast Implant Products Liability Litigation, MDL 926, 2:92-CV- 10000. Included in the transfer were all pending lawsuits filed in federal court against Inamed for allegedly defective breast implants. The Inamed breast implant litigation reached its crescendo in 1999 when Judge Pointer certified a mandatory limited fund class for settlement purposes only. The settlement extinguished all current and future breast implant related claims against Inamed. Zuzanna Juris, a class member, 3 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 4 of 114 now, over a decade later, requests exclusion from this settlement. An analysis of her arguments for exclusion first requires a careful appreciation of the events precipitating Judge Pointer's decision to certify the class and approve the settlement. A. Inamed's Pre-Settlement Financial Position In 1991, women who received Inamed or Inamed-subsidiary breast implants began filing individual lawsuits against the company and its subsidiaries. (Doc. #269-2, Babbit Aff. ¶ 12). The litigation quickly ballooned until approximately 15,000 lawsuits had been filed across the country. (Doc. #269-2, Babbit Aff. ¶ 12). As a result, the breast implant litigation forced Inamed to divert a significant portion of its capital to funding its defense efforts. (Doc. #269-2, Babbit Aff. ¶ 14). In 1994, attempting to stem the tide, Inamed and the plaintiffs' settlement committee negotiated a global settlement agreement, which required Inamed to pay $1 million per year for 25 years. (Doc. #269-2, Babbit Aff. ¶ 16 n.1; Babbit Aff. Ex. C). In anticipation of the settlement's approval, Inamed booked the $25 million annuity as a $9.2 million contingent liability. (Doc. #269-2, Babbit Aff. ¶ 1 16 n.1). Inamed proposed certifying the class pursuant to Rule 23(b)(1)(B), thereby securing a 2 mandatory, global resolution of all present and future claims. (Doc. #269-6, 1/11/99 Hearing Transcript 11:13-17). Plaintiffs' settlement committee retained Ernst & Young to review the financial statements of Inamed and to determine whether limited fund treatment was appropriate. (Doc. #269-2, Babbit Aff. ¶ 29). Having reviewed Inamed's financial statements, Ernst & Young issued a report, which concurred with Inamed's assessment that its liabilities, both operational and 1 This $9.2 million figure reflected the present value of twenty-five annual payments of $1 million. 2 Since this time period when the parties analyzed the issues and Judge Pointer entered his orders, Federal Rule of Civil Procedure 23 has undergone several cosmetic and substantive revisions. To the extent that one of Rule 23's provisions, relevant to this litigation, was amended, particularly in 2003, the distinction is acknowledged. If unacknowledged, however, Rule 23, as it appeared in the mid- to late-1990s, is identical to its present iteration. 4 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 5 of 114 litigation-related, dwarfed its assets. (Doc. #269-2, Babbit Aff. ¶ 29). On this basis, plaintiffs' counsel did not contest the propriety of Rule 23(b)(1)(B) class treatment; instead, they questioned whether the $9.2 million present value contribution was prudent considering Inamed's future earnings potential. (Doc. #269-2, Babbit Aff. ¶ 29). The disagreement yielded further settlement negotiations between Inamed and plaintiffs' counsel, and the possibility of global settlement languished. (Doc. #269-2, Babbit Aff. ¶ 29). In 1996, and responding to deepening financial troubles, Inamed approached a high risk investment group and raised $35 million through a private placement of senior secured convertible notes. (Doc. #269-2, Babbit Aff. ¶ 17). The notes were senior to all claims (including operational liabilities and tort claims) and were secured by interests in substantially all of Inamed's assets, "including all inventory, equipment, accounts receivable and stock of subsidiaries." (Doc. #269-2, Babbit Aff. ¶ 17). Under the terms of the offering, Inamed placed $15 million in escrow for the sole purpose of financing a mandatory non-opt-out settlement class fund if approved by January 23, 1997. (Doc. #269-2, Babbit Aff. ¶ 17). As that condition was not met, Inamed returned the $15 million to the noteholders in exchange for warrants to purchase Inamed common stock if a mandatory class settlement was later approved. (Doc. #269-2, Babbit Aff. ¶ 17). The balance – $20 million – was earmarked for covering operational expenses and paying down the company's debt load. (Doc. #269- 2, Babbit Aff. ¶ 17). Inamed quickly exhausted the $20 million. (Doc. #269-2, Babbit Aff. ¶ 17). In January 1997, Inamed secured $6.2 million from another private debt placement. (Doc. #269-2, Babbit Aff. ¶ 18). All proceeds from the offering were immediately spent on day-to-day operational expenses as well as paying past-due federal and state income tax liabilities. (Doc. #269- 2, Babbit Aff. ¶ 18). During this same time period, Inamed defaulted on its repayment obligations 5 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 6 of 114 under the senior secured notes. (Doc. #269-2, Babbit Aff. ¶ 18). The company explored other options of raising capital. (Doc. #269-2, Babbit Aff. ¶ 18). However, between (1) the senior secured noteholders exercising their veto authority over Inamed's ability to raise capital through equity offerings and (2) the simple unavailability of commercially reasonable lending opportunities given the company's dire financial predicament, Inamed's only option was to obtain $10 million from an entity related to the company's former chairman. (Doc. #269-2, Babbit Aff. ¶ 19). Since the early 1990s and to 1997, each audit letter, prepared by Coopers & Lybrand for the relevant SEC filings, included a qualified opinion. (Doc. #269-2, Babbit Aff. ¶ 26). That qualified opinion expressed "substantial doubt about the Company's ability to continue as a going concern." (Doc. #269-2, Babbit Aff. ¶ 26). For fiscal years 1995, 1996, and 1997, Inamed reported pre-tax operating losses of $8.6 million, $6.0 million, and $6.6 million, respectively. (Doc. #269-2, Babbit Aff. ¶ 16). At year end 1997, the company's consolidated book value (i.e., subtracting liabilities from assets) was negative $10.9 million. (Doc. #269-2, Babbit Aff. ¶ 16). Adding back the $9.2 3 million contingent liability, booked in 1994 in anticipation of the proposed settlement, the company's book value was still negative $1.7 million. (Doc. #269-2, Babbit Aff. ¶ 16). Aside from the $9.2 million contingent liability, Inamed had not accounted on its balance sheet for any other litigation 4 3 At the hearing on January 11, 1999, Ernest Hornsby questioned Class Counsel's retained financial expert, Alan Jacobs of Ernst & Young, regarding the appropriate method of business valuation. (Doc. #269-6, 1/11/99 Hearing Transcript 38-39). Specifically, Hornsby asked Jacobs whether the book value method or the market capitalization method was more appropriate for valuing Inamed. (Doc. #269-6, 1/11/99 Hearing Transcript 38:11-14). Jacobs noted that, although the market capitalization method had been considered, which may have yielded a higher business value, the book value method, based on the circumstances, was the better avenue for appraisal. (Doc. #269-6, 1/11/99 Hearing Transcript 38:15-24). In any event, Jacobs concluded that, whether market capitalization or book value was applied, the settlement proposed and ultimately approved was fair, adequate, and reasonable in light of Inamed's financial position. (Doc. #269-6, 1/11/99 Hearing Transcript 38:25-39:3). 4 Critically, by 1997, the 1994 proposed settlement, which called for a $1 million annuity over a 25 year period, was no longer a possible solution given the company's continued decline and monthly negative cash flow. Thus, to the extent that Inamed's balance sheet reflected the costs of litigation, the entry was without reference to realistic expectations 6 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 7 of 114 expenses, including possible settlement, attorneys' fees, and potential judgments. (Doc. #269-2, Babbit Aff. ¶ 16). Those expenses, however, were staggering. For example, the cost for Inamed's attorneys to take a single case from beginning through trial was $300,000. (Doc. #269-3, Rawls Aff. ¶ 10). The legal fees and costs associated with taking a single case to the brink of trial were $150,000. (Doc. #269-3, Rawls Aff. ¶ 10). Additionally, in 1997 alone, Inamed settled sixteen cases, and the settlements ranged from $2,500 to $50,000 and averaged $18,500 per case. (Doc. #269-3, Rawls Aff. ¶ 13). The values of these settlements reflected the actual payout to plaintiffs without incorporating the transactional costs required to reach them. (Doc. #269-3, Rawls Aff. ¶ 13). During the relevant time period, neither Inamed nor its subsidiaries had products liability insurance coverage. (Doc. #269-3, Rawls Aff. ¶ 14). In light of Inamed's rapidly deteriorating financial condition, the company and plaintiffs' counsel revisited settlement negotiations during the latter part of 1997. (Doc. #269-4, Jacobs Aff. ¶ 15). At this stage, however, investors were unwilling to finance a settlement that "did not extinguish all, or substantially all, of the company's breast implant litigation. Investors . . . saw elimination of the huge costs and risks of the implant litigation as an essential precondition to the economic turnaround necessary to repay such an investment." (Doc. #269-2, Babbit Aff. ¶ 37). Coupling this pressure with the senior secured noteholders' authority over Inamed's financing decisions, "Inamed's ability to pay for any settlement was . . . essentially dependent on the willingness of its senior secured noteholders to finance it." (Doc. #269-2, Babbit Aff. ¶ 38). During the negotiations, the settlement participants considered the bankruptcy option. In terms of bankruptcy possibilities, Chapter 7 liquidation, as opposed to Chapter 11 reorganization, or actual costs. 7 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 8 of 114 was the only viable solution to Inamed's financial stresses. (Doc. #269-2, Babbit Aff. ¶¶ 47-51). If Inamed, at 1997 year end, had elected Chapter 7 bankruptcy, the company's saleable assets, discounted by the impairment likely to result from a forced liquidation, totaled between $11.4 million and $20.4 million. (Doc. #269-2, Babbit Aff. ¶ 46). The senior secured creditors would have been entitled to $19 million, which would have left unsecured creditors (trade creditors as well as tort claimants) with anywhere between $0 and $1.4 million. (Doc. #269-2, Babbit Aff. ¶ 46). During the course of bankruptcy, tort claimants would have had to contend with trade creditors, with rights to payment valued at $12.5 million, and unsecured noteholders, with rights to payment valued at $10 million. (Doc. #269-2, Babbit Aff. ¶ 46). Counsel for Plaintiffs with current injury claims as well as counsel for Plaintiffs with potential injury claims participated in the settlement negotiations with Inamed and Inamed's senior secured noteholders. (Doc. #269-5, Decl. of Class Counsel ¶¶ 5-6; Doc. #269-2, Babbit Aff. ¶ 39). The senior secured noteholders, the only lenders open to advancing Inamed funds for settlement, conditioned their willingness to finance on (1) the settlement being mandatory and (2) the settlement value not exceeding $31.5 million. (Doc. #269-2, Babbit Aff. ¶¶ 37, 39). If Plaintiffs demanded opt- out rights or money beyond $31.5 million, Inamed, steered by the senior secured creditors, was prepared to pursue liquidation. "Thus, the proposed certification of a mandatory settlement class . . . [made] possible the creation of a substantial fund . . . that would otherwise not exist." (Doc. #269-2, Babbit Aff. ¶ 37). Acknowledging Inamed's financial reality – that unconstrained litigation would force Inamed to seek bankruptcy protection and, thus, subordinate tort claims to the senior secured noteholders – Plaintiffs' counsel begrudgingly accepted the comparative benefit of limited fund treatment. (Doc. 8 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 9 of 114 #269-5, Decl. of Class Counsel ¶¶ 9-10). Eventually, all parties participating in the settlement negotiations accepted the $31.5 million limited fund, obtained by Inamed from its senior secured noteholders, as the only available resolution. In particular, Plaintiffs' counsel, including counsel representing future injury claimants, concluded "that all Inamed implant claimants, whether their injuries were manifest or not, had a common interest in securing a common fund, at this time, as a certain source of recovery for their claims, and that none of them would be well served by the alternatives of default, insolvency and bankruptcy." (Doc. #269-5, Decl. of Class Counsel ¶ 6).5 B. 1998 Notice of the Proposed Limited Fund Settlement Class The parties presented to Judge Pointer a proposed settlement, which called for mandatory class certification of a $31.5 million limited fund. On June 2, 1998, the court provisionally certified a mandatory class and conditionally approved the proposed settlement. (Doc. #10). On June 2, 1998, the court entered Order 47, which directed notice to be given to all potentially affected by the class settlement. (Doc. #10, Order 47; Doc. #269-6, 1/11/99 Hearing Transcript 3:16-19). In fashioning the plan for giving notice of the proposed settlement, Judge Pointer attempted to approximate the level and quality of notice required by Rule 23(b)(3) even though the class was 5 To be clear, the $31.5 million financing was a loan – the senior creditors did not gratuitously advance this money. (Doc. #269-2, Babbitt Aff. ¶ 41; Doc. #59, Order 47A ¶ 5(b . 9 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 10 of 114 provisionally certified pursuant to Rule 23(b)(1)(B). (Doc. #269-6, 1/11/99 Hearing Transcript 6 7:18-8:1). First, the court directed notice to be sent to all individuals registered with the Claims Office. (Doc. #269-6, 1/11/99 Hearing Transcript 3:19-24). At that point in time, approximately 250,000 women had registered with the Claims Office. (Doc. #269-6, 1/11/99 Hearing Transcript 4:8-12). The court estimated that around 80,000 of the registered claimants were potential members of the Inamed Settlement Class. (Doc. #269-6, 1/11/99 Hearing Transcript 4:16-19). Supplementing the individually-mailed notices, the court required sending notice to approximately 28,000 attorneys who represented plaintiffs with breast implant-related claims against Inamed. (Doc. #269-6, 1/11/99 Hearing Transcript 4:12-15). The court, however, understood that not all women with Inamed implants would have registered with the Claims Office or would have retained counsel subject to the mass mailing. It was from this understanding that the court ordered notice of the proposed settlement to be published in two periodicals. (Doc. #269-6, 1/11/99 Hearing Transcript 4:22-5:3). Class counsel retained Hilsoft 6 At the time Judge Pointer supervised the notification plan, Rule 23 set forth the following notice guideline if the court certified the class pursuant to Rule 23(b)(3): In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel. FED. R. C IV. P. 23(c)(2) (1998). In 2003, Rule 23(c)(2) was amended to identify the following details that must be included for adequate notice in the context of a Rule 23(b)(3) class certification: "(i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23( c)(3)." FED. R. CIV. P. 23(c)(2) (2009). 10 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 11 of 114 Notifications to design and to implement publication notice of the class settlement. (Doc. #269-12, Hilsee Aff. ¶ 1). The court approved the text of the notice, and Hilsoft Notifications designed the layout and selected the appropriate magazines. (Doc. #269-12, Hilsee Aff. ¶ 2). Hilsoft Notifications placed the notices in the October 28, 1998 edition of USA Today and the October 30, 1998 edition of People Magazine. (Doc. #269-12, Hilsee Aff. ¶ 2). Based on available data at the time, the total female readership of USA Today was 1,460,000, and the total female readership of People Magazine was 25,181,000. (Doc. #269-12, Hilsee Aff. ¶ 3). Together, the publications reached an estimated 26,641,000 females. (Doc. #269-12, Hilsee Aff. ¶ 3). In addition to the USA Today and People Magazine notices, another notice, approved by Judge Pointer, was placed in the December 7, 1998 edition of Modern Healthcare Magazine, with a total readership of 76,482. (Doc. #269-13, Klausner Aff. ¶¶ 3-4). The notice contained in the magazine was also posted to the magazine's website from November 23, 1998 until December 7, 1998. (Doc. #269-13, Klausner Aff. ¶ 4). Finally, Judge Pointer placed notice of the settlement and request for objections on the website supervised by the court. (Doc. #269-6, 1/11/99 Hearing Transcript 5:7-10). This notice appeared from October 1998 until January 1999. (Doc. #269-6, 7 1/11/99 Hearing Transcript 5:7-10). The notices, distributed through various media noted above, each contained the following details: (1) the Northern District of Alabama had preliminarily certified and approved a $31.5 million mandatory class settlement against Inamed and its subsidiaries; (2) if approved, the mandatory class settlement would extinguish all legal claims, filed or otherwise, against Inamed by women who 7 The online notice remains available. Breast Implant Litigation Notice, http://www.fjc.gov/BREIMLIT/ ORDERS/ notice47.htm (last visited April 28, 2010). 11 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 12 of 114 received the company's implants prior to June 1, 1993; (3) certification and settlement objections must be postmarked no later than December 11, 1998; (4) a copy of the proposed settlement was available for free via mail, fax, or the Internet; and (5) the court had set a hearing on final certification and approval on January 11, 1999 at the Federal Courthouse in Birmingham, Alabama. C. Hearing Regarding Certification of the Inamed Settlement Class On January 11, 1999, Judge Pointer held a hearing to consider the propriety of class certification and settlement approval. (Doc. #269-6, 1/11/99 Hearing Transcript 1). At the hearing, Judge Pointer, along with a member of the class's negotiation committee, Leslie Bryan, agreed that, to the extent that a conflict could arise between current and future claimants, that conflict was relevant only to the plan of distribution – not the decision to certify the limited fund class: THE COURT: Well, I can certainly foresee that if the limited-fund settlement is approved, that is this stage, and let's say there is no appeal, that when you come to the second phase of determining how to most equitably distribute that amount, you could at that point have potential conflicts as between someone who already has an injury, perhaps even has a lawsuit, and someone who hasn't had any kind of injury and no lawsuit. That conflict could arise at that point. MS. BRYAN: Yes, sir. THE COURT: MS. BRYAN: But I am not sure that there is any conflict at this point as between those two groups in terms of whether it's better to have 31.5 million rather than to have zero. That's correct, Your Honor. And frankly, that's the reason that we approached this settlement the way that we did. Our goal was to maximize the pot of money that could be 12 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 13 of 114 THE COURT: available to all claimants without being concerned about how the distribution mechanism would come about. We were convinced that this was the maximum amount of money that could be available. . . . . But if that conflict were to develop as between people with present injuries, people and perhaps present lawsuits or have already received 80 percent but are still looking for 20 percent, which has already been determined, versus those who have not had any injury, no lawsuit at all, that presumably, that conflict or resolution of that would come not at this stage but at a subsequent stage and indeed could produce hearings or appeals at that point. But at that time you would at least know you had money to deal with rather than not having anything to deal with. MS. BRYAN: Yes, sir. That's certainly been our perspective. (Doc. #269-6, 1/11/99 Hearing Transcript 46:22-48:12). To be sure that this conclusion represented the interests of potential future claimants, Judge Pointer questioned another member of the plaintiffs' negotiation committee, Elizabeth J. Cabraser, regarding the composition of the class representatives: THE COURT: Well, do you have . . . a class representative who has no manifested injury? MS. CABRASER: We have class representatives with no manifested injury, we have class representatives with what could be considered minor to moderate injuries, and we have at least one class representative . . . who is disabled, totally disabled, very seriously injured. 13 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 14 of 114 (Doc. #269-6, 1/11/99 Hearing Transcript 59:4-12). Finally, in light of these concerns, Judge Pointer acknowledged the potential utility of sub-classing during the second phase of the settlement 8 approval process. THE COURT: Well, you might have to have some subgrouping at a time of determining a plan of distribution. There is certainly the potential for conflict or competition at that point. But I take it the position is at this stage, in terms of whether to have 31 and a half million or have zero, you don't see a conflict between any of the group? injury MS. CABRASER: No, we don't, Your Honor. We believed everone [sic] in this class, regardless of the degree of is injury or whether manifested or unmanifested, has an overriding community of interest in obtaining as much as possible as soon as possible to come under the control of the Court for the benefit of the class. If it's necessary to designate formal sub-classes or subgroups at a future time, that could be done, we believe, using the present representatives, or the Court always has the power to designate additional representatives. (Doc. #269-6, 1/11/99 Hearing Transcript 60:13-61:4). Additionally, Judge Pointer heard objections from others potentially affected by the class settlement. For example, Jennifer Chism, who had not yet manifested any injury, filed an objection and appeared at the hearing. Chism's first objection concerned the proposal's failure to specify a distribution scheme. (Doc. #269-6, 1/11/99 Hearing Transcript 99:12-14). To this objection, Judge Pointer countered, "I think, as I have tried to explain, it's my view that it is better to look at that 8 At this stage, Judge Pointer was considering only whether to certify a mandatory settlement class pursuant to Rule 23(b)(1)(B), which Inamed would fund with $31.5 million. A plan for distributing the $31.5 million was not yet under review. 14 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 15 of 114 problem only if, in fact, there is a settlement and we have money to distribute. If there is no money to distribute, the potential for conflicts or for proper distribution in my view would be essentially premature." (Doc. #269-6, 1/11/99 Hearing Transcript 99:15-20). Second, Chism likened the settlement proposal to "blackmail" because Inamed, according to Chism, was essentially saying "that 'If you want more money, we are going to file for bankruptcy.' [Chism did not] want to play that either. [She wanted] everything [Inamed] had." (Doc. #269-6, 1/11/99 Hearing Transcript 101:12:16). To this objection, Judge Pointer responded, "One of the problems is everything they have may be zero." (Doc. #269-6, 1/11/99 Hearing Transcript 101:18-19). Finally, Chism raised the possibility of opting-out of the settlement class: MS. CHISM: THE COURT: Okay. Okay. Last one, the opt-out issues as this mandatory class under section 23(b)(1). I can't opt out, so my right to pursue any future action, since I have had no problems to date, I have no right to pursue after the company – let's just say five years from now. So I see it as a payoff. Do I accept the little money that I am going to get now and take it whereas I have no court of action at a later date if something should happen? And that's one reason why the argument may very well be made that although you have not had any problems thus far, since you may have problems in the future, then maybe you should get the same amount as someone who has already had problems. I mean, that's one of the arguments about distribution, that maybe there shouldn't be any distinction in terms of a distribution plan between those that have had problems and those who have not. (Doc. #269-6, 1/11/99 Hearing Transcript 105:19-106:10). 15 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 16 of 114 Aside from Chism's objections, Carol Kartagener, attorney for Allison Jo Golden (a potential class member who was suffering from extreme disability), filed objections and appeared on behalf of her client. Specifically, Kartagener urged the court, if it certified the class and approved the settlement, to "exercise[] its discretion . . . [to] still allow class members to opt out." (Doc. #269-6, 1/11/99 Hearing Transcript 116:23-25). Judge Pointer responded: THE COURT: Let me just tell you this. There is no way that's going to happen. If I approve this, it's not going to be with any opt-out rights because that's not what is before the Court. There is no way I can do that. So that's simply not a viable option. (Doc. #269-6, 1/11/99 Hearing Transcript 117:1-5).9 9 The court received several other objections to the proposed course of action. One objector, Charles Robb, criticized the proposal's release of various parties. (Doc. #269-6, 1/11/99 Hearing Transcript 84:13-22). Another objector, Beverly Miller, questioned the interplay between the potential payout and medical care providers. (Doc. #269- 6, 1/11/99 Hearing Transcript 87:23-88:21). Still another, Amber Ratliffe, questioned whether a payout – as opposed to stock options – was the prudent course. (1/11/99 Hearing Transcript 94:22-95:5). Jacquelyn Brown, a registered nurse, appeared, generally lambasted Inamed as a manufacturer of a dangerous product, and suggested that more money should fund the settlement. (Doc. #269-6, 1/11/99 Hearing Transcript 95:9-97:16). Various other concerns were presented to Judge Pointer at the hearing through written objections. In terms of written objections, class members raised the following concerns: (1) the settlement fund was insufficient; (2) future claimants should be entitled to opt out and reserve legal rights; (3) the settlement lacked a predetermined plan of distribution; (4) mandatory class members have a right to opt out under Phillips Petroleum Co. v. Shutts, 474 U.S. 797 (1985); (5) notice was inadequate as to future injury claimants; (6) the settlement would violate the Rules Enabling Act; (7) the settlement would improperly sidestep the Bankruptcy Act; (8) whether a limited fund truly existed in light of Inamed's slight economic turnaround as a result of Judge Pointer provisionally certifying a mandatory class action; and (9) whether Judge Pointer should delay consideration in light of the Supreme Court's pending decision in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). (D oc. #290-5, Resp. of Inamed). Defendants' counsel responded to each objection. (Doc. #45). Class Counsel also responded to these objections. (Doc. #290-5, Resp. of Inamed). In addition to the nine topic areas previously mentioned, Class Counsel additionally addressed an objection concerning whether and to what extent the court had jurisdiction – personal or otherwise – to enjoin parallel state court proceedings. (Doc. #290- 6, Resp. of Settlement Class Counsel at 11). 16 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 17 of 114 D. 1999 Certification of the Inamed Settlement Class 1. Scope of the Inamed Settlement Class Despite the objections to the settlement, on February 1, 1999, Judge Pointer entered Order 47A (Doc. #59), which certified a mandatory non-opt-out settlement class related to claims 10 involving complications from Inamed breast implants. The class's members included "all persons and entities, wherever located, who have or may in the future have any unsatisfied claim (whether filed or unfiled, pending or reduced to judgment, existing or contingent, and specifically including claims for alleged injuries and damages not yet known or manifest) . . . related to, or involving Inamed Breast Implants that were implanted in an operation that occurred before June 1, 1993." (Doc. #59, Order 47A ¶ 2(a . In terms of Order 47A's scope, Judge Pointer expansively defined a "settled claim" as any and all Breast Implant Related claims . . . whether known or unknown, asserted or unasserted, regardless of legal theory, that are or may be asserted now or in the future by any and/or all Settlement Class Members against any or all of Inamed . . . . "Settled Claims" include, without limitation: (1) any and all claims of personal injury and/or bodily injury, damage, death, emotional or mental harm; (2) any and all claims for alleged economic or other injury or loss or for statutory damages under any state statute; (3) any and all claims for medical monitoring and claims for injunctive or declaratory relief based on, arising out of, or relating to Breast Implants; (4) any and all claims for loss of support, services, consortium, companionship, and/or society by spouses, parents, children, other relatives or "significant others" of persons implanted by with Breast Implants; (5) any and all claims for conspiracy or concert of action; (6) any and all wrongful death or survival actions; and (7) any and all claims for 10 On June 23, 1999, nearly five months after Judge Pointer entered Order 47A, the Supreme Court decided Ortiz v. Fibreboard Corp., 527 U .S. 815 (1999), which is the Court's most comprehensive treatment of Rule 23(b)(1)(B). After entering Order 47A, Judge Pointer observed that "[u]nlike the situation in Ortiz . . ., there cannot be any serious dispute about this being a 'limited' fund case – indeed an extremely 'limited' fund case to the extent of providing what most claimants would view as only 'de minimis' distributions." (Doc. #70, Order 47B at 2 n.6). 17 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 18 of 114 punitive or exemplary damages based on or arising out of or related to Breast Implants. (Doc. #59, Order 47A ¶ 2(c . Order 47A "conclusively compromised, settled and released" every "settled claim" of each member of the class. (Doc. #59, Order 47A ¶ 6). Ensuring global compromise of all claims, pending or otherwise, the Order permanently enjoined all members of the Inamed Settlement Class "from instituting, asserting or prosecuting against Inamed . . . in any pending or future action in any federal or state court, any Settled Claim that the member had, has, or may have in the future." (Doc. #59, Order 47A ¶ 7). To protect and effectuate this judgment, Order 47A vested in the United States District Court for the Northern District of Alabama "exclusive and continuing jurisdiction as needed or appropriate to (1) implement, interpret, and enforce the Settlement Agreement, (2) administer, allocate, and distribute the settlement fund, and (3) rule on any applications for costs and expenses incurred in implementing [Order 47A] and the Settlement Agreement." (Doc. #59, Order 47A ¶ 10). Order 47A was not appealed. 2. Basis for Certifying the Inamed Settlement Class According to Judge Pointer, the proposed class satisfied Federal Rule of Civil Procedure 23(a)'s threshold requirements for certification: 11 (a) The members of the Inamed Settlement Class, who are reasonably estimated to number in the tens of thousands, are so numerous that joinder of all members is impracticable. 11 According to Rule 23(a), "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." 18 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 19 of 114 (b) (c) (d) There are questions of law or fact common to the Inamed Settlement Class, including whether Inamed's breast implant products were defective and unreasonably dangerous, and whether Inamed's conduct, level of knowledge, or resulting duty would give rise to any liability. No decision on the merits of any of these issues has been made. In addition, the court finds that class members have common interests in determining whether a limited fund exists, avoiding its diminishment by bankruptcy, and establishing equitable procedures for its distribution. The claims of the Representative Plaintiffs are typical of the claims of the Inamed Settlement Class in that they assert the same types of factual and legal liability theories generally asserted by members of the class. In addition, their request for determination of the existence of a limited fund and the establishment of equitable procedures for its distribution seeks to vindicate a common interest that is independent of any factual differences between their personal claims and those of the class at large. The Representative Plaintiffs, who reflect the full spectrum of breast implant claimants ranging from claimants with no manifested injuries to claimants with serious illnesses, and who include both domestic and foreign claimants, will fairly and adequately protect the interests of the Inamed Settlement Class. The court further finds that Settlement Class Counsel, who have a broad range of experience in both individual and class breast implant litigation, are qualified and competent to provide such representation. The court finds that at the present stage of the proceedings, there exist no conflicts of interest among the Representative Plaintiffs or Settlement Class Counsel in that all class members share an overriding common interest in the identification and preservation of a limited fund, and the procurement for the class of the maximum available recovery. In the event divergent interests emerge during later stages of the proceedings, such as proceedings to determine the allocation and distribution of the settlement amount, the court will have the ability in the exercise of the jurisdiction reserved herein to make such further orders or appointments as it deems necessary to ensure that all relevant interests are fairly and adequately represented. 19 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 20 of 114 (Doc. #59, Order 47A ¶ 3(a)-(d . Judge Pointer certified the class pursuant to Rule 23(b)(1)(B), which authorizes class certification if "prosecuting separate actions by or against individual class members would create a risk of . . . adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests." Based on the evidentiary submissions, Judge Pointer concluded that "the costs and risks of individual breast implant claims greatly exceed Inamed's limited resources, which would soon be exhausted if individual litigation were allowed to continue, and that Inamed therefore constitutes a 'limited fund' against which claims are properly subject to class certification under Rule 23(b)(1)(B)." (Doc. #59, Order 47A ¶ 4). He further found that "the settlement fund made available by such certification is substantially greater than the amount, if any, that would be available to pay claims in the absence of such certification." (Doc. #59, Order 47A ¶ 4). Judge Pointer reached this conclusion despite Inamed's limited financial rebound after having announced the proposed settlement. Specifically, prior to April 1998, Inamed's stock price hovered around $3 per share, but after the provisional certification, the stock price rose and averaged around $10 per share, which suggested an aggregate market value of approximately $100 million. (Doc. #290-5, Resp. of Inamed at 11-12). Objectors argued that, based on SEC financial disclosures as well as the rising stock price, the Inamed Class Settlement was not actually a limited fund because the settlement value was less than Inamed's market capitalization. (Doc. #290-5, Resp. of Inamed at 10). 20 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 21 of 114 To this point, Inamed acknowledged that it had, "during the past six months made progress in implementing a number of the elements of restructuring efforts begun earlier . . . . This progress include[d] (1) a 10% workforce reduction, the closing of various administrative offices and lines of business, and other cost-cutting measures, (2) improvement of sales and inventory turnover, and (3) reversal of the significant negative cash flow (as much as $2.0 million per month) experienced by the company during the [three years preceding the settlement]." (Doc. #290-5, Resp. of Inamed at 10). Nevertheless, Inamed contended that market capitalization would have been an improper method for valuation for two reasons: First, stock prices reflect a variety of subjective and objective factors, including expectations about future earnings and cash flow and what risk-taking investors would be willing to pay for them. In Inamed's case, the current stock price undoubtedly reflects a market expectation that the settlement can be completed according to its terms and that the company will, after paying for the settlement, achieve a measure of relief from the tremendous expense and uncertainty that has arisen since the breast implant litigation began [in] 1992. Before the proposed settlement was announced, the company's stock price was much lower. It is circular to say that the company is not a limited fund because the announcement of a mandatory class settlement caused its stock price to rise. As indicated above, such an increase is to be expected, and the improved performance it reflects is essential to obtaining the financing needed to complete any settlement at all. Second, a company's stock price in no sense measures its ability to pay. There is no buyer willing to pay $100 million for Inamed (especially if the vast backlog of pending cases is not resolved through the proposed settlement), and the company has no ability to assess its shareholders for the current trading price of the stock they hold. Nor does the company's improved stock price make possible alternative or additional financing. . . . [T]he company's ability to raise capital is entirely in the control of its senior secured noteholders, who have lent the company $28 million. The senior debt instruments prohibit Inamed from issuing additional debt or shares of common or preferred stock. The senior noteholders demanded these 21 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 22 of 114 restrictions, which are typical for high-risk investment situations like the company, in order to ensure that the company could not, without their consent, place their capital at greater risk due to increased leverage, or dilute their potential equity holdings in the event they converted their debt into common stock. (Doc. #290-5, Resp. of Inamed at 12) (emphasis added). And in any event, Inamed reinforced the point that it "would [have] been unable to afford any significant settlement absent mandatory class treatment. The noteholders have insisted on such treatment as a prerequisite to providing the necessary financing, and the relief from litigation brought about by the settlement's preliminary approval has in large measure made possible the progress in the restructuring on which the noteholders have also insisted." (Doc. #290-5, Resp. of Inamed at 11). Accordingly, despite the objectors' concerns and in light of Inamed's responses, Judge Pointer concluded that the Inamed Class Settlement presented a sufficiently limited fund to warrant Rule 23(b)(1)(B) treatment. 3. Fairness of the Inamed Class Settlement Regarding the terms of the compromise, Judge Pointer, pursuant to Rule 23(e), 12 evaluated the settlement for fairness. Finding that "the settlement was non-collusive and was negotiated in good faith," Judge Pointer found that the settlement passed muster under Rule 23(e) as fair, adequate, and reasonable under the circumstances. (Doc. #59, Order 47A ¶ 5). Specifically, $31.5 million was 12 At the time Judge Pointer considered the propriety of the settlement proposal, Rule 23(e) provided that "[a] class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." FED. R. CIV. P. 23(e) (1998). In 2003, Rule 23(e) was expanded and now requires that, before a "certified class may be settled, voluntarily dismissed, or compromised," the court must approve the proposed settlement, subject to the following procedures and considerations: "(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate. (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. (4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. (5) Any class member may object to the proposal if it requires court approval under subdivision (e); the objection may be withdrawn only with the court's approval." FED. R. CIV. P. 23(e) (2009). 22 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 23 of 114 available to Inamed through various lending arrangements for the sole purpose of globally resolving the claims via a limited fund class settlement. Indeed, absent the class arrangement, Inamed would have been unable to procure the $31.5 million, and having to individually litigate each claim would have inevitably driven the company into bankruptcy. Finding a substantial risk that bankruptcy would have eliminated the possibility of recovery for all claimants, Judge Pointer concluded that the amount of the settlement was fair, adequate, and reasonable. 13 Further ensuring that the $31.5 million represented the maximum payout to class members, the attorneys' fees were paid from the Common Benefit Fund, established years earlier by a coalition of breast implant manufacturers, rather than the Settlement Fund. (Doc. #287, 12/14/09 Hearing Transcript 91:9-22). Additionally, in the context of the fairness inquiry, Judge Pointer responded to the objection raised by several class members at the January 11, 1999 fairness hearing. Several class members objected to the settlement's lack of a predetermined plan for the fund's distribution. In other words, as of the time Judge Pointer was reviewing the settlement, Inamed was required to infuse the fund with $31.5 million, but the parties had yet to finalize the payout scheme. Judge Pointer overruled this objection "on the ground that a plan of allocation may properly be considered at a later point in the proceedings, and is not essential to determination of the initial question of whether the overall 13 Class Counsel additionally were involved with Inamed's settlement with 3M . (Doc. #59, Order 47A ¶ 5(c . Specifically, 3M agreed to release a preexisting contractual indemnity claim against Inamed's subsidiary, McGhan, in exchange for $3 million. (Doc. #59, Order 47A ¶ 5(c . The claim stemmed from McGhan's 1984 purchase of 3M 's plastic surgery business. (Doc. #290-18, Inamed 1998 10-K at 42-43). 3M asserted substantial indemnity claims against Inamed arising from "claims asserted against 3M in lawsuits involving breast implants manufactured" by McGhan. (Doc. #290-18, Inamed 1998 10-K at 43). The potential liability was staggering, and if 3M had litigated rather than settled, then Inamed would have faced the possibility of a significant judgment. (Doc. #287, 12/14/09 Hearing Transcript 109:19-110:5). Initially, Inamed requested that the $3 million payment should be credited against its payment to the Inamed Settlement Class. (Doc. #269-2, Babbitt Aff. ¶ 34). Class Counsel, however, "took a hard line that the class should bear no portion of the 3M liability, and Inamed, with consent of its senior noteholders, capitulated." (Doc. #269-2, Babbitt Aff. ¶ 34). Judge Pointer, aware of the agreement and its importance as a precondition to class settlement, approved the payment as "fair and reasonable from the standpoint of the Inamed Settlement Class." (Doc. #59, Order 47A ¶ 5(c . 23 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 24 of 114 settlement fund available for distribution is adequate in the circumstances." (Doc. #59, Order 47A ¶ 5(e .14 14 Class Counsel did not naively assume that the settlement would have permanently disposed of Inamed as a going concern. Indeed, investors rarely advance financing without some assurance of a return on investment. Understanding this reality, Class Counsel additionally secured access to Inamed's continuing medical studies conducted as to its breast implants: Upon request by Settlement Class Counsel, Inamed agrees to provide the Settlement Class Counsel or their designees access to interim or other reports received from time to time by Inamed, its attorneys, consultants, or persons or entities to whom Inamed has contracted studies or research, of studies concerning Breast Implants, or materials, ingredients, or components thereof, in whole or in part, including reports to the Federal Food and Drug Administration. Inamed Settlement Agreement IV.C.2, available at http://www.fjc.gov/BREIMLIT/ORDERS/inasett.rtf (last visited May 6, 2010). Class Counsel explained the significance of this provision and its non-monetary benefit to the class: W hen [breast implant manufacturers] were later allowed to put [breast implants] on the market for a limited basis for a core study for augmentation patients, they also had to track all those patients in their core study. It was critical to us – recognizing that some day Inamed was going to petition the FDA for a complete removal of any restrictions on the sale of implants, it was critically important to us that we have access to the studies that they were doing as part of the adjunct study and part of their core study. The reason for that was that we heard from class members for years, ["]do not let these things back on the market. W e want you to do everything that you can to fight putting these back on the market.["] So a critical element of the settlement was the ability to get at those studies. W hen it came time in 2003, I believe it was, when the FDA was beginning to consider putting the implants back on the market on an unrestricted basis, we started asking for those studies, and to tell you how contentious our relationship was with Inamed, Your Honor need only look at the docket sheet. There were motions to compel, two trips to the Court of Appeals, emergency motions, responses in 24 hours. It was a highly-contested issue but a critically-important part of the settlement agreement. And once we were able to get access to their information, it allowed the plaintiffs in the litigation to at least get on the same playing field as the manufacturers when it came time to go before the FDA on approval. Otherwise, we would have been absolutely out of luck with no information based on their internal documents. (Doc. #287, 12/14/09 Hearing Transcript 82:3-83:7). Juris's counsel has criticized this aspect of the Settlement, as it suggests that Class counsel "knew the company was going to survive." (Doc. #287, 12/14/09 Hearing Transcript 107:4). In response, Leslie Bryan, member of Class Counsel, stated that, "[i]f [Juris's counsel] is suggesting that we should have insisted that Inamed get out of the breast implant business, I am standing here and telling [Juris's counsel] we insisted until we were blue in the face, and we insisted with Mentor Corporation that had a similar limited fund settlement that they get out of the breast implant business. Judge, you don't always get what you want, and yes, did we know they were going to continue to manufacture implants, we knew that they were going to continue to manufacture implants." (Doc. #287, 12/14/09 Hearing Transcript 107:24-108:8). 24 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 25 of 114 E. 1999 Plan of Distribution As noted above, Order 47A only (1) certified a limited fund class and (2) approved the settlement insofar as it required Inamed to infuse the fund with $31.5 million. The court, having previously tabled discussion regarding the plan of distribution, revisited that concern. Class counsel presented a proposed plan of fund distribution, which called for a pro rata division of the $31.5 million among all claimants, without reference to a claimant's level of injury. (Doc. #70, Order 47B at 1). In May 1999, the court preliminarily approved the proposed plan of distribution and ordered notice to be sent to approximately 350,000 implant-recipients on file with the Claims Office. (Doc. #70, Order 47B at 1). The notice requested objections and comments on the proposal. (Doc. #70, Order 47B at 1). Although 350,000 notices were mailed, only about 45,000 of the claimants were likely Inamed Settlement Class members. (Doc. #70, Order 47B at 2). Of the 45,000 affected, the court received sixty-two objections to the proposed distribution plan. (Doc. #70, Order 47B at 2). On July 6, 1999, the court held a fairness hearing pursuant to Rule 23(e). (Doc. #70, Order 47B at 2). Eleven of the objections concentrated on the perceived inequity of the plan's failure to differentiate between claimants without injuries and claimants with current injuries. (Doc. #70, Order 47B at 6). Judge Pointer overruled these objections given the unique financial constraints affecting the settlement terms: If the amount of the funds available for distribution were substantially greater and/or the potential distributees not so numerous, the court would agree that such a distribution plan would be preferable notwithstanding the several years delay in receiving and reviewing additional claims and documentation of such criteria. This fund is, however, so severely limited in relation to the number of potential claimants that such a plan – with its substantially increased 25 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 26 of 114 administrative costs – would not greatly increase the amount of distribution to those determined to be eligible for enhanced benefits and would, of course, decrease even more the meager distributions to other class members. Class counsel – some of whom represent clients with existing medical problems and others of whom represent clients without presently documented problems – have, with the Court, struggled with this problem and have reluctantly come to the conclusion that a pro rata division remains the better – and indeed only workable – solution under the facts of this case. The court concurs in this recommendation, which, as noted, includes a waiver of any claims by class counsel for fees in connection with this settlement. (Doc. #70, Order 47B at 6). Additionally, four out of the sixty two respondents filed written objections claiming "that they have thus far been unable to identify the manufacturer of their implants and hence may be unable to provide the necessary information for eligibility within the stated deadline." (Doc. #70, Order 47B at 3). Nevertheless, Judge Pointer concluded that "given potential barriers to claims arising from statutes of limitations and the implicit prospect of deferring division until they have (at some undetermined point in the future) been able (if ever) to obtain such information, their objection does not call for any change in the plan." (Doc. #70, Order 47B at 3). In short, Judge Pointer, although acknowledging the imperfection of the pro rata division, concluded that any of its alternatives were inferior. (Doc. #70, Order 47B at 6). Thus, Judge Pointer approved "as the distribution plan for the Inamed Settlement Fund [an] equal pro rata division of the net settlement funds . . . and prompt distribution among all eligible class members returning a satisfactory claim form by October 1, 1999, without any differences in benefits based on . . . the extent of demonstrable injuries or expenses . . . ." (Doc. #70, Order 47B at 6). Based on the aggregate value of the fund and in light of the total number of claimants, each claimant received 26 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 27 of 114 approximately $725.00. (Doc. #277-4, 10/3/08 Hearing Transcript 53:14-15). Order 47B was not appealed. F. Inamed's Post-Settlement Financial Position For fiscal year 1998 and as compared to fiscal year 1997, Inamed's net sales increased by 24%. (Doc. #290-18, Inamed 1998 10-K at 2). Specifically, Inamed reported the following net sales for fiscal years 1997 and 1998, respectively: $131,566,000 and $189,295,000. (Doc. #290-18, Inamed 1998 10-K at 15). For fiscal year 1998, Inamed reported net income of $11,973,000, compared to its net loss in 1997 of $41,577,000. (Doc. #290-18, Inamed 1998 10-K at 15). However, this "turnaround in profitability" was attributable to: (1) aggressive restructuring and streamlining efforts; (2) the likely resolution of the breast implant litigation; and (3) the availability of alternative financing (which would not have been available in the absence of the probable resolution of the litigation). (Doc. #290-18, Inamed 1998 10-K at 16). To be sure, however, Inamed remained a heavily leveraged company. According to its balance sheet, Inamed's 1998 book value was negative $15,625,000. (Doc. #290-18, Inamed 1998 10-K at 15). Its 1997 book value had been negative $46,689,000. (Doc. #290-18, Inamed 1998 10-K at 15). Thus, although 1998 saw a significant improvement in Inamed's book value, it was still a debt-ridden company. Several months into 2000, Inamed filed with the SEC its 10-K for fiscal year 1999, which reflected its finances as of December 31, 1999. (Doc. #254-8, Inamed 1999 10-K). For fiscal year 1999, Inamed reported $189.3 million in net sales and $43.7 million in operating income. (Doc. #254-8, Inamed 1999 10-K at 4-5). Inamed candidly attributed its profitability to two aggressively pursued goals: (1) "settling the breast implant litigation," and (2) "initiat[ing] a cost reduction program that included reducing overhead through an approximate 10% worldwide reduction in work 27 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 28 of 114 force; eliminating underutilized corporate offices and the Company's European sales headquarters; entering into a strategic alliance with the Company's supplier of silicone raw materials; moving the Company's corporate headquarters from Las Vegas to Santa Barbara; and terminating or selling unprofitable business lines." (Doc. #254-8, Inamed 1999 10-K at 30). On September 1, 1999, Inamed purchased Collagen Aesthetics, Inc. for approximately $159 million and funded the acquisition through substantial borrowing. (Doc. #254-8, Inamed 1999 10-K at 7; Doc. #293-2, Exhibit B at 2). In the same year, Inamed raised approximately $78.3 million through a public offering of common stock. (Doc. #254-8, Inamed 1999 10-K at 7). The company used the proceeds to pay down the debt incurred in connection with the purchase of Collagen Aesthetics, Inc. (Doc. #254-8, Inamed 1999 10-K at 7). Nevertheless, in the wake of the Inamed Class Settlement, the company acknowledged that its financial viability remained precarious given the nature of the products manufactured: Sales of our breast implant, tissue expander and collagen- based facial implant products account for a substantial majority of our net sales. We expect our revenues to continue to be based primarily on sales of these principle products. Adverse rulings by regulatory authorities, product liability lawsuits, introduction of competitive products by third parties, the loss of market acceptance or other adverse publicity for these principal products may significantly and adversely affect our sales of these products and, as a result, would adversely affect our business, financial condition and results of operation. . . . . We face an inherent risk of exposure to product liability claims alleging that the use of our technology or products has resulted in adverse health effects. The risks of litigation exist even with respect to products that have received or in the future may receive regulatory approval for commercial sale. . . . In particular, the manufacture and sale of breast implant products entails significant risk of product liability claims due to potential allegations of possible 28 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 29 of 114 disease transmission and other health factors, rupture or other product failure and product recalls. . . . (Doc. #254-8, 1999 Inamed 10-K at 37-38). G. Zuzanna Juris's 2006 Litigation In 1989, Zuzanna Juris received her first breast implants. (Doc. #277-4, 10/3/08 Hearing Transcript 24:23-25). In 1991, as a result of capsular contraction, a doctor removed the implants, and Juris received her second breast implants. (Doc. #277-4, 10/3/08 Hearing Transcript 24:18-22, 26:6-9). In the early 1990s, after the FDA placed a moratorium on breast implant procedures and certain breast implants were being recalled, Juris consulted her plastic surgeon regarding whether her second implants were safe. (Doc. #277-4, 10/3/08 Hearing Transcript 22:7-13). Her plastic surgeon told her that the silicone ban "had nothing to do with [her implants] . . . and [that she] had the latest, most modern implants available on the market, and that they [would] last [her] a lifetime . . . ." (Doc. #277-4, 10/3/08 Hearing Transcript 22:16-23).15 Around 2002, Juris began experiencing "chronic fatigue, severe chest wall and breast pain, capsular contraction, joint and muscle pain, muscle weakness, significant weight loss, severe headaches, skin rashes, memory loss, and loss of mental acuity." (Doc. #217-5, Juris Compl. ¶ 28). Eventually, in May 2005, a surgeon removed Juris's implants. (Doc. #217-5, Juris Compl. ¶ 28). Upon removal, the surgeon discovered that Juris's implants had "deflated and leaked silicone and silicone gel into her chest cavity and axillary lymph nodes. In addition, the implant capsule was chronically infected. It was determined that . . . [Juris] was suffering from silicone-related immune 15 Other than this testimony, the record is silent as to why Juris – who was concerned enough to make inquiry to her doctor about the safety of her new implants – did not learn from him the name of the company who manufactured them. 29 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 30 of 114 dysfunction, atypical neurological disease and infection." (Doc. #217-5, Juris Compl. ¶ 28). It was only after the removal that Juris learned that Inamed manufactured her implants – she did not know that her implants were Inamed brand (1) when they were implanted in 1991 or (2) during the time period prior to or contemporaneous with Judge Pointer entering Orders 47, 47A, or 47B. (Doc. #277-4, 10/3/08 Hearing Transcript 37:3-8). On March 23, 2006, Allergan, Inc. purchased substantially all of Inamed's outstanding common stock. (Doc. #217-5, Juris Compl. ¶ 8). By purchasing Inamed, Allergan also purchased Inamed's wholly-owned subsidiary, McGhan Medical Corporation. (Doc. #217-5, Juris Compl. ¶ 8). On May 16, 2006, Juris filed a lawsuit in the Superior Court of California for the County of Los Angeles (the "California State Court") against Allergan, Inamed, and McGhan. (Doc. #217-5, Juris Compl. ¶¶ 2-7). In her complaint, Juris, alleging injuries related to Inamed/McGhan breast implants that she received, brought claims against Allergan, Inamed, and McGhan for (1) strict liability; (2) negligence; (3) breach of express warranty; (4) breach of implied warranty; (5) deceit/negligent misrepresentation; and (6) intentional infliction of emotional distress. (Doc. #217-5, Juris Compl. ¶¶ 36-72). On September 20, 2006, Inamed and Allergan filed a motion requesting this court to issue an order requiring Juris and her attorney to show cause why they should not be held in contempt of the injunction embodied in Judge Pointer's Order 47A. (Doc. #208). Specifically, Inamed and Allergan contended that, because (1) Juris is a member of the Inamed Settlement Class and (2) her claims against Inamed and Allergan are "settled claims" as defined in Order 47A, Judge Pointer's injunction precludes her lawsuit. In response, on October 19, 2006, counsel for both parties 30 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 31 of 114 requested the California state court to stay the proceedings pending decision by the Northern District of Alabama. (Doc. #277-2, Decl. of Cynthia LeBow ¶ 8). In this court, on November 17, 2006, Juris filed her opposition to the show cause motion. (Doc. #217). On January 5, 2007, Inamed and Allergan replied to Juris's opposition. (Doc. #225). In July 2008, Judge Clemon (who previously acted as the MDL transferee judge in 2:92-CV-10000) scheduled a hearing on the motion, and on October 3, 2008, Judge Clemon traveled to California and heard evidence and argument from both parties. (Doc. #277-2, Decl. of Cynthia LeBow ¶¶ 10-11; Doc. #277-4, 10/3/08 Hearing Transcript 1). On April 14, 2009, Juris filed a post-hearing memorandum responding to various issues raised at the hearing. (Doc. #265). 16 On April 28, 2009, Inamed and Allergan responded to Juris's memorandum. (Doc. #269). On May 8, 2009, Juris filed her reply submission to Inamed and Allergan's responsive memorandum. (Doc. #270). On November 12, 2009, Juris filed a notice with the Northern District of Alabama, which informed the court of her intention to proceed with the California litigation. (Doc. #277). Specifically, on the same day as the notice filed with this court, Juris filed a motion with the California state court requesting it to lift the voluntarily agreed upon stay. (Doc. #277-2). The next day, this court informed the parties that a hearing on Defendants' motion would be held within two to four weeks. As a result, the California State Court continued Juris's hearing until December 18, 2009. (Doc. #278-2). On December 14, 2009, the court heard oral argument from Juris's counsel, Defendants' counsel, and Settlement Class Counsel. On January 25, 2010, Juris and Defendants submitted post-hearing briefs. (Docs. #288, 289). On February 8, 2010, they submitted post-hearing 16 On November 12, 2008, Judge Clemon, who previously presided over this matter, recused, and the case was reassigned to Magistrate Judge Greene. (Doc. #258). In February 2009, this case was transferred to the undersigned. 31 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 32 of 114 reply briefs. (Docs. #292, 293). Accordingly, this matter, having undergone three rounds of briefing and two hearings, is now properly under submission. II. STANDARD OF REVIEW The California proceedings have unquestionably evolved into a collateral attack on Orders 47A and 47B, insofar as they purportedly precluded Juris's individual claims against Defendants. In particular, Juris filed her Complaint in California State Court and asserted Settled Claims otherwise extinguished by this court's resolution of the Inamed class action. (Doc. #217-5). In response, Defendants filed a demurrer as to Juris's Complaint and argued, inter alia, that the "doctrine of res judicata also gives conclusive effect to the settlement and bars [Juris] from re-litigating her claims in this case." (Doc. #217-7, Defendants' Demurrer at 4). In response, Juris contended that application of res judicata would deprive her of the constitutional right to due process. (Doc. #217 ¶ 15). Raising res judicata as a defense to a settled claim and the responsive argument that res judicata is inapplicable because of an alleged procedural violation is the paradigmatic collateral proceeding. When Defendants filed their Motion for Order to Show Cause, which commenced proceedings in this court, Juris initially contended that she may select the forum in which to conduct her collateral attack: "A class member has the right to challenge, in her local forum, the approval of a mandatory class settlement for failure to satisfy due process requirements of adequate representation or proper notice." (Doc. #217 at 19). Despite her initial reservation, Juris subsequently requested the California State Court to stay those proceedings because "it is necessary and appropriate for [the Northern District of Alabama] to review and interpret Order No. 47A, and 32 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 33 of 114 to determine its effect on [her] claims in [the state court proceedings]." (Doc. #269-1, Joint Notice at 8). In light of this statement, Defendants classified Juris's newly raised argument in this court regarding forum selection as "disingenuous at best." (Doc. #269 at 8 n.2). In response, Juris stated that "[d]espite [her] continuing belief that the California court could properly address the issue of whether [her] claims were barred by res judicata, out of deference for [the Northern District of Alabama] Plaintiff Juris and her counsel nonetheless agreed that this court could rule on the issue in the first instance." (Doc. #270 at 1 n.2) (emphasis added). Moreover, after this court's December 2009 hearing, Juris submitted a brief, which altogether dropped her argument that she may collaterally attack Order 47A in California State Court. 17 (Doc. #288). Rather, Juris exclusively argued that (1) application of res judicata to her claims would violate due process; (2) this court lacks personal jurisdiction over her; and (3) Judge Pointer erroneously certified the class action and erroneously approved the settlement. (Doc. #288). The court highlights the evolution of Juris's arguments because they are relevant in determining the appropriate analytical framework the court must employ. Indeed, it is axiomatic that a party must identify some basis in law for requesting judicial action. Juris's arguments have evolved from defensive, forum-specific contentions to offensive, relief-oriented requests. Her arguments, if accepted by this court, would require dissolving the anti-suit injunction, at least insofar as it concerns her, and thereby permitting the California State Court litigation to proceed. The court 17 Even though it appears that Juris has abandoned this argument, the court, nevertheless, addresses this contention. See discussion infra Part III.A. 33 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 34 of 114 construes the affirmative nature of her request as a motion for relief pursuant to Federal Rule of 18 Civil Procedure 60(b), which authorizes a court to "relieve a party or its legal representative from a final judgment, order, or proceeding" for various reasons. See 3 NEWBERG ON CLASS ACTIONS § 8.30 (4th ed. 2009) ("A related, collateral method for attacking judgment finality after expiration of the appeals period is available under Rule 60(b)."). Rule 60(b) warrants such relief only under limited circumstances: (1) (2) (3) (4) (5) (6) mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; the judgment is void; the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or any other reason that justifies relief. FED. R. CIV. P. 60(b)(1)-(6). The particular subdivision of Rule 60(b), and its attendant contours, that each argument fits is addressed, as applicable, throughout this Memorandum Opinion.19 III. DISCUSSION Juris asserts essentially four arguments: (1) she may raise a collateral attack against the Inamed Class Settlement in the forum of her choice; (2) in light of Ortiz v. Fibreboard Corp., 527 18 Juris has never filed a "motion" for affirmative relief from the Inamed Settlement. Her briefs, however, as well as her counsel's representations at oral argument, are undeniably requests for relief. Typifying the affirmative nature of her request, Juris's counsel stated the following at the December 14, 2009 hearing: "[O]bviously what we have been here for is allowing [Juris] to proceed with her claims. I mean that's what this is all about." (Doc. #287, 12/14/09 Hearing Transcript 115:25-116:2). As a functional matter, and avoiding rigid formalism, the court construes Juris's various requests as Rule 60(b) motions. 19 Although Rule 60(b) motions must be brought within one year of judgment or within a reasonable period, depending on the particular basis for relief, FED. R. CIV. P. 60(c), Defendants have not contended that Juris's requests are untimely. Thus, the court assumes without deciding that Juris's request satisfies Rule 60(c). 34 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 35 of 114 U.S. 815 (1999), Judge Pointer erroneously certified the Inamed Class under Rule 23(b)(1)(B); (3) even if correctly certified, she has a right to opt out of the Inamed Settlement Class, and absent such a right, this court lacks personal jurisdiction over her; and (4) Judge Pointer's anti-suit injunction, contained in Order 47A, is unenforceable because it does not satisfy the exceptions to the Anti-Suit Injunction Act. The court addresses each of Juris's arguments in turn. A. Proper Forum for a Collateral Attack20 At least at one point earlier in this case, Juris contended that she alone has the right to select the court in which to conduct the collateral review of this court's certification and approval of the Inamed settlement. Since that time, she appears to have abandoned this argument. That is, Juris has now apparently consented to this court's jurisdiction when she stated that "it is necessary and appropriate for [the Northern District of Alabama] to review and interpret Order No. 47A, and to determine its effect on [her] claims in [the state court proceedings]." (Doc. #269-1 at 8). Nevertheless, out of an abundance of caution, the court will fully analyze the issue of the appropriate forum on the merits. When she did make the argument regarding forum choice, Juris relied on three cases: (1) Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2002); (2) Stephenson v. Dow Chemical Co., 273 F.3d 249 (2d Cir. 2001), aff'd in part, 539 U.S. 111 (2002); and (3) In re Real Estate Title & Settlement Services Antitrust Litigation, 869 F.2d 760 (3d Cir. 1989). Contrary to Juris's contentions, these cases do not help her. 20 This challenge is ancillary to the validity of the judgment and, therefore, is not evaluated through the lens of Rule 60(b). 35 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 36 of 114 First, in Syngenta, the Supreme Court addressed whether a state court action, proceeding contrary to a federally approved class settlement, could be removed via the All Writs Act. 537 U.S. at 30-31. In affirming the Eleventh Circuit, the Supreme Court held that "[b]ecause the All Writs Act does not confer jurisdiction on the federal courts, it cannot confer the original jurisdiction required to support removal pursuant to [28 U.S.C.] § 1441." Id. at 33. Syngenta stands for the limited (and unspectacular) proposition that the All Writs Act is not "jurisdictional caulk . . . plug[ging] the cracks in federal jurisdiction through which crafty litigants can escape the effect of a federal order." Henson v. Ciba-Geigy Corp., 261 F.3d 1065, 1070 (11th Cir. 2001). In Syngenta, the Supreme Court's analysis focused only on whether the All Writs Act is a valid source of federal removal jurisdiction. Syngenta, 537 U.S. at 33. Unlike the posture in Syngenta, Defendants have not attempted to remove Juris's state court action and to transfer it to this court. Instead, this court, pursuant to Order 47A, retains continuing ancillary enforcement jurisdiction over the settlement reached in the Inamed class action. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994) (holding that a federal court may retain jurisdiction to enforce a settlement agreement). But more saliently, Syngenta does not reach the critical issue: whether Juris has a right to mount a collateral attack in the forum of her selection.21 Second, in Stephenson, the Second Circuit reviewed a decision enjoining state court litigation concerning claims related to Agent Orange injuries. Stephenson, 273 F.3d at 251. In particular, in 1983, the Eastern District of New York certified a class action pursuant to Rule 23(b)(3), which 21 As an aside, Syngenta does offer the following advice to class action defendants hoping to control collateral proceedings: "One in [a class action defendant's position] may apply to the court that approved a settlement for an injunction requiring dismissal of a rival action. [A class action defendant] could also have sought a determination from the . . . state court that [the class member's] action was barred by the [preexisting] judgment . . . ." Syngenta, 537 U.S. at 34 n.*. Although far from a formal holding, the Court's observation does hint that a class member's choice of forum is not as flexible as Juris suggests and that, indeed, this is a proper forum to collaterally review Orders 47A and 47B. 36 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 37 of 114 included "those persons who were in the United States, New Zealand or Australian Armed Forces at any time from 1961 to 1972 who were injured while in or near Vietnam by exposure to Agent Orange . . . ." Id. at 252 (citation omitted). On the eve of trial, the parties settled. Id. (citation omitted). According to the settlement's terms, the "defendants would pay $180 million into a settlement fund." Id. (citation omitted). The class included individuals who had not yet manifested injuries. Id. (citation omitted). Additionally, the district court retained continuing jurisdiction to supervise and enforce the terms of the agreement pending final disposition of the settlement fund. Id. (citation omitted). After the district court held several fairness hearings, it approved the settlement as fair, adequate, and reasonable. Id. (citation omitted). The district court rejected a motion to certify sub-classes. Id. (citation omitted). According to the settlement, payments would begin January 1, 1985 and end December 31, 1994: "No payment will be made for death or disability occurring after December 31, 1994." Id. at 253 (quoting In re "Agent Orange" Prod. Liab. Litig., 611 F. Supp. 1396, 1417 (E.D.N.Y. 1985 . Furthermore, the court enjoined "all class members from commencing any action arising out of Agent Orange exposure." Id. at 254. The Second Circuit "affirmed class certification, settlement approval and much of the distribution plan." Id. at 253 (citation omitted). In 1998, Joe Isaacson filed a lawsuit in New Jersey state court against the defendants in the above settlement. Id. at 255. In his complaint, he alleged that, as a result of being exposed to the defendants' Agent Orange in Vietnam from 1968 to 1969, he had developed non-Hodgkin's lymphoma in 1996. Id. at 255-256. Similarly, in 1999, Daniel Stephenson filed a lawsuit in the Western District of Louisiana against the same released defendants. Id. at 256. In his complaint, 37 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 38 of 114 he alleged that, as a result of being exposed to the defendants' Agent Orange in Vietnam from 1965 to 1970, he had developed bone marrow cancer in 1996. Id. at 255-56. After removing Isaacson's state court lawsuit, the defendants petitioned the Judicial Panel on Multidistrict Litigation to transfer both Isaacson's and Stephenson's lawsuits to the Eastern District of New York. Id. at 256. The MDL Panel granted the transfer, and before the Eastern District of New York, the defendants filed a Rule 12(b)(6) motion to dismiss, which asserted that "plaintiffs' claims were barred by the 1984 class action settlement and subsequent final judgment." Id. Isaacson and Stephenon argued that the 1984 settlement denied them adequate representation because their injuries manifested after the fund depleted. Id. The MDL transferee court granted the defendants' motion, but the Second Circuit vacated and remanded. Id. Specifically, the Second Circuit considered the following two issues: (1) whether defendants properly removed Isaacon's lawsuit pursuant to the All Writs Act; and (2) whether a class member, asserting inadequate representation, may collaterally attack the class settlement, in general, and the application of res judicata, in particular. Regarding the removal, the Second Circuit concluded that the All Writs Act is a valid jurisdictional predicate to remove an otherwise unremovable case in "exceptional circumstances." Id. at 256. The court held that Isaacson's state court action constituted an "exceptional circumstance" because "maintenance of [his] action[] in state court necessarily requires interpretation of the scope of the Agent Orange Settlement and could have the potential to disturb the judgment underlying the settlement depending on the position taken by defendants." Id. Critically, although the Second Circuit ultimately held that "Isaacson's suit is not precluded by the settlement judgment, removal and transfer were appropriate simply for the purpose of determining the settlement's preclusive effect." Id. at 256-57. "Indeed, the court 'best situated to make this determination' is the court that entered 38 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 39 of 114 judgment.'" Id. at 257 (quoting In re "Agent Orange" Prod. Liab. Litig., 996 F.2d 1425, 1431 (2d Cir. 1993 . Further amplifying this point, the Second Circuit specifically stated that "[t]his conclusion is not altered by our determination that the district court erred." Id. Turning to the collateral attack, the defendants differentiated between a collateral attack against a judgment and a collateral attack against an injunction. Id. at 257. According to the defendants, Isaacson's and Stephenson's lawsuits attempted to circumvent the Eastern District of New York's injunction as opposed to testing whether they had been adequately represented. Id. The Second Circuit rejected this distinction. Id. According to the court, "[t]he injunction was part and parcel of the judgment that plaintiffs contend failed to afford them adequate representation. If plaintiffs' inadequate representation allegations prevail . . . the judgment, which includes the injunction on which defendants rely, is not binding as to these plaintiffs." Id. As a general proposition, the Second Circuit concluded that a "judgment in a class action is not secure from collateral attack unless the absentees were adequately and vigorously represented." Id. at 259 (citation omitted). The court, however, avoided deciding whether an earlier determination concerning adequacy of representation bars those similarly situated from later raising the same challenge. Id. at 257. Instead, the court assumed the accuracy of the defendants' position: "[E]ven if, as defendants contend, collateral attack is only permitted where there has been no prior determination of the absent class members' rights, plaintiffs' collateral attack is allowed." Id. The court reached this conclusion because "there [had] been no prior adequacy of representation determination with respect to individuals whose claims arise after the depletion of the settlement fund." Id. at 258. Thus, the Second Circuit held "that a collateral attack to contest the application of res judicata is available." Id. at 259. 39 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 40 of 114 Finally, the court reviewed the merits of the res judicata argument. Id. Isaacson and Stephenson argued that, contrary to the traditional res judicata requirements, their cases do not involve "the same parties or their privies" as the 1984 class settlement. Id. The Second Circuit observed that an irreconcilable conflict had existed: "Because the prior litigation purported to settle all future claims, but only provided for recovery for those whose death or disability was discovered prior to 1994, the conflict between Stephenson and Isaacson and the class representatives becomes apparent. . . . Stephenson and Isaacson were not adequately represented in the prior Agent Orange litigation." Id. at 260-61. Accordingly, the Second Circuit vacated the district court's dismissal order and remanded for a rehearing on res judicata. Id. at 261.22 Two conclusions relevant to this case can be drawn from the Second Circuit's decision in Stephenson. First, a litigant's ability to collaterally attack a class settlement is not limited to the judgment itself; instead, to the extent that the judgment contained an anti-suit injunction, the class member, in an ancillary proceeding, may challenge the injunction as well as the underlying judgment. Second, the court best suited to entertain such a challenge is the court that entered the judgment and from which the injunction issued. The Second Circuit more directly reached this second conclusion in an earlier iteration of the Agent Orange appeals: "Although appellants' attack is founded on their constitutional right to due process, nothing in the Constitution or in our jurisprudence demands that class members have an unchallengeable choice of forums in which to launch it." In re "Agent Orange" Prod. Liab. Litig., 996 F.2d 1425, 1432-33 (2d Cir. 1993). 22 On certiorari review, the Supreme Court vacated the Second Circuit's decision insofar as it concerned removal jurisdiction under the All W rits Act and in light of Syngenta. Dow Chem. Co. v. Stephenson, 539 U.S. 111, 112 (2003). As to the Second Circuit's res judicata analysis, including the court's conclusion regarding the proper forum for a collateral attack, the decision was "affirmed by an equally divided Court." Id. 40 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 41 of 114 Finally, in In re Real Estate Title and Settlement Services Antitrust Litigation, the Third Circuit considered "whether an absent class member can be enjoined from relitigation if the member does not have minimum contacts with the forum." 869 F.2d at 769. The court held that "if the member has not been given the opportunity to opt out in a class action involving both important injunctive relief and damage claims, the member must either have minimum contacts with the forum or consent to jurisdiction in order to be enjoined by the district court that entertained the class action." Id. In reaching this decision, the Third Circuit sidestepped deciding "whether an absent plaintiff can be bound to the judgment in a hybrid (damage and injunctive) class action if it was not afforded the opportunity to opt out." Id. at 768-69. According to the court, that decision was unnecessary "because an absent plaintiff is not subject to the burdens of distant forum litigation when it is bound to a class action settlement, as long as it can challenge the adequacy of representation in the forum of its choice." Id. at 769. In short, the Third Circuit's rule permits a class member to escape the federal court's anti-suit injunction if the class action is mandatory and the absent class member does not have minimum contracts with the forum in which the district court sits. Id. It is undisputed that (1) the Inamed Class Settlement was certified as a mandatory class action and (2) Juris lacks the requisite minimum contacts to Alabama and has not consented to this court's jurisdiction in the traditional sense. Even (charitably) assuming that Real Estate Title demands the conclusion Juris asserts, that would only help her if this court sat in Pennsylvania or New Jersey, or one of the other states in the Third Circuit. 23 The problem for Juris, however – and perhaps the 23 The court notes that the Third Circuit generally analyzed the protections accorded to absentee class members in a mandatory class action, but the court did not decide "the due process requirements in a class action certified under Rule 23(b)(1)(B) in which there is only a limited common fund from which the plaintiffs can obtain relief." Real Estate Title, 869 F.2d at 768 n.8. At the very least, the Third Circuit's qualification suggests that limited funds, although "mandatory," may warrant consideration distinct from the Real Estate Title holding. At least one court in the Third Circuit has reached precisely this result. In re Orthopedic Bone Screw Prods. Liab. Litig., 176 F.R.D. 158, 180-81 (E.D. 41 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 42 of 114 reason that she has abandoned this argument – is that the Third Circuit's rule cannot be reconciled with the Eleventh Circuit's decision in Battle v. Liberty National Life Insurance Co., 877 F.2d 877 (11th Cir. 1989). Battle concerned whether a federal district court may enjoin absentee class members' collateral attacks in state court against a finally approved settlement. Id. at 879. In Battle, the Northern District of Alabama certified a Rule 23(b)(2) mandatory, non-opt out class against funeral home businesses. Id. at 879 n.1. In 1978, the Northern District of Alabama approved the proposed settlement and retained jurisdiction over its enforcement. Id. at 880. In 1983, dissatisfied members of the class filed a lawsuit in Alabama state court against the Battle settlement's defendants. Id. In response, the defendants filed a motion for summary judgment, which argued the settlement's preclusive effect. Id. The trial court granted the summary judgment motion, but the Alabama Supreme court reversed the dismissal and held that (1) the federal court should have certified the class pursuant to Rule 23(b)(3); (2) the plaintiffs in the instant case had not received notice of the class settlement; and (3) the class representatives had not adequately reflected the present plaintiffs' interests. Id. On remand from the Alabama Supreme Court, the plaintiffs amended their state court complaint and added class allegations. Id. In response to the state court litigation, Judge Hancock, who was presiding over the settled federal class action, granted the federal defendants' motion to preliminarily enjoin the state court proceeding and, eventually, permanently enjoined its continued prosecution. Id. The plaintiffs appealed, and the Eleventh Circuit affirmed. Id. at 883. The court held that the plaintiffs' "due process challenge is not foreclosed; it simply must be brought in the forum which has lived with this Pa. 1997) (certifying a limited fund class action and distinguishing Real Estate Title on this basis). 42 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 43 of 114 case for nearly two decades." Id. at 883. Indeed, the district court had presented the plaintiffs with two options: The . . . preliminary injunction made it plain that the only appropriate method by which respondents can challenge at this late date the Battle Final Judgment is to file in this court (1) a motion under FRCP Rule 60(b) or (2) an independent action predicated upon a claim of inadequacy of representation of the policyholder class or upon a claim of fraud on this court. Battle v. Liberty Nat'l Life Ins. Co., 660 F. Supp. 1449, 1458 (N.D. Ala. 1987) (emphasis added), aff'd, 877 F.2d 877 (11th Cir. 1989). Affirming this decision, the Eleventh Circuit settled the law: collateral attacks, although permissible, are appropriately considered by the class action court. The Eleventh Circuit, agreeing with the general proposition that collateral attacks are available, placed an important limitation on their scope that the Third Circuit explicitly rejected. Compare Real Estate Title, 869 F.2d at 770 ("Under the title companies' rule, defendants would be able to funnel all of these challenges into the class action court by bringing injunction actions. This kind of consolidation would not necessarily be efficient, since it would not be sourced in a judge's belief that efficiency would be furthered by consolidation, but instead would arise as a product of the defendant's litigation strategy.") with Battle, 877 F.2d at 883 ("Their due process challenge is not foreclosed; it simply must be brought in the forum which has lived with this case for nearly two decades.") (emphasis added). Accordingly, Juris has abandoned her forum selection argument with good reason. To the extent that Juris opts to pursue a collateral attack, this court is the proper forum. 43 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 44 of 114 B. Certification Pursuant to Rule 23(b)(1)(B) Juris contends that the Inamed Class Settlement does not satisfy the requirements for Rule 23(b)(1)(B) class actions as outlined in Ortiz v. Fibreboard Corp., (1999). That assertion misses the mark for two reasons. First, Juris's contention that Order 47A, entered February 1, 1999, violates the commands of Ortiz, decided June 23, 1999, amounts to an improper basis for relief under Rule 60. Second, Judge Pointer's certification of the Rule 23(b)(1)(B) class was proper. To the extent that Juris requests exclusion on account of Ortiz, at best, her claim fits Rule 60(b)(5), but as a general matter, Rule 60(b)(5) authorizes a district court to set aside a judgment when "it is based on an earlier judgment that has been reversed or vacated." See Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977) ("Instead it is settled that such relief is extraordinary and may be granted only upon a showing of 'exceptional circumstances.' Thus a party seeking such relief must bear a heavy burden of showing circumstances so changed that dangers, once substantial, have become attenuated to a shadow, and that, absent such relief, an extreme and unexpected hardship will result. We think a healthy respect for the finality of judgments demands no less.") (citations and internal quotation marks omitted). In this case, Judge Pointer did not rely on a subsequently vacated or reversed decision as the basis for certification; instead, he concluded, based on the law at the time of his decision, that Rule 23(b)(1)(B) requirements were met. Importantly, Ortiz merely clarified the law – the decision did not overrule prior cases on which Judge Pointer relied when deciding to certify the Inamed Class. Juris may not challenge the applicability of Ortiz; indeed, an approach that permits a litigant to contest prior judgments on the basis of a subsequently decided appellate case would render finality an illusory pursuit. See In re Orthopedic Bone Screw Prods. Liab. Litig., 350 F.3d 360, 364 (3d Cir. 44 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 45 of 114 2003) ("[After Ortiz], [t]o the extent the objectors wish to challenge the indemnification provision itself, their opportunity to do so was at the approval stage and on appeal from that order, and has long passed.") (citation omitted). Moreover, Juris has not identified any case, from this Circuit or elsewhere, that authorizes an absentee class member to contest the basis for class certification through Rule 60(b) in lieu of an appeal. In fact, the general rule is that a collateral attack, such as one launched through Rule 60(b) proceedings, is not a vehicle for subsequently correcting a past error of law, which undoubtedly includes a conclusion as to certification under Rule 23(b). See, e.g., Am. Bankers Ins. Co. v. Northwestern Nat'l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999) ("[T]he law is clear that Rule 60(b) may not be used to challenge mistakes of law which could have been raised on direct appeal.") (citation omitted); Alvestad v. Monsanto Co., 671 F.2d 908, 912 (5th Cir. 1982) ("While we thus have admonished district courts that they should honor requests to reform a judgment in obvious conflict with a clear statutory mandate, we have been equally insistent that Rule 60(b) is not a substitute for the ordinary method of redressing judicial error – appeal."). In short, Juris's substantive attack on Orders 47A and 47B, which were not appealed, is foreclosed as a matter of law. But even if Juris were able to contest Judge Pointer's conclusions of law, the court finds in the alternative that the Inamed Class Settlement was properly certified as a limited fund. Rule 23(b)(1)(B) authorizes the maintenance of class actions if "prosecuting separate actions by or against individual class members would create a risk of . . . adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests." Rule 23(b)(1)(B) is commonly applicable in so-called "limited fund" cases. "A 45 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 46 of 114 limited fund exists when a fixed asset or piece of property exists in which all class members have a preexisting interest, and an apportionment or determination of the interests of one class member cannot be made without affecting the proportionate interests of other class members similarly situated." 2 NEWBERG ON CLASS ACTIONS § 4:9 (4th ed. 2009). According to Juris, Judge Pointer erroneously certified the Inamed Class under Rule 23(b)(1)(B). 24 Juris reaches this conclusion based on the Supreme Court's decision in Ortiz v. Fibreboard Corp., (1999), which was released nearly five months after Judge Pointer entered Order 47A. Although Ortiz provides the only modern treatment by the Court as to Rule 23(b)(1)(B) limited fund class actions, its facts are important to understanding its scope. From the 1920s until the 1970s, Fibreboard manufactured a variety of products that contained asbestos. Ortiz, 527 U.S. at 822. During the 1980s and 1990s, individuals began filing personal injury lawsuits against the company for asbestos-related illnesses. Id. Fibreboard, confronted with these lawsuits, engaged in protracted litigation with two insurers, Continental Casualty Company and Pacific Indemnity Company, over alleged products liability coverage for years 1956 through 1959. Id. In 1990, the coverage litigation reached a turning point when a California state court concluded that both insurers were responsible for indemnification as to any claim by a plaintiff exposed prior to the respective policy's expiration date. Id. at 822-23. Both insurers appealed. Id. at 823. In late-1992 and early-1993, Fibreboard approached a group of leading plaintiffs' lawyers who specialized in asbestos litigation to discuss the possibility of "global settlement." Id. at 823-24. 24 Importantly, aside from adequacy of representation, Juris has never contended that Judge Pointer erroneously concluded that Rule 23(a)'s threshold requirements were met. Instead, her principal argument is that he misapplied Rule 23(b)(1)(B). The court, therefore, limits its consideration only to Rule 23(b) and expresses no opinion whatsoever as to Judge Pointer's numerosity, commonality, or typicality findings. 46 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 47 of 114 Faced with practically unlimited indemnification liability, Continental Casualty participated in these discussions. Id. at 824. "Negotiations continued through the spring and summer of 1993, but the difficulty of settling both actually pending and potential future claims simultaneously led to an agreement in early August to segregate and settle an inventory of some 45,000 pending claims, being substantially all those filed by one of the plaintiffs' firms negotiating the global settlement. The settlement amounts per claim were higher than average with one-half due on closing and the remainder contingent upon either a global settlement or Fibreboard's success in the [California] coverage litigation." Id. In other words, Class Counsel negotiated a side agreement, which accorded differential benefits to plaintiffs similarly situated to the putative class members. Soon thereafter, with the impending California coverage appeal set to be heard on August 27, 1993, the negotiators "finally agreed upon $1.535 billion as the key term of a Global Settlement Agreement. $1.525 billion of this sum would come from Continental and Pacific, in the proportion established by the California trial court in the coverage case, while Fibreboard would contribute $10 million, all but $500,000 of it from other insurance proceeds." Id. at 824-25 (internal quotation 25 marks omitted). Hedging their bets, Continental, Pacific, and Fibreboard entered into the so-called "Trilateral Settlement Agreement," which resolved the coverage litigation and required Continental and Pacific to pay $2 billion to Fibreboard in the event that the Global Settlement Agreement did not receive judicial support. Id. at 825. 25 Fibreboard was to contribute a very small percentage of the settlement proceeds, and the settlement essentially left untouched its $235 million in remaining assets (not to mention the insurance companies' remaining assets, which totaled in the billions of dollars). These facts exposed the fiction that the district court and the Fifth Circuit erroneously relied upon – the $1.535 billion settlement kitty was not a limited fund. 47 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 48 of 114 Accordingly, on September 9, 1993, a group of named plaintiffs filed a Rule 23(b)(1)(B) mandatory class action only for settlement purposes in the Eastern District of Texas and sought approval of the Global Settlement Agreement. Id. at 825. The representatives defined their class to include "all persons with personal injury claims against Fibreboard for asbestos exposure who had not yet brought suit or settled their claims before the previous August 27; those who had dismissed such a claim but retained the right to bring a future action against Fibreboard; and past, present and future spouses, parents, children, and other relatives of class members exposed to Fibreboard asbestos." Id. at 825-26 (internal quotation marks omitted). Excluded from this class, however, were "claimants with actions presently pending against Fibreboard or claimants who filed and, for cash payment or some other negotiated value, dismissed claims against Fibreboard, and whose only retained right is to sue Fibreboard upon development of an asbestos-related injury." Id. at 826 (internal quotation marks omitted). The class complaint contained only personal injury claims. Id. According to the terms of the Global Settlement Agreement, Fibreboard, Continental, and Pacific "would establish a trust to process and pay class members' asbestos personal injury and death claims. Claimants seeking compensation would be required to try to settle with the trust. If the initial settlement attempts failed, claimants would have to proceed to mediation, arbitration, and a mandatory settlement conference. Only after exhausting that process could claimants go to court against the trust, subject to a limit of $500,000 per claim, with punitive damages and prejudgment interest barred. Claims resolved without litigation would be discharged over three years, while judgments would be paid out over a 5- to 10-year period." Id. at 827. After extensive notice efforts, the Eastern District of Texas held an eight-day fairness hearing, and afterwards the court certified the class pursuant to Rule 23(b)(1)(B) and approved the 48 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 49 of 114 Global Settlement Agreement as fair, adequate, and reasonable. Id. In support of its decision as to the propriety of Rule 23(b)(1)(B) class treatment, the Eastern District of Texas concluded both the "disputed insurance asset liquidated by the $1.535 billion Global Settlement, and, alternatively, the sum of the value of Fibreboard plus the value of its insurance coverage, as measured by the insurance funds' settlement value, to be relevant limited funds." Id. at 828 (internal quotation marks omitted). Eventually, 26 the Supreme Court considered the propriety of limited fund treatment under these circumstances. For the Ortiz Court, the "nub of [the] case [was] the certification of the class under Rule 23(b)(1)(B) on a limited fund rationale . . . ." Id. at 831. To identify the necessary conditions required for limited fund treatment, the Court traced the historical uses of mandatory class actions. Id. at 832-37. Distilling the three essential characteristics of limited fund classes, the Court observed that the "cases forming the pedigree of the limited fund class action as understood by the drafters of Rule 23 have a number of common characteristics, despite the variety of circumstances from which they arose." Id. at 838. "The first and most distinctive characteristic is that the totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums, demonstrate the 26 The case reached the Supreme Court after a cumbersome appellate process. Objector-intervenors appealed the certification and approval decisions, but the Fifth Circuit affirmed. Among other conclusions, the Fifth Circuit held that the settlement satisfied the rigors of Rule 23(b)(1)(B) mandatory class treatment. In re Asbestos Litig., 90 F.3d 963, 982-88 (5th Cir. 1996). The Fifth Circuit denied rehearing en banc. In re Asbestos Litig., 101 F.3d 368 (5th Cir. 1996). Shortly thereafter, however, the Supreme Court decided Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), which assessed the propriety of Rule 23(b)(3) class treatment as to asbestos-related tort claimants. Litigants appealed the Fifth Circuit's decision in In re Asbestos Litigation, and the Supreme Court granted certiorari review and vacated the Fifth Circuit's judgment for further consideration in light of Amchem. Flanagan v. Ahearn, 521 U.S. 1114 (1997). On remand from the Supreme Court, the Fifth Circuit did not take the hint. Rather, the court of appeals re-affirmed the Eastern District of Texas and distinguished Amchem from the pending case because they involved Rules 23(b)(3) and 23(b)(1)(B), respectively. In re Asbestos Litig., 134 F.3d 668, 669-70 (5th Cir. 1998). The Supreme Court then again granted certiorari review and reversed the Fifth Circuit. Ortiz, 527 U.S. at 865. 49 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 50 of 114 inadequacy of the fund to pay all the claims. The concept driving this type of suit was insufficiency, which alone justified the limit on an early feast to avoid a later famine." Id. The Court noted that "in an action such as this[,] the settling parties must present not only their agreement, but evidence on which the district court may ascertain the limit and the inadequacy of the fund, with support in findings of fact following a proceeding in which the evidence is subject to challenge." Id. at 849. To illustrate this point, the Court approvingly cited to two Eleventh Circuit decisions: In re Temple, 851 F.2d 1269 (11th Cir. 1988), and In re Dennis Greenman Securities Litigation, 829 F.2d 1539 (11th Cir. 1987). Id. At bottom, the Ortiz Court held that a district court's "uncritical adoption" of the parties' representation that a fund is, indeed, limited is insufficient. Id. at 848. A court may consider settlement value "as good evidence of the maximum available if [it] can assume that parties of equal knowledge and negotiating skill agreed upon the figure through arms-length bargaining, unhindered by any considerations tugging against the interests of the parties ostensibly represented in the negotiations." Id. at 852. The Court cautioned, however, that "no such assumption may be indulged . . . in any class action settlement with the potential for gigantic fees." Id. The Court clarified this concern: "In a strictly rational world, plaintiffs' counsel would always press for the limit of what the defense would pay. But with an already enormous fee within counsel's grasp, zeal for the client may relax sooner than it would in a case brought on behalf of one claimant." Id. at 853 n.30. "Second, the whole of the inadequate fund was to be devoted to the overwhelming claims. . . . The limited fund cases thus ensured that the class as a whole was given the best deal; they did not give a defendant a better deal than seriatim litigation would have produced." Id. at 839. A defendant's ability to "retain virtually its entire net worth" runs afoul of the limited fund rationale. 50 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 51 of 114 Id. at 860. The Court noted that whether "transaction costs [such as litigation expenses] that would never have gone into a class member's pocket in the absence of settlement" may be credited as a legitimate incentive for settlement is a question left "for another day." Id. at 861. In other words, deciding whether "limited fund certification can be justified on the ground that such settlement necessarily provided funds equal to, or greater than, what might have been recovered through individual litigation factoring out transaction costs" was expressly avoided. Id. at 861 n.35. "Third, the claimants identified by a common theory of recovery were treated equitably among themselves. The cases assume that the class will comprise everyone who might state a claim on a single or repeated set of facts, invoking a common theory of recovery, to be satisfied from the limited fund as the source of payment. . . . Once all similar claims were brought directly or by representation before the court, these antecedents of the mandatory class action presented straightforward models of equitable treatment, with the simple equity of a pro rata distribution providing the required fairness." Id. at 839-40. Importantly, "equitable treatment," for limited fund purposes, is not necessarily synonymous with "equal treatment" in the general sense – that is, a limited fund is not equitably divided merely because there are "no disparate allocation[s] of resources as between conflicting classes." Id. at 857. Rather, when diverse claimants are involved, the critical concern is whether procedures are implemented "to resolve the difficult issues of treating such differently situated claimants with fairness as among themselves." Id. at 856. Procedural safeguards, to ensure the representative integrity of the class action, are essential to effectuate a fair division of the fund. Id. Judge Pointer, after receiving evidence and hearing testimony, made detailed and specific factual findings, all embodied in Order 47A. First, the fund was classically "limited." At 51 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 52 of 114 certification, Judge Pointer's findings stressed the fund's outer limits by concluding (1) Inamed's consolidated book value was negative $2 million and (2) absent mandatory class certification and the senior secured note holders' infusion of $31.5 million, Inamed would pursue Chapter 7 liquidation, in which case, none of the tort claimants could recover any amounts. Finding that these representations were credible and supported by actual evidence, Judge Pointer concluded that the $31.5 million reflected the maximum payout available to the class. Thus, Juris's claim that Judge Pointer blindly adopted the evidence is factually unsupported. The mere fact that the senior secured note holders, as opposed to Inamed, contributed solely to the fund does not affect the finding that this was a limited fund. Importantly, the senior secured note holders contributed $31.5 million, unencumbered by Inamed's then-outstanding liabilities. This figure, therefore, represented the maximum value available for settling pending tort claims because Inamed's other assets existed only nominally when compared to its rapidly increasing commercial debt as well as the priority interests obtained by the senior secured note holders. Ortiz faulted the company's (and the insurance carriers') retention of virtually unencumbered assets, which amounted to a post-settlement windfall. In this case, though, if Inamed had attempted to liquidate in order to raise money for the settlement, then it would have run afoul of the agreements with its senior note holders, in which they acquired a superior interest in substantially all of the company's assets. Inamed's lack of products liability insurance coverage, as well as its inability to obtain alternative lending, further restricted available capital. For all intents and purposes, therefore, Inamed had no assets to contribute to the settlement. Only the $31.5 million, loaned to Inamed by the note holders, was available to satisfy the tort claims. Moreover, this is not a case where the senior secured note holders stood in a position akin to the insurance companies in Ortiz, and therefore, Judge Pointer 52 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 53 of 114 should have assessed their potential insolvency. See Ortiz, 527 U.S. at 852 (analyzing the outer bounds of the insurers' ability to pay). That comparison would be misplaced. In particular, the insurance companies in Ortiz were bound, according to the California state court's judgment, to indemnify Fibreboard for asbestos related claims. Accordingly, the solvency of the insurance companies, facing derivative liability, became relevant to the Supreme Court's analysis of whether the fund was truly limited. In this case, however, the senior secured note holders were not derivatively liable for the breast implant claims; instead, they chose to fund a mandatory settlement in order to salvage Inamed, in which they had invested substantially. Thus, the solvency of the senior secured note holders and the potential impact of unrestricted litigation is irrelevant. This is the case because the senior note holders (unlike the insurers in Ortiz) were not secondarily liable for breast implant claims against Inamed. Thus, here, a truly limited fund existed. See In re Telectronics Pacing Sys., 221 F.3d 870, 873 (6th Cir. 2000) ("The traditional 'limited fund' is a pool of money coming from an outside source, the amount of which is not subject to manipulation by the parties."). Alternatively, when the value of the fund is disputed, settlement may be a valid proxy for an "actual" determination of the optimum value. Ortiz, 527 U.S. at 851. In Ortiz, however, "no such assumption [could have been] indulged . . ., or probably in any class action settlement with the potential for gigantic fees." Id. at 852. With the Fibreboard settlement, some class lawyers negotiated side agreements whereby payout was contingent on approval of the mandatory global settlement. Id. These side agreements created a perverse incentive to favor the known plaintiffs, which exacerbated conflicts of interest. Id. at 853. 53 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 54 of 114 In this case, there simply were not conflicts like those which infected the Ortiz settlement. Side agreements, magnified by potentially collusive negotiations, likely precipitated the rush to settle in Ortiz. The Inamed Class Settlement, on the other hand, resulted from deliberate and vigorous negotiations designed to yield the maximum payout to all pending and future class claimants. The class representatives reflected the varying interests affected, and all counsel engaged in protracted settlement discussions. And unlike Ortiz, class counsel in this case received their fees from a separate account, funded years earlier, by a coalition of breast implant manufacturers. The division of fee and fund obviated the attorneys' incentive to acquiesce to less than favorable terms in order to obtain guaranteed, short-term payment. The same tensions that permeated the Fibreboard settlement, therefore, were simply not present in this case. Accordingly, the agreed upon settlement value can be considered persuasive evidence of the maximum value that was available to the class because, as Judge Pointer determined as a factual matter, the proposed settlement was "non-collusive and was negotiated in good faith and at arms' length by experienced and informed counsel who, after years of discovery, litigation and negotiation, fully understand the costs and risks of breast implant litigation." (Doc. #59, Order 47A ¶ 5(a . Additionally, the Supreme Court strongly hinted that a defendant must be on the brink of bankruptcy before limited fund treatment is appropriate: We need not decide here how close to insolvency a limited fund defendant must be brought as a condition of class certification. While there is no inherent conflict between a limited fund class action under Rule 23 (b)(1)(B) and the Bankruptcy Code, it is worth noting that if a limited fund certification is allowed in a situation where a company provided only a de minimis contribution to the ultimate settlement fund, the incentives such a resolution would provide to companies facing tort liability to engineer settlements similar to the one negotiated in this case would, in all likelihood, significantly 54 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 55 of 114 undermine the protections for creditors built into the Bankruptcy Code. Id. at 860 n.34 (citation omitted); see also Jenkins v. Raymark Industries, Inc., 109 F.R.D. 269, 276 (E.D. Tex. 1985) ("Thus, unless the brink of insolvency will be reached during the litigation of the pending 893 claims, a limited fund does not exist as to these claimants."), aff'd, 782 F.2d 468 (5th Cir. 1986). In this case, however, that Inamed was nearing insolvency is virtually undisputed. At the time of certification, the company had reported net operating losses for several years, its independent auditor repeatedly had issued qualified opinions, and its consolidated book value was negative. Further, Chapter 7 liquidation, as opposed to Chapter 11 reorganization, was imminent. Consequently, bankruptcy was no longer merely possible – it was inevitable. Continued litigation without global resolution promised the demise of Inamed and ensured the annihilation of unsettled and pending claims. 27 According to the evidence before Judge Pointer, and on which he relied, through bankruptcy, tort claimants would have been pitted against trade creditors, who held liquidated claims in excess of $10 million, as to the recovery of approximately $1.4 million – the remaining assets to be liquidated were wholly secured by the third party investors' financing arrangements, and, therefore, those senior note holders had priority with respect to any claims against those assets. Although the per claimant payout under the Inamed Class Settlement was low, the payout through bankruptcy would have been even less and likely nothing at all. In contrast, post-Ortiz, the Sixth Circuit decertified a Rule 23(b)(1)(B) class action because the risk of bankruptcy was more theoretical than real. In In re Telectronics Pacing Systems, Inc., 221 27 In this regard, Juris's concern that Inamed experienced a 24% increase in net sales during 1998 is unavailing. Inamed had significant financial stresses, and a single line-item improvement on its financial statements is inadequate to counterbalance nearly a decade of operational deterioration (especially in light of Inamed's rapidly ballooning debt load). In 1998, sales were up, but financially Inamed was still on a collision course with Chapter 7. 55 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 56 of 114 F.3d 870 (6th Cir. 2000), which stemmed from allegedly faulty pacemakers, the parties moved for mandatory class certification pursuant to Rule 23(b)(1)(B) and settlement approval. Importantly, the proposed settlement purported to liquidate defendant TPLC's assets (worth $75 million) while absolving its corporate parent, which at the time recognized over $5 billion in annual global sales. Id. at 874-86. The Sixth Circuit, reversing the certification decision, rejected the argument that the mere threat of bankruptcy rendered TPLC "limited" within the meaning of Rule 23(b)(1)(B): Presumably all companies have limited funds at some point – there is always the possibility that a large mass tort action or other litigation will put a company into bankruptcy. Should that eventually threaten, we have a comprehensive bankruptcy scheme in this country for just such an occurrence. Simply demonstrating that there is a possibility, even a likelihood, that bankruptcy might at some point occur cannot be the basis for finding that there is a "limited fund" in an ongoing corporate concern. Id. at 880. A hypothetical risk of bankruptcy is insufficient to justify limited fund treatment, see In re Auction Houses Antitrust Litig., 42 Fed. App'x 511, 521 (2d Cir. 2002) (concluding that, under Ortiz, speculative or theoretical inability to pay does not render a defendant "limited"), but the limited fund in this case is distinguishable. Unlike Telectronics, Inamed, at the time of settlement, did not have a multi-billion dollar parent backing its operation. TPLC's suggestion that bankruptcy was looming, therefore, was simply not credible considering its parent's deep financial resources, which the settlement placed beyond the class's reach. 28 Accordingly, Telectronics, in light of Ortiz, is best understood as standing for a limited proposition: when a company is a going concern, the mere potential for bankruptcy in the absence of global class treatment is insufficient to render the company 28 In this respect, the Telectronics case is therefore substantially akin to Ortiz, in which there were substantial insurance company assets placed out of the reach of the class by the settlement. 56 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 57 of 114 "limited" for purposes of Rule 23(b)(1)(B). See Telectronics, 221 F.3d at 880 ("Simply demonstrating that there is a possibility, even a likelihood, that bankruptcy might at some point occur cannot be the basis for finding that there is a 'limited fund' in an ongoing corporate concern.") (emphasis added). On the other hand, once bankruptcy becomes factually inevitable and fatally prejudicial to putative claimants, the assets available for recovery are "limited." The Eleventh Circuit has made this same observation, albeit in a case where there was not sufficient fact finding to support the legal conclusion: "This district court also found a limited fund on the basis that some investors may bankrupt potential sources of recovery. The court made no specific findings of the defendants' financial status. Absent such findings the district court could not properly rely on this ground for certification." In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1546 (11th Cir. 1987) (citations omitted) (emphasis added). Dennis Greenman, therefore, authorizes limited fund treatment when 57 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 58 of 114 the district court makes the requisite factual findings as to insolvency. 29 Here, Judge Pointer did just that. In this case, foremost, Inamed was not a going concern. For several years preceding the settlement, its independent auditor issued a qualified opinion, which expressed reservation that the company would survive as a result of breast implant litigation. Inamed's book value was negative $2 million, and its outstanding corporate liabilities, without regard to the tort claims or litigation expenses, vastly overshadowed its assets. Similarly, its senior secured note holders' interests swallowed the saleable assets. But its business woes were symptoms of a deeper problem: Inamed was burning its reserves on seemingly bottomless litigation costs. Indeed, the settlement's effect on the operation was uncertain at the time; given the dire situation, whether the company would rebound 29 Juris relies on the Second Circuit's decision in In re Joint Eastern & Southern District Asbestos Litigation, 982 F.2d 721 (2d Cir. 1993), for the proposition that Rule 23(b)(1)(B) is an imperfect substitute for bankruptcy protections, which otherwise ensure compromise among competing creditors. (Doc. #288 at 21-22). Her suggestion that the Second Circuit's analysis applies here misses the mark. Unlike this case, the Second Circuit, considering the propriety of Rule 23(b)(1)(B) certification directly against an insolvent trust without the benefit of supplementary infused capital, observed that the "differences [between bankruptcy protections and the procedures in Rule 23] raise a substantial question whether a class action may be used to adjust claims against an insolvent entity that is eligible for bankruptcy protection." 982 F.2d at 736; see also id. ("[A]n even more substantial question is raised as to whether a class action may be used against an insolvent entity to adjust the claims of creditors vis-a-vis each other, without observing the protections that would be available under bankruptcy law."); In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648, 654 ("[H]owever insolvency is defined, the Trust is deeply insolvent . . . ."). On this factual basis, the Second Circuit held that bankruptcy proceedings are superior to a limited fund class action when attempting to recover directly against an insolvent entity. 982 F.2d at 735-36. This conclusion, however, is only tenuously related to Judge Pointer's decision. The Inamed Settlement did not purport to liquidate Inamed, undisputedly insolvent, and resolve tort claims (and as a result, subordinate trade claims) from those proceeds. Instead, Judge Pointer's consideration of the company's insolvency confirmed the wholly independent finding that the $31.5 million loan from the senior creditors reflected the maximum payout available to breast implant claimants. In this sense, the class action proceeded to liquidate the $31.5 million fund (which was not "insolvent") rather than Inamed. The Second Circuit's hesitations as to using Rule 23(b)(1)(B) to effect liquidation against an insolvent entity are plainly inapplicable. Indeed, a careful reading of the decision reveals that the Second Circuit differentiated Rule 23(b)(1)(B) treatment against an insolvent entity from a situation akin to the Inamed Class Settlement: "W ith respect to aggregate claims in excess of a fixed sum of money, a (b)(1)(B) class action is appropriate to avoid an unfair preference for the early claimants at the expense of later claimants." Id. at 735 (emphasis added). 58 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 59 of 114 post-settlement remained pure speculation. 30 Thus, contrary to Juris's suggestion that the company's eventual sale for several million dollars in 2005 demonstrates undervaluation at settlement, the more plausible interpretation is that the company was no longer facing the crushing financial obligations, operational diversions, and contingent liability (all of which attended the implant litigation), and consequently was able to rebuild. 31 When Inamed experienced moderate profitability in late 1998 and throughout 1999, the company attributed its slight turnaround to (1) resolution of the breast implants litigation, (2) third party financing and supervision, and (3) aggressive cost reduction. Without the continuing and uncertain litigation drain, Inamed, through significant investment support as opposed to internal reserves, equalized and reached a sustaining point. Thus, Inamed itself had no unencumbered assets to contribute to settlement. The $31.5 million, which it contributed, and which was procured through private lending, reflected the outer bound of total recovery for class members because of Inamed's insolvency. Accordingly, as Judge Pointer concluded in Order 47B, "[u]nlike the situation in [Ortiz], there cannot be any serious dispute about this being a 'limited' fund case – indeed an extremely 'limited' fund case to the extent of providing what most claimants would view as only 'de minimis' distributions." (Doc. #70, Order 47B at 2 n.6). 30 At some level, Juris's counsel seems to acknowledge this point: THE COURT: MS. LEBOW : Now, [at the Fairness Hearing] nobody understood and knew that the defendant would make the financial recovery it did. Fair? Fair. (Doc. #287, 12/14/09 Hearing Transcript 43:7-9). 31 Additionally, in the other cases to have considered this issue, the respective defendants had the option of pursuing mandatory class treatment or Chapter 11 reorganization. In this case, however, Inamed's only viable option, given its financial position in the mid- to late-1990s, was straight liquidation of its assets. The courts that have rejected Rule 23(b)(1)(B) as a substitute for bankruptcy were not confronted with the situation that the parties and Judge Pointer faced here – namely, that the tort claim creditors would have received nothing. 59 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 60 of 114 Responding to this conclusion, the best Juris can do is to argue that Inamed's financial status at certification was not as depressed as portrayed to Class Counsel and Judge Pointer. The court has significant doubts as to whether Juris, pursuant to Rule 60(b), may retrospectively scrutinize the propriety of class certification. This particular line of argument – that Inamed understated its financial troubles – is distinct from challenging Judge Pointer's conclusions of law based on uncontroverted factual findings. Insofar as Juris argues that Inamed essentially hoodwinked Class Counsel and the court, she questions the integrity of Judge Pointer's factual findings and, relatedly, the parties' candor in presenting evidence. The only basis under Rule 60(b) for revisiting a factual finding on this basis is its third subdivision: "[T]he court may relieve a party or its legal representative from a final judgment . . . for . . . fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party." FED. R. CIV. P. 60(b)(3). But "[t]o obtain relief from a final judgment based upon fraud under Rule 60(b)(3), the moving party must prove by clear and convincing evidence that the adverse party obtained the [judgment] through fraud, misrepresentations, or other misconduct. The moving party must also demonstrate that the conduct prevented them from fully presenting his case." Waddell v. Hemerson, 329 F.3d 1300, 1309 (11th Cir. 2003) (citing Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1287 (11th Cir. 2000 (emphasis added). "Clear and convincing evidence" is an "intermediate standard of proof, lying somewhere between proof by a preponderance of the evidence and proof beyond a reasonable doubt." Hornor, Townsend & Kent, Inc. v. Hamilton, No. 01-2979, 2003 U.S. Dist. LEXIS 25967, at *31 (N.D. Ga. Sept. 29, 2003) (citation omitted); see also United States v. Owens, 854 F.2d 432, 436 n.8 (11th Cir. 1988) (describing the standard as proof that the "claim is highly probable"). 60 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 61 of 114 Here, Juris's evidence that Inamed defrauded Class Counsel and Judge Pointer falls woefully below the "clear and convincing" standard of proof. First, she argues that, in its SEC filings, Inamed reported for fiscal year 1998 that its net sales (not income, but sales) increased by 24% over net sales for fiscal year 1997. According to Juris, this disclosure revealed a rosier financial picture than the one painted at class certification. This argument misses the mark. A single line-item in SEC statements, on its own, does not encapsulate the financial health of a company. This is particularly the case when the same document reveals a negative $15.6 million stockholders' equity account. Inamed, even with a 24% increase in sales, had a negative book value according to its balance sheet. Inamed's enormous debt load substantially counterbalanced a short-term turnaround in sales. Similarly, Juris argues that, when Inamed filed its 10-K in 2000 for fiscal year 1999, the net sales increased 44% as compared to fiscal year 1998. (Doc. #254-8, 1999 Inamed 10-K at 4). In the same document, the company also revealed that its stockholders' equity account equaled $134.1 million at year-end 1999, as compared to negative $15.6 million at year-end 1998. (Doc. #254-8, 1999 Inamed 10-K at 5). At first blush, these numbers seem troubling in light of the representations at certification. But the devil is in the details, and upon closer analysis three facts allay any such concern. First, the 1999 10-K reports Inamed's financial position as of December 31, 1999. That type of accounting snapshot does not reveal fraud ten months earlier at certification. Second, in April 1998, once Judge Pointer provisionally certified and conditionally approved the Inamed Settlement Agreement, he enjoined (1) all litigation against Inamed and brought by members of the then-putative class and (2) Inamed from settling any cases outside the putative class resolution. (Doc. #10, Order 47 ¶ 8(a)-(b . The financial impact of these injunctions is incalculable, but considering Inamed's enormous litigation expenses, of which Judge Pointer had been aware, it is not 61 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 62 of 114 surprising that the company's financial position quickly and dramatically improved when it was no longer saddled with unending, non-operational costs. Third, Inamed candidly attributed its positive net worth and overall turnaround to three factors: (1) third party financing; (2) aggressive reduction efforts in non-core expenses; and (3) public equity placements. Most significantly, however, Juris's arguments ignore one essential point. If Inamed had not resolved the breast implant cases on a global scale, then the company was destined for liquidation at the direction of its senior secured creditors – a fact which Juris has never disputed. 32 By settling the cases (and thus eliminating enormous litigation expense and liability), the senior creditors were willing to lift the restrictions on equity placements and, correspondingly, were more willing to further infuse Inamed with capital. These financing options existed because of the settlement; any reasonable investor would not have been willing to finance an operation with over 40,000 contingent tort liabilities, a portion of which had already yielded multimillion dollar jury verdicts. In short, Juris's argument is fatally flawed because it is circular: Inamed rebounded because of the Inamed Settlement Class, and because Inamed rebounded, the Inamed Settlement Class was flawed. To be sure, Inamed financially recovered. But the undisputed evidence is that the company recovered solely because its financial backers were willing to salvage the company, and they were only willing to do that if the breast implant litigation was completely resolved. The conclusion, therefore, remains: at certification, Inamed's assets were wholly encumbered, and there was substantial uncertainty as to the company's continued viability. Merely because the company reported progress 32 Juris's counsel attempts to dispute this evidence by questioning the credibility of Class Counsel's financial advisor, Ernst & Young. (Doc. #287, 12/14/09 Hearing Transcript 28:11-24). The court addresses this concern below. 62 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 63 of 114 – even substantial progress – after global resolution of its breast implant litigation does not demonstrate by "clear and convincing" evidence that Inamed defrauded the court or Class Counsel. Moreover, Juris wrongly indicts key expert testimony on which Judge Pointer relied. Juris argues that Judge Pointer erroneously based his insolvency conclusions on testimony from Alan Jacobs, an Ernst & Young partner, solely because Inamed paid for his services. According to Juris's counsel, "that fact was [not] disclosed, certainly not to the class. I don't believe it was disclosed to Judge Pointer." (Doc. #287, 12/14/09 Hearing Transcript 28:22-24). Class Counsel, however, explained that Inamed's payment for Ernst & Young's services was actually for the benefit of the class: We negotiated with [Inamed] to pay [Ernst & Young]. Why should we have to pay if we had to come forward with evidence that Inamed was in such dire straits that [it] couldn't meet [its] obligations. We wanted them to have to pay our financial advisor. Yes, we did have the means to pay it through the common benefit fund that Your Honor is familiar with, but we didn't want to deplete the assets of that fund to pay for a financial advisor. So we negotiated with Inamed that [it] would pay it. (Doc. #287, 12/14/09 Hearing Trans. 81:10-18). In addition, as Class Counsel has noted, this agreement was not the clandestine arrangement that Juris suggests, but rather was aboveboard and known to the class as well as the court. (Doc. #287, 12/14/09 Hearing Transcript 80:19-24). This is confirmed by a simple review of the Settlement Agreement's terms: "Within 60 days after Preliminary Approval, Inamed agrees to pay to Ernst & Young ('E&Y') $150,000 in lieu of all fees and expenses of E&Y for services rendered to Settlement Class Counsel." Inamed Settlement Agreement IV.C.3, available at http://www.fjc.gov/BREIMLIT/ORDERS/inasett.rtf (last visited May 6, 2010). Inamed and Class 63 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 64 of 114 Counsel presented the Settlement Agreement to Judge Pointer, he no doubt read it, and its terms were certainly available for review by any interested party. Nor is it a great surprise that Class Counsel selected Jacobs to do the analysis. He "was the tort claimant committee's financial advisor in the Dow Corning bankruptcy." (Doc. #287, 12/14/09 Hearing Transcript 81:2-3). According to Class Counsel, Ernst & Young, and Jacobs in particular, "was a natural fit . . . to help . . . with this other implant manufacturer as almost part and parcel of work [the firm was] doing and getting paid millions and millions of dollars to do in connection with the Dow bankruptcy." (Doc. #287, 12/14/09 Hearing Transcript 81:4-9). Indeed, "[s]ince 1994, E&Y had served as a financial advisor to the Settlement Class Counsel for the Global Settlement of the Silicone Gel Breast Implants Products Liability Litigation pending in the United States District Court for the Northern District of Alabama. . . . In that role, E&Y's responsibilities . . . included . . . coordinating the preparation of reports to the Settlement Class Counsel . . . ." (Doc. #269-4, Jacobs Aff. ¶ 2).33 It is clear, therefore, that Class Counsel purposefully and reasonably retained Ernst & Young and Jacobs, and the firm's services required payment, either by Class Counsel or Inamed. Given Ernst & Young's longstanding relationship with Class Counsel, the mere fact that Class Counsel negotiated for the firm's services to be compensated by Inamed does not cast doubt on the veracity of its conclusions. Juris's speculative contention that Ernst & Young presumably dropped its independence in favor of underhanded favoritism toward Inamed is without any factual support. 33 Juris similarly attempts to create a specter of fraud by submitting a newspaper article, which briefly references Inamed's accounting irregularities for fiscal years 1996 and 1997. (Doc. #293-1, Exhibit A at 2). A settlement with the SEC, which did not admit or deny accounting guilt, is not "clear and convincing" evidence that the data on which Judge Pointer relied was fraudulent – especially considering that an external accounting firm, Ernst & Young, independently reviewed Inamed's financial statements and prepared the documentation submitted for class certification. 64 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 65 of 114 Critically, the origin of payment – particularly in light of the facts leading up to it – is not "clear and convincing" evidence that Ernst & Young's financial conclusions regarding Inamed's insolvency were fraudulent and deceptive. This is especially the case considering that Class Counsel, after having retained Ernst & Young, negotiated with Inamed to cover the costs, which Ernst & Young received after provisional class certification. This conclusion is bolstered by the fact that Judge Pointer was aware of this arrangement. It was conspicuously included in the Settlement Agreement (to which all class members had and have access), and which was approved as fair, adequate, and reasonable. The Inamed Settlement, therefore, reflected the maximum available payout to current and future claimants, and according to the agreement, the whole fund was earmarked exclusively for the class. Relatedly, Juris has never denied that the outstanding tort claims vastly exceeded the $31.5 million fund. In this regard, the Inamed Settlement satisfied the first and second guideposts marked by Ortiz. See Ortiz, 527 U.S. at 838 ("[T]he totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay all the claims."); id. at 839 ("[T]he whole of the inadequate fund was to be devoted to the overwhelming claims."). The only remaining issue is whether Judge Pointer's Order 47B, which determined the distribution plan, equitably treated the claimants. See id. at 839-40. The Ortiz Court concluded that the equal, pro rata distribution of the Fibreboard Settlement Fund was inequitable: [T]he class included those exposed to Fibreboard's asbestos products before and after 1959. The date is significant, for that year saw the expiration of Fibreboard's insurance policy with Continental, the one which provided the bulk of the insurance funds for the settlement. Pre-1959 claimants accordingly had more valuable claims 65 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 66 of 114 than post-1959 claimants, the consequence of being [another] instance of disparate of disparate interests within the certified class. . . . . The settlement decides that the claims of the immediately injured deserve no provisions more favorable than the more speculative claims of those projected to have future injuries, and that liability subject to indemnification is no different from liability with no indemnification. The very decision to treat them all the same is itself an allocation decision with results almost certainly different from the results that those with immediate injuries or claims of indemnified liability would have chosen. Ortiz, 527 U.S. at 857 (internal citation omitted). But this case is not Ortiz. Here, the equal payout was the fairest distribution method for two reasons. First, Judge Pointer concluded that differential payouts would have required significant processing costs – administrative expenses which would have been charged against the Settlement Fund and, accordingly, would have reduced claimants' individual recovery. (Doc. #70, Order 47B at 3-5). Second, Judge Pointer, responding to class members' objections requesting graduated payment schedules, concluded that a sliding scale would have been inconsequential: "This fund is . . . so severely limited in relation to the number of potential claimants that such a plan – with its substantially increased administrative costs – would not greatly increase the amount of distribution to those determined to be eligible for enhanced benefits and would, of course, decrease even more the meager distributions to other claims members." (Doc. #70, Order 47B at 5). Thus, unlike Ortiz, which involved a multibillion dollar settlement and a comparable number of claimants as the Inamed Class, the limited availability of money here necessitated an equal distribution to fairly apportion the Settlement Fund among the diverse class members. To the extent that the settlement differentiated between present and future claimants, the 66 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 67 of 114 differential would have been ultimately de minimis; accordingly, Judge Pointer correctly approved the distribution plan. C. Relevant Due Process and Personal Jurisdiction Standards34 In Phillips Petroleum Co. v. Shutts, the Supreme Court addressed the contours of personal jurisdiction over absent, non-resident class members in a state court class action involving damages claims. 472 U.S. 797, 811-12 (1985). As a general matter, the Court concluded that "a forum State may exercise jurisdiction over the claim of an absent class-action plaintiff, even though that plaintiff may not possess the minimum contacts with the forum which would support personal jurisdiction over a defendant." Id. at 811. The Court identified three procedural safeguards necessary to secure personal jurisdiction over absent class members. Id. at 812. First, the absent class-action plaintiff "must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel. The notice must be the best practicable . . . ." Id. Second, "due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an 'opt out' or 'request for exclusion' form to the court." Id. "Finally, the Due Process Clause of course requires that the named plaintiff at all times adequately represent the interests of the absent class members." Id. Importantly, the Court limited the scope of Shutts only "to those class actions which seek to bind known plaintiffs concerning claims wholly or predominately for money judgments." Id. at 812 n.3. By circumscribing the scope of its holding, the Court "intimate[d] no view concerning other 34 To the extent that Juris's argument challenges due process and, relatedly, personal jurisdiction, it falls within Rule 60(b)'s subdivision (4), which authorizes relief when "the judgment is void." See Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) ("Generally, a judgment is void under Rule 60(b)(4) if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.") (citation and internal quotation marks omitted). 67 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 68 of 114 types of class actions, such as those seeking equitable relief." Id. Important to the present case, the lower federal courts, post-Shutts, have divided as to whether this carve-out applies to Rule 23(b)(1)(B) limited fund class actions. Since Shutts, three cases have presented the Supreme Court with the opportunity to resolve this issue; however, each time, the Supreme Court has declined to resolve the uncertainty. The following chronicles these attempts. First, in In re Real Estate Title & Settlement Services Antitrust Litigation, the Third Circuit reviewed directly the district court's anti-suit injunction and collaterally the decision to certify a mandatory Rule 23(b)(1) and (b)(2) class action. 869 F.2d 760, 763-64 (3d Cir. 1989). The Third Circuit acknowledged that, when a class action is certified pursuant to Rule 23(b)(1) or Rule 23(b)(2), the action is not "wholly or predominately" for money damages in the Shutts sense even if it effectively forecloses substantial damage claims; rather, the case is equitable in nature, which requires distinct procedural considerations. Id. at 768. The Third Circuit, however, expressly tabled analysis of "due process requirements in a class action certified under Rule 23(b)(1) in which there is only a limited common fund from which the plaintiffs can obtain relief." Id. at 768 n.8. Shutts, according to the Third Circuit and based on the Supreme Court's careful qualification, does not control when a class action is properly certified pursuant to Rule 23(b)(1) or Rule 23(b)(2). The Supreme Court denied certiorari review. Chicago Title Ins. Co. v. Tuscon Unified Sch. Dist., 493 U.S. 821 (1989). Five years later, the Ninth Circuit partially endorsed the Third Circuit's interpretation of Shutts insofar as it concerned equitable relief. In Brown v. Ticor Title Insurance Co., the Ninth Circuit considered a collateral challenge to the same class settlement involved with the Real Estate Title litigation. 982 F.2d 386, 388 (9th Cir. 1992). The court concluded that a hybrid case, involving 68 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 69 of 114 both equitable relief and damage claims, requires application of Shutts insofar as the damage claims are involved; specifically, class members must be afforded the opportunity to opt out, even as to an otherwise mandatory action, to the extent that damage claims are bundled with purely equitable relief. Id. at 392. The Ninth Circuit, therefore, concluded that claims retain their legal or equitable qualities despite the basis for certification. See id. After the Ninth Circuit's decision, the Supreme Court granted a writ of certiorari as to the following question: "[W]hether a federal court may refuse to enforce a prior federal class action judgment, properly certified under Rule 23, on grounds that absent class members have a constitutional due process right to opt out of any class action which asserts monetary claims on their behalf." Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 120-21 (1994). After granting certiorari, however, the Court dismissed the writ as improvidently granted and avoided deciding the general applicability of Shutts to mandatory class actions. Id. at 118. In In re Asbestos Litigation, the Fifth Circuit considered the applicability of Shutts to mandatory, limited fund class actions certified pursuant to Rule 23(b)(1)(B). 90 F.3d 963, 986-87 (5th Cir. 1996). The Fifth Circuit, affirming the district court's certification of a mandatory class action and approval of the settlement regarding asbestos related injuries, concluded that "[t]he limitation of Shutts to claims of known plaintiffs that are predominately for money damages forecloses application of its holding to 23(b)(1)(B) actions which have always been equitable and often involve unknown plaintiffs." Id. at 986 (citation omitted). The Fifth Circuit elaborated: "Limited-fund class actions effect a pro-rata reduction of all claims in order to treat all claimants fairly. Thus, they sound in equity even though the relief they provide necessarily affects the amount of money damages that claimants can ultimately receive." Id. (citations omitted). Accordingly, the 69 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 70 of 114 Fifth Circuit reasoned that adequacy of representation, as delineated in Hansberry v. Lee, 311 U.S. 32 (1940), is the exclusive test for due process and, correspondingly, personal jurisdiction in an equitable proceeding under Rule 23(b)(1)(B) even if personal injury claims are released. Id. The Supreme Court granted certiorari and reversed the Fifth Circuit. Ortiz v. Fibreboard Corp., , 821 (1999). Importantly, the Supreme Court had the opportunity to address the Fifth Circuit's constitutional analysis as described above, but Ortiz narrowly evaluated only the substantive requirements embedded in Rule 23(b)(1)(B): "We hold that applicants for contested certification on [a limited fund rationale] must show that the fund is limited by more than the agreement of the parties, and has been allocated to claimants belonging within the class by a process addressing any conflicting interests of class members." Id.; see also id. at 830 ("The nub of this case is the certification of the class under Rule 23(b)(1)(B) on a limited fund rationale . . . ."). Although generally considering the Seventh Amendment, the Rules Enabling Act, and Shutts, the Court included those references as "counsel against leniency in recognizing mandatory limited fund actions in circumstances markedly different from the traditional paradigm." Id. at 864; see also id. at 842 ("[T]his limiting construction [as to Rule 23(b)(1)(B)] . . . avoids serious constitutional concerns raised by the mandatory class resolution of individual legal claims, especially where a case seeks to resolve future liability in a settlement-only action."). In other words, the Court acknowledged that certifying a mandatory limited fund settlement as to unliquidated tort claims may raise constitutional concerns but did not in any way actually decide that issue. Rather, it resolved the appeal on a construction of Rule 23(b)(1)(B) instead of due process. Its analysis, therefore, stopped short of reaching the ultimate issue: whether and under what circumstances mandatory class members have a constitutional right to opt out. As the Court observed, "[u]nlike Rule 23(b)(3) class 70 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 71 of 114 members, objectors to the collectivism of a mandatory subdivision (b)(1)(B) action have no inherent right to abstain. The legal rights of absent class members (which in a class like this one would include claimants who by definition may be unidentifiable when the class is certified) are resolved regardless either of their consent, or, in a class with objectors, their express wish to the contrary." Id. at 846-47. If anything, it could be argued that the Supreme Court concluded by implication that, if the conditions precedent to Rule 23(b)(1)(B) certification are satisfied, then the class members have no right – constitutional or otherwise – to opt out of the settlement. See Ortiz, 527 U.S. at 842. But a more accurate reading of the opinion reveals that the decision hinged only on an analysis of Rule 23 without overlaying constitutional guidelines. Thus, the Fifth Circuit's due process conclusion that (1) Rule 23(b)(1)(B) class members have no right to opt out under Shutts and, relatedly, (2) adequacy of representation is the proxy for personal jurisdiction in limited fund cases "was not disturbed by the Supreme Court [because] the case was reversed on other grounds." 4 NEWBERG ON CLASS ACTIONS § 13:34 (4th ed. 2009). Indeed, the Court did "not rule[] out the possibility under the present Rule of a mandatory class to deal with mass tort litigation on a limited fund rationale . . . ." Ortiz, 527 U.S. at 862 (emphasis added). Juris's contention that, by quoting Shutts, the Ortiz Court extended opt-out requirements to Rule 23(b)(1)(B) class actions is plainly unsupported; rather, the Court cautiously avoided any decision as to that matter.35 35 Juris's counsel eventually accepted this conclusion at the December 14, 2009 hearing: THE COURT: MR. W HATLEY: W as Ortiz decided on in personam jurisdiction? No, it wasn't decided on that point. It wasn't Your Honor. It was decided based on the fact that it said you really can't use Rule 23(b)(1)(B) for this kind of settlement. 71 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 72 of 114 Based on this history, two points are relevant here. First, there is a critical distinction between the text of Rule 23 and ancillary constitutional protections (that, of course, trump). In Ortiz, for example, without intimating its view regarding a class member's purported right to opt out, the Supreme Court noted that the text of Rule 23 does not afford such a right. Ortiz, 527 U.S. at 846-47. A plain application of the Rule, without considering adequacy of representation or similar constitutional mandates, precludes an absent class member's ability to abstain from the approved mandatory settlement. As explained more fully above, the Inamed Settlement Class satisfied the rigors of Rule 23(b)(1)(B) as outlined in Ortiz; accordingly, Rule 23, standing on its own, disposes of Juris's claim to exclusion. Second, and more importantly, the applicability of Shutts to a limited fund class action is unsettled – at least by the Supreme Court. See 2 NEWBERG ON CLASS ACTIONS § 4.9 (4th ed. 2009) ("The debate about whether class members have the right to opt out of a Rule 23(b)(1)(B) action has generated divergent views by the courts and academic communities."). Attempting to answer the constitutional question, the Circuit Courts have splintered regarding the right to opt out of a limited fund class action. As mentioned, the Ninth Circuit held that Shutts applies when the mandatory class action forecloses damage claims notwithstanding certification under a limited fund theory. Ticor Title Ins., 982 F.2d at 392. More precisely, the Ticor Title approach eliminates application of claim preclusion as a defense to an absent class member's subsequently filed lawsuit covering the same subject matter as the mandatory class action. Id. To the contrary, the Fifth Circuit held that Shutts is inapplicable and, in fact, absent class members are precluded from opting out. Asbestos Litig., 90 F.3d at 986-87. Similarly, the Sixth and Seventh Circuits reasoned that, after Ortiz, courts must rigidly police the requirements under Rule (Doc. #287, 12/14/09 Hearing Transcript 102:1-5) (emphasis added). 72 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 73 of 114 23(b)(1)(B) precisely because class members lack the right to abstain from the litigation. In re Telectronics Pacing Sys., 221 F.3d 870, 881 (6th Cir. 2000); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 897 (7th Cir. 1999) ("[The right to opt out] may be overcome only when individual suits would confound the interest of other plaintiffs – when, for example, there is a limited fund that must be distributed ratably, the domain of Rule 23(b)(1) . . . ."); see In re Jackson Lockdown/MCO Cases, 107 F.R.D. 703, 714 (E.D. Mich. 1985) ("The Supreme Court [in Shutts] did not reach the issue of what process is due for monetary claimants to a limited fund, at least in federal court. Thus, the opinion did not invalidate [Rule 23(b)(1)(B)] either."); see also 7AA FEDERAL PRACTICE & PROCEDURE – CIVIL § 1789.1 (3d ed. 2010) ("Further, some courts have concluded that the Shutts criteria do not apply to a Rule 23(b)(1) action seeking damages from a limited fund, but are restricted to the common-question damage action under Rule 23(b)(3) in which the class members are linked together only by common questions and may have individual interests necessitating additional protection."). Without referencing Shutts, the Second Circuit has reached a middle ground and authorized its district courts to exercise their discretion when petitioned with an exclusion request in a mandatory class action. County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1303-05 (2d Cir. 1990). But see In re Joint E. & S. Dist. Asbestos Litig., 78 F.3d 764, 777-78 (2d Cir. 1996) (concluding that Shutts is inapplicable to Rule 23(b)(1)(B) class actions); Messier v. Southbury Training Sch., 183 F.R.D. 350, 353 (D. Conn. 1998) (concluding, based on Shutts, that with claims "wholly or predominately for money judgments, due process requires that absent plaintiffs receive notice and an opportunity to opt out, even in actions certified under (b)(1) or (b)(2)"). The D.C. Circuit followed Suffolk and held that "the language of Rule 23 is sufficiently flexible to afford 73 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 74 of 114 district courts discretion to grant opt-out rights in (b)(1) and (b)(2) class actions." Eubanks v. Billington, 110 F.3d 87, 94 (D.C. Cir. 1997). Cabining this discretion, however, the D.C. Circuit instructed that "[a]lthough as a general matter, courts should not permit opt-outs when doing so would undermine the policies behind (b)(1) or (b)(2) certification, where both injunctive and monetary relief are sought, the need to protect the rights of individual class members may necessitate procedural protections beyond those ordinarily provided under (b)(1) and (b)(2)." Id. at 94-95. The Third Circuit has expressly avoided the issue, Real Estate Title, 869 F.2d at 768 n.8, but the Eastern District of Pennsylvania in In re Orthopedic Bone Screw Products Liability Litigation, 176 F.R.D. 158, 180-81 (E.D. Pa. 1997), adopted the Fifth Circuit's analysis in In re Asbestos Litigation, 90 F.3d at 986-87. Likewise, the Fourth Circuit sidestepped the interplay between Shutts and Rule 23(b)(1)(B) and decided an appeal on firmer ground. In re A.H. Robbins Co., 880 F.2d 709, 745 (4th Cir. 1989) ("Fortunately, however, Shutts – if taken as requiring an opt-out provision in any class certification, and assuming without deciding, that opt-out could not be validated here under the Mathews v. Eldridge standard – is satisfied in this case."). Indeed, the Eleventh Circuit has not decisively analyzed the effect of Shutts on Rule 23(b)(1)(B). The court nearly reached the issue in In re Temple, 851 F.2d 1269 (11th Cir. 1988), which reviewed the Northern District of Georgia's certification of a Rule 23(b)(1)(B) class action. In Temple, the limited fund class action included all present and future asbestos-related personal injury actions against the defendant. Id. at 1270. The Eleventh Circuit granted the petitioners' writ of mandamus and ordered the district court to vacate its certification order. Id. Among other reasons, the district court had failed to direct notice to any class member, and as a result, the certification process was fatally non-adversarial. Id. at 1272-73. In a footnote, however, the 74 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 75 of 114 Eleventh Circuit acknowledged Shutts and its potential impact on limited fund actions: "The petitioners may also have the right to opt out of even a mandatory class action where the predominant issue is money damages. . . . A literal reading of Shutts would provide another basis for vacating the district court's order. However, no federal appellate court has yet so held, and we need not reach this issue in the present case." Id. at 1272 n.5. This observation, although perhaps cautionary, is mere dictum. On remand from the Eleventh Circuit, the Northern District of Georgia reassessed the propriety of certifying a mandatory limited fund class action. Waldon v. Raymark Indus., Inc., 124 F.R.D. 235, 236 (N.D. Ga. 1989). Despite the parties' efforts at curing the defects identified by the Eleventh Circuit, the Northern District of Georgia, nevertheless, refused to certify the class action on constitutional grounds. Id. at 237-38. The court, referencing Shutts yet conceding that it is "not directly on point," concluded that "a mandatory class action would violate the constitutional rights of those persons who have insufficient contacts to allow the court to exercise personal jurisdiction over them." Id. at 238. In other words, the court reasoned that, even if Rule 23 authorizes the certification, the Due Process Clause limits the reach of a limited fund class action involving tort claims only to those class members who have minimum contacts with the forum or otherwise satisfy personal jurisdiction. See id. The Northern District of Georgia, therefore, rejected the Eleventh Circuit's footnoted suggestion: The idea of a mandatory class with opt out rights, besides being oxymoronic, is contrary to the very purpose for which a Rule 23(b)(1)(B) class action is meant to serve. A Rule 23(b)(1)(B) class action is designed to preserve the limited fund for the entire class against the individual claims of class members prosecuted through separate suits. Allowing plaintiffs to opt out of a Rule 23(b)(1)(B) class action would defeat this purpose. 75 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 76 of 114 Id. at 238 n.1. The Raymark approach renders constitutional considerations relevant only at the certification decision. See 5 MOORE'S FEDERAL PRACTICE – CIVIL § 23.42 ("Some courts have simply refused to certify class actions in which Due Process demands opt out rights but Rule 23 does not authorize them."). Under such an analysis, if the claims approximate the sort of relief contemplated by Shutts, then the court should refuse certification of a mandatory class action. But as the court clarified in response to the Eleventh Circuit's footnote, this consideration must precede the certification decision; otherwise, opting out would be counterproductive in light of Rule 23(b)(1)(B)'s function. Raymark, 124 F.R.D. at 238 n.1. In short, the applicability of Shutts to Rule 23(b)(1)(B) class actions is far from settled by the Supreme Court or the Circuit Courts, including the Eleventh Circuit. Some decisions have pointed toward a constitutional right to opt out while others have reached the contrary conclusion. But the decisions, such as Ticor Title and Raymark, recognizing a constitutional right to abstain, assume that Rule 23(b)(1)(B) limited fund cases, including those purporting to settle unliquidated tort claims, involve claims "wholly or predominately" for money judgments. In a truly limited fund scenario, however, that assumption is mistaken. When a court certifies damage claims under Rule 23(b)(1)(B), the class invokes "the equitable powers of a court to fairly apportion money damages among all claimants and, therefore, [does] not fall within the general prohibition against certification of money-damage actions under Rule 23(b)(1)(B)." 5 MOORE'S FEDERAL PRACTICE – CIVIL § 23.42. That is, even though the class relief may involve exclusively or predominately money damages, in a properly certified Rule 23(b)(1)(B) limited fund class action, the claims are nevertheless equitable 76 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 77 of 114 in nature. 36 In this case, and as discussed more fully above, the settlement represented a classically limited fund – its existence exclusively reserved for resolving outstanding tort claims and wholly dependent on the court's certification of a mandatory class. Division of this fund, which reflected the maximum aggregate payout available for resolving breast implant claims, closely approximated the distribution of trust assets, see In re Joint E. & S. Dist. Asbestos Litig., 78 F.3d 764, 777-78 (2d Cir. 1996) ("[T]he present action, though it ultimately will affect the amount of damages that each member of the plaintiff class will be entitled to receive, is not an action for money damages but is rather an action in equity for the restructuring of the Trust."), or the adjudication of creditors' claims against an insolvent debtor, see Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure, 81 HARV. L. REV. 356, 388-89 ("[A]n action by one of a numerous group of claimants attacking a fund insufficient to satisfy the demands of all claimants may illustrate that impairment of the ability of other members to protect their rights in the fund, which suggests that the class-action device should be put to work."). At bottom, this case, like other true limited fund cases, required the unitary and exclusive division of an asset (i.e., the settlement fund) to which thousands of claimants were 36 This conclusion is buttressed by examining the historical antecedents of the modern day limited fund class action. The Advisory Committee non-exhaustively identified the following examples of limited fund cases necessitating mandatory aggregation: "an action by policy holders against a fraternal benefit association attacking a financial reorganization of the society," "an action which charges a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class of security holders," "actions by the corporation for corresponding declarations of rights," and "an action by a creditor to set aside a fraudulent conveyance by the debtor and to appropriate the property to his claim, when the debtor's assets are insufficient to pay all creditors' claims." FED. R. CIV. P. 23 Advisory Committee Note (1966 Amendments). Ordinarily, these claims, if successful, would result in money judgments. For example, fixing creditors' rights in a debtor's fraudulent conveyance is a distinctly legal basis for relief – that is, a creditor has a legal right to recover the money owed by the debtor. But the rule that proceeded from the recommendations of the Advisory Committee, which withholds a right to opt out, demonstrates the point that limited fund class treatment converts an otherwise legal claim into equitable relief. Thus, it is not the characteristic of the claim, but rather how the claim is properly characterized in the context of limited fund division, that determines whether Shutts applies. 77 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 78 of 114 entitled, and the aggregate of these claims, based on the evidence before Judge Pointer at certification, vastly exceeded the asset's total value. Given its equitable nature, therefore, the process was sufficiently removed from the scope of Shutts and its associated due process requirements. See Orthopedic Bone Screw Prods. Liab. Litig., 176 F.R.D. at 180 ("Limited fund class actions 'sound in equity even though the relief they provide necessarily affects the amount of money damages that claimants can ultimately receive.' . . . Therefore, Shutts does not prohibit mandatory class certification under Rule 23(b)(1)(B) which is purely equitable in nature.") (quoting Asbestos Litig., 90 F.3d at 986). Of course, even though Shutts does not compel mandatory opt out rights, Rule 23(b)(1)(B) class members are entitled to procedural safeguards. But the process due under Shutts is not coextensive with the process due in a limited fund case. See generally Mathews v. Eldridge, 424 U.S. 319, 334 (1976) ("[D]ue process is flexible and calls for such procedural protections as the particular situation demands.") (citation omitted). Indeed, as to class members with causes of action for money judgments against a defendant capable of surviving non-aggregate litigation, 37 the right to opt out is a workable compromise when class members are dissatisfied with settlement proposals. Against a limited fund, on the other hand, the same dynamics are plainly inapplicable. As the Sixth 37 The court is mindful that every civil defendant, at some level, has fixed assets perhaps incapable of withstanding numerous high-magnitude judgments instead of a class action settlement and the attendant global peace. As the Sixth Circuit explained, "[p]resumably all companies have limited funds at some point – there is always the possibility that a large mass tort action or other litigation will put a company into bankruptcy." Telectronics, 221 F.3d at 880. In this regard, "[t]he district court cannot discharge the debt in advance of the occurrence [of insolvency], thereby usurping the bankruptcy scheme through settlement, even [if] it believes such an avenue to be in the best interests of most of the plaintiffs." Id. (citation omitted). This case, however, does not require imprecise or indeterminate line-drawing as to whether a defendant's assets are sufficiently fixed or its operation is indeed insolvent; here, Inamed's assets were negative at certification, and only through third party financing did the settlement fund even exist. To the extent that Inamed held assets at certification, they were wholly encumbered and effectively unreachable by the breast implant claimants. Accordingly, the applicability of limited fund treatment to a financially healthy company's outer limits, based on market capitalization, book value, or some other valuation method, is simply not implicated by Judge Pointer's certification decision. 78 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 79 of 114 Circuit explained, "[f]rom a due process point of view, the opt-out choice is of less concern when there is a definite fund or res from which plaintiffs will receive damages. When there is a true limited fund, the only question is how to divide up the pie. Where defendants have sufficient funds to compensate class members through individual litigation, however, . . ., the choice to opt out becomes much more meaningful and due process demands that class members be afforded that right where possible." Telectronics, 221 F.3d at 881; see also Ortiz, 527 U.S. at 841 n.18 ("[W]here a case presents a limited fund, 'it is impossible to make a fair distribution of the fund . . . to all members of the multitude except in a single proceeding where the claim of each can be adjudicated with due reference to the claims of the rest. The fund . . . is like a mince pie, which can not be satisfactorily divided until the carver counts the number of persons at the table.'") (quoting Zechariah Chafee, Bills of Peace with Multiple Parties, 45 HARV. L. REV. 1297, 1311 (1932 . Accordingly, by definition, a properly certified limited fund class action presupposes seriatim litigation. Class action treatment in this context, therefore, eliminates the incentive for "an unseemly race to the courtroom door with monetary prizes for a few winners and worthless judgments for the rest." Coburn v. 4-R Corp., 77 F.R.D. 43, 45 (D. Ky. 1977); see also Ortiz, 527 U.S. at 838 ("The concept driving [limited fund treatment] was insufficiency, which alone justified the limit on an early feast to avoid a later famine."). Indeed, Rule 23(b)(1)(B) covers "situations where the judgment in a nonclass action by or against individual members of the class, while not technically concluding the other members, might do so as a practical matter." FED. R. CIV. P. 23 Advisory Committee Note (1966 Amendment). Consequently, only if the fund is secured in a single court, which remains wholly responsible for its equitable division, does the fair treatment of all affected parties become possible. Permitting opt outs would undercut the court's ability to fairly apportion the fund among 79 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 80 of 114 its claimants and would thwart the efficacy of limited fund class treatment. The necessity of limited fund treatment transforms otherwise legal claims into equitable claims. See Joint E. & S. Dist. Asbestos Litig., 78 F.3d at 777-78 ("[T]he present action, though it ultimately will affect the amount of damages that each member of the plaintiff class will be entitled to receive, is not an action for money damages but is rather an action in equity for the restructuring of the Trust.") (citing In re Joint E. & S. Dist. Asbestos Litig., 982 F.2d 721, 735 (2d Cir. 1992 ; see also 5 MOORE'S FEDERAL PRACTICE – CIVIL § 23.42 (2009) ("Although limited fund cases involve money claims, they nevertheless are considered to be equitable in nature."); 1 NEWBERG ON CLASS ACTIONS § 1:9 (4th ed. 2009) (tracing Rule 23(b)(1)(B)'s origins to the compulsory joinder rule developed by the English courts of equity and this country's Federal Equity Rule 48, codified in 1842). The particular facts of this case amplify these considerations. The $31.5 million, advanced by Inamed's senior creditors, reflected the maximum available payout for breast implant litigants. If Judge Pointer had authorized particular swatches of class members, such as the manifested injury claimants, to opt out, then only a handful of successful lawsuits would have depleted the fund,38 especially given the high-magnitude jury verdicts reached in similar cases and the enormous transactional expenses associated with defending those cases. Such an arrangement would have rewarded only the very few litigants who removed themselves and had the first opportunity to exploit the most expeditious judicial forum for trial. Accordingly, because the $31.5 million fell woefully below the aggregate sum of claims pending against Inamed, non-aggregate litigation would have 38 This, of course, assumes that the fund would have existed under such circumstances. In fact, the senior secured note holders would have withdrawn the fund altogether and forced Inamed into liquidation if Judge Pointer had granted exclusion requests. (Doc. #269-5, Decl. of Class Counsel ¶ 6). The $31.5 million existed only because the court certified the class pursuant to Rule 23(b)(1)(B) and would not have been available in the absence of such certification. 80 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 81 of 114 been "dispositive of the interests of the other members not parties to the individual adjudications." FED. R. CIV. P. 23(b)(1)(B); see also discussion supra Part III.C (concluding that Order 47A either is un-reviewable as to its limited fund conclusion or satisfies Ortiz). At bottom, therefore, Shutts does not compel the conclusion that Juris is entitled to abstain from the Inamed Class Settlement because claims against a limited fund are equitable in nature – they are not claims "wholly or predominately for money judgments." And in light of the purposes served through Rule 23(b)(1)(B) class certification, the court concludes that due process does not require a right to exclusion. 39 Rewriting Rule 23(b)(1)(B) and supplying a right to opt out would render that particular class mechanism wholly ineffectual. As a general matter, a properly certified class action, attended by the requisite due process safeguards embedded in and concretized by Rule 23, authorizes the exercise of personal jurisdiction over absent class members. See Bayshore Ford Trucks Sales, Inc. v. Ford Motor Co., 471 F.3d 1233, 1245 (11th Cir. 2006) ("The granting of class certification under Rule 23 authorizes a district court to exercise personal jurisdiction over unnamed class members who otherwise might be immune to the court's power."). The Due Process Clause mandates, at a minimum, that absent limited fund class members be adequately represented in order for them to be bound by the judgment. See Asbestos Litig., 90 F.3d at 986-87, rev'd on other grounds sub nom. Ortiz, 527 U.S. at 865; Orthopedic Bone Screw Prods. Liab. Litig., 176 F.R.D. at 180; see also Hansberry v. Lee, 311 U.S. 32, 42 (1940) (In an equitable proceeding, "there has been a failure of due process only in those cases where it cannot be said that the procedure adopted[] fairly insures the protection of the interests of 39 To be clear, the court reaches this conclusion only because the Inamed Class Settlement presented a truly limited fund scenario. If a purportedly limited fund is actually not "limited" in the Ortiz sense, then the justifications for precluding opt outs are inapplicable, and exclusionary rights are essential. 81 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 82 of 114 absent parties who are to be bound by it.") (citation omitted); Pelt v. Utah, 539 F.3d 1271, 1285 (10th Cir. 2008) ("There are no mandatory notice requirements in subsections (b)(1) and (b)(2) actions, and members do not have the opportunity to opt out of the class, opportunities accorded to subsection (b)(3) class members. As a result of these distinctions class members in (b)(1) and (b)(2) actions must necessarily rely on the representative to protect their interests.") (citations omitted). Consequently, when there is an actual limited fund (in the Ortiz sense), and there are representatives who adequately represent and protect absentees' interests, the court's judgment binds the class. In this case, therefore, the dispositive issue is whether Juris's interests, as an absent class member, were adequately represented during the certification and approval process. Juris contends that class representatives, class counsel, and various objectors did not adequately protect her interests. (Doc. #288 at 20-22). Specifically, she identifies six representational defects: (1) "[n]one of the objectors raised the issue of personal jurisdiction over an absent class member in [her] position;" (2) "[n]one of the objectors appealed the issue of the applicability of the Ortiz case which was pending in the Supreme Court at the time that the Inamed final judgment was approved;" (3) "[n]one of the objectors filed a Rule 60 motion to attack the settlement when Inamed filed public documents demonstrating a more favorable financial condition;" (4) Juris "had injuries that were not yet manifest;" (5) Juris "had no knowledge that her implants were manufactured by the defendant;" and (6) "the settlement did not sufficiently distinguish and protect the rights of those . . . who would experience future injuries, as required by Amchem and Ortiz." (Doc. #288 at 21-22). Before addressing each alleged inadequacy, clarifying the appropriate analytical framework is necessary. Rule 23(a)(4) requires "the representative parties [to] fairly and adequately protect the interests of the class." FED. R. CIV. P. 23(a)(4). As analyzed above, this is not merely a procedural 82 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 83 of 114 requirement – it is constitutionally essential. When collaterally examining the adequacy of representation, the court must consider "a two-pronged inquiry: (1) Did the trial court in the first suit correctly determine, initially, that the representative would adequately represent the class? and (2) Does it appear, after the termination of the suit, that the class representative adequately protected the interest of the class?" Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir. 1973). The first prong addresses the standard generally applicable at the certification decision: "(1) the representative must have common interests with the unnamed members of the class; and (2) it must appear that the representative will vigorously prosecute the interests of the class through qualified counsel." Id.; see also 1 NEWBERG ON CLASS ACTIONS § 3:22 (4th ed. 2009) ("[T]he basic guidelines for the Rule 23(a)(4) prerequisites are (1) absence of conflict and (2) assurance of vigorous prosecution."). And with respect to this first prong, the inquiry is limited only to the facts before the district court at certification. This is in contrast with the second prong, which assesses representative adequacy during the class action's lifetime. But the post-judgment collateral examination of a representative's adequacy primarily hinges on "whether the representative, through qualified counsel, vigorously and tenaciously protected the interests of the class. A court must view the representative's conduct of the entire litigation with this criterion as its guidepost." Gonzales, 474 F.2d at 75. This "determination turns on whether the interests of the class were 'compatible' with those of the party attempting to attack the class action judgment collaterally." Wolfert v. Transamerica Home First, Inc., 439 F.3d 165, 173 (2d Cir. 2006) (citations omitted). "Once the case proceeds to final judgment and is asserted as part of a claim preclusion defense, the question shifts from incentive to litigate to whether the absent parties' interests were in fact vigorously pursued and protected." Pelt, 539 F.3d at 1287 (citing Hansberry, 311 U.S. at 42-43; Gonzales, 474 F.2d at 75; 18A FEDERAL PRACTICE 83 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 84 of 114 & PROCEDURE – CIVIL § 4455 (3d ed. 2007 . Under this framework, therefore, the lynchpin issue is not whether Judge Pointer correctly (or incorrectly) decided particular challenges to the Inamed Class Settlement; rather, a determination of adequate representation turns on whether the absentee's interests, assuming materiality, were actually presented and considered at certification. From this vantage, the court addresses Juris's challenges in turn. First, regarding personal jurisdiction, the law firm of Sheller Ludwig & Badey, on behalf of unspecified clients, and attorney Ann Bond, on behalf of class member Jennifer Chism, separately "contend[ed] that due process requires class members to be given an opportunity to opt out of class actions involving money damage claims, apparently relying on Phillips Petroleum v. Shutts, 472 U.S. 797, 811-12 & n.3 (1985) (in 'class actions which seek to bind known plaintiffs concerning claims wholly or predominately for money judgments,' a state court may constitutionally bind absent class members only if it affords them an opportunity to opt out)." (Doc. #290-5, Resp. of Inamed at 5-6).40 In 1998, Inamed offered the following response to the objectors' argument: In Adams v. Robertson, 117 S. Ct. 1028 (1997), however, the Supreme Court made clear that Shutts addressed only the narrow question of whether a "state court lacked personal jurisdiction over out-of-state class members, not the different and broader question of whether . . . due process requires that all class members have the right to opt out." 117 S. Ct. at 1030. Shutts did not purport to decide the jurisdictional reach of federal courts over absent plaintiff class members, and it pointedly declined to express a view on the extent of judicial power to bind absent class members, without a right of opt- out, in a suit seeking equitable distribution of a limited fund. 40 Although the objection does not use the terminology "personal jurisdiction," Shutts establishes the conditions precedent for a court to follow in order to exercise personal jurisdiction over Rule 23(b)(3) absentee class members – they are not procedural requirements generally applicable to class actions regardless of the circumstances. Shutts, 472 U.S. at 811-12. To the extent that Shutts bundles due process and personal jurisdiction, the objectors, because they contended that Shutts applies to a Rule 23(b)(1)(B) class action, effectively raised the personal jurisdiction issue. Indeed, as discussed more fully above, Inamed, in response to the objections, analyzed not only the purported right to opt out, but additionally the power of the court to bind absentee class members under Rule 23(b)(1)(B). 84 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 85 of 114 In fact, the judicial power to bind absent plaintiffs in a mandatory class action seeking to vindicate rights in a common fund has been recognized at least since Smith v. Swornstedt, 57 U.S. (16 How.) 288, 302-03 (1853) (in cases involving a "common interest in a common right," "[a] court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if all were before the court"). In the ensuing 140 years, the Supreme Court has repeatedly upheld the binding effect of these traditional class actions, so long as class members received adequate representation. In Hansberry v. Lee, 311 U.S. 32, 40 (1940), the court acknowledge that a "class" or "representative suit["] was a "recognized exception" to the general rule that an in personam judgment can have no binding effect on persons not parties to the proceeding. See also Richards v. Jefferson County, 517 U.S. 793, 798-99 (1996); Martin v. Wilks, 490 U.S. 755, 762 n.2 (1989) (both reaffirming Hansberry). None of these traditional equitable class action cases recognized or even suggested a due process right to opt out, and the same necessarily is true [as to] their direct lineal descendant under modern procedure, the "limited fund" class action under Rule 23(b)(1)(B). Analogizing to these equitable antecedents, modern courts have reasoned that due process requires no right to opt out, and courts may bind class members otherwise absent from the jurisdiction, where necessary to bring about an equitable distribution of a limited fund too small to survive litigation of individual claims. E.g., In re Orthopedic Bone Screw Prod. Liab. Litig. (Acromed), 176 F.R.D. 158, 180-81 (E.D. Pa. 1997); In re Jackson Lockdown/MCO Cases, 107 F.R.D. 703, 710 (E.D. Mich. 1985). (Doc. #290-5, Resp. of Inamed at 6-7) (footnotes omitted). In support of the settlement and against the right to opt out, Class Counsel stated that "in this case, even the allowance of a single opt out would cause the financing upon which the proposed settlement, and Inamed's continued solvency depend, to collapse. Even if this court were not constrained to do equity to the class in these limited fund circumstances, the allowance of even a single opt-out would not constitute 'basic fairness' either to the majority of the class members, or to those few who have indicated the desire to opt out. Upon opt out, their claims would not get far before being halted by Inamed's insolvency or bankruptcy. 85 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 86 of 114 The ensuing race to the courthouse door would be called on account of bankruptcy before the opt-out racers had left the starting blocks." (Doc. #290-6, Resp. of Settlement Class Counsel at 9-10). Judge Pointer, after considering these objections, overruled them and, by implication, endorsed Defendants' analysis as to Shutts, due process, and personal jurisdiction over absent class members in Rule 23(b)(1)(B) class actions. (Doc. #59, Order 47A ¶ 5(d . Accordingly, to the extent that Juris argues that her interests were inadequately represented because objectors did not raise a personal jurisdiction challenge, her contention is simply inaccurate. Second, Juris claims that the class representatives and objectors were inadequate because they did not appeal Orders 47A and 47B after the Supreme Court's decision in Ortiz. (Doc. #288 at 21). On the one hand, even if filed on the same day Ortiz was decided, an appeal of Order 47A would have been untimely. Judge Pointer entered Order 47A, which certified the class pursuant to Rule 23(b)(1)(B), on February 1, 1999. (Doc. #59, Order 47A). On June 23, 1999, nearly five months later, the Supreme Court decided Ortiz. Order 47A, which contained Judge Pointer's factual findings and conclusions of law as to certification, was effectively unappealable once the Supreme Court decided Ortiz. On the other hand, Juris's argument begs the question by assuming that Judge Pointer wrongly decided Order 47A, and the Eleventh Circuit or the Supreme Court would have reversed his decision by considering Ortiz's guideposts. As discussed above, however, Order 47A satisfies the requirements for Rule 23(b)(1)(B) class treatment as outlined by the Supreme Court, and given the absence of a substantial question to the contrary, the court cannot conclude that Juris was inadequately represented (based upon the lack of an appeal). Additionally, Juris has not identified any cases to suggest that the class representatives' or the objectors' failure to appeal a settlement, in the abstract, renders them constitutionally inadequate. 86 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 87 of 114 Nevertheless, the former Fifth Circuit's decision in Gonzales v. Cassidy is instructive. There, the court held that a named representative's decision not to appeal a class judgment is inadequate representation when the failure would advance the named representative's interests while prejudicing the absentees' interests. Gonzales, 474 F.2d at 75 ("The narrow question, therefore, is whether Gaytan's failure to appeal this order, which denied retroactive relief to all members of the class except Gaytan, constitutes inadequate representation of the class so that they are not bound by the judgment. We are compelled to hold that Gaytan's failure to prosecute an appeal on behalf of the other members of his class rendered his representation of them inadequate."); see also Brown, 982 F.2d at 390 ("In Gonzales, the class members collaterally attacked the settlement, demonstrating that the class representative secured a better monetary deal for himself than the rest of the class, and it was because of this that he failed to pursue an appeal on behalf of the class."). Gonzales does not purport to identify the only scenario whereby a class representative's decision not to appeal renders representation inadequate. But it does reveal that a representative's litigation choice implicates adequacy when the decision advances the representative's interests by subordinating absent class members' interests. That holding accords with general principles regarding adequacy of representation. See, e.g., In re N. Dist. of Cal. Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d 847, 855 (9th Cir. 1982) (defining "adequate representation" as "an absence of antagonism" or "a sharing of interests between representatives and absentees"). Here, unlike Gonzales, the named representatives received the same payout under the Inamed Class Settlement as the absentee class members, such as Juris. Accordingly, Juris was adequately represented, despite the representatives' decision not to appeal, because the class representatives benefitted no more – and no less – than Juris by not appealing Order 47A. 87 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 88 of 114 The court fully acknowledges that, conceivably, tactical decisions, such as a decision not to appeal, may be relevant to the adequacy analysis. For example, some strategy decisions may be so patently unwise that they cast doubt on the representative's zeal. Absent the extreme, however, a deferential standard must be applied in order to avoid post-judgment dissection of each decision culminating in the class judgment because "[a]n overly liberal application of unrestricted de novo collateral review endangers the finality of judgments and discourages the desire to effect a compromise." 4 NEWBERG ON CLASS ACTIONS § 11:64 (4th ed. 2009). At least one commentator has suggested that "[a] better approach would adopt a strong presumption of fairness of the judgment after settlement, requiring the moving party to rebut the presumption by demonstrating that a defect in the proceedings went uncorrected by court or counsel, and that the defect affected the litigation in a manner prejudicial to the class or the individual member." Id. Otherwise, the finality attendant to a judgment is replaced with unconstrained collateral proceedings that scrutinize, without the benefit of firsthand supervision, the representative's choices. Here, Judge Pointer's decision to certify the class pursuant to Rule 23(b)(1)(B), even without the benefit of Ortiz, did not present the sort of substantial error likely to motivate a class representative or objector to appeal (especially considering, as discussed above, that in any event Order 47A passes Ortiz muster). Indeed, Judge Pointer actually considered the impact of Ortiz on the Inamed Class Settlement when he observed that, "[u]nlike the situation in [Ortiz], there cannot be any serious dispute about this being a 'limited' fund case – indeed an extremely 'limited' fund case to the extent of providing what most claimants would view as only 'de minimis' distributions." (Doc. #70, Order 47B at 2 n.6). Would there have been value in having the parties brief this issue? 88 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 89 of 114 Perhaps, but perhaps not. Judge Pointer reviewed Ortiz and concluded independently that the decision did not bar class treatment in this case. He was right. Moreover, prudent tactical reasons existed for not appealing Order 47A. As described throughout, Inamed's senior creditors conditioned their financing on the existence of a mandatory class. If class members had appealed the certification decision, a substantial risk existed that, instead of facing further litigation, the senior creditors would withdraw the funding, force Inamed into bankruptcy, and recoup their investment without further consideration of the breast implant litigation. Similarly, if the class representatives or objectors had successfully appealed (as Juris contends that they could have and should have), then the senior creditors certainly would have withdrawn the financing and forced Inamed into bankruptcy. (Doc. #290-6, Resp. of Settlement Class Counsel at 4, 9). That is, a successful appeal necessarily would have rendered mandatory treatment, as Juris argues, inapplicable, yet the undisputed evidence, at the time, established that the senior creditors were wholly unwilling to finance settlement on any other terms. 41 Thus, compelling reasons existed for not appealing Order 47A, and they were arguably aimed at ensuring the limited fund's existence for the class's benefit. Third, according to Juris, the class representatives and objectors were inadequate because they did not revive the litigation when Inamed reported, in early 2000, its 24% increase in sales for fiscal year 1999. Juris contends that class members inadequately reflected her interests because, once it became clear that Inamed was rebounding post-settlement, someone should have filed a 41 Hornsby, Class Counsel for future claimants, expressed this exact concern: "I didn't file a notice of appeal obviously because I just didn't see where – it would have made the only arrangement that could have gotten claimants anything collapse because it would have delayed it, the investors would have pulled out and gone on, and I just didn't see the benefit of, you know, any appeal." (Doc. #287, 12/14/09 Hearing Transcript 93:2-8). 89 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 90 of 114 motion to set aside the judgment on the grounds that Inamed's finances had not been inadequate. For the reasons outlined above, the court concludes that plausible, non-fraudulent reasons existed for Inamed's post-settlement turnaround. See discussion supra Part III.B. A class representative's failure to pursue an otherwise insubstantial question of fact or law does not amount to inadequate representation. Fourth, because her injuries had not manifested at the time of settlement, Juris claims that the class representatives were inadequate. This contention is flawed on two levels. The class representatives in this case reflected the varying stages of illness associated with breast implants. (Doc. #59, Order 47A ¶ 3(d . At least one of the named representatives had Inamed-brand breast implants but had not yet manifested any injury as of the time of certification. (Doc. #59, Order 47A ¶ 3(d . Moreover, there was additional protection for class members with potential future injury. A member of Class Counsel, Ernest Hornsby, a very highly regarded attorney, represented claimants without present harm. (Doc. #269-5, Decl. of Class Counsel ¶ 6). In addition to these formal assurances of representation, future claimants filed objections to the settlement. Objectors, who had experienced severe injury, filed challenges to the proposed settlement, and some appeared at the Fairness Hearing. The implication is clear: whether considering Juris's condition at certification or at present, class members, who reflected her unique concerns, objected to the settlement on precisely the same grounds as Juris now raises. Merely because Juris had not been physically present or present through a filed objection does not translate to a settlement reached without adequate representation of her. Her challenges to the settlement asserted now were presented by other, similarly situated class members similarly situated and were considered and rejected by Judge Pointer. 90 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 91 of 114 Fifth, and similar to the above objection, Juris claims inadequacy because, at the time of settlement, she did not know that Inamed had manufactured her implants. Although it does not appear that a named representative was at the time unaware of her breast implant manufacturer,42 four objectors – Lois Clay, Dolores Doll, Alice Lonergan, and Sherry Van Pelt – raised precisely this concern: "Four of the 62 respondents have objected on the basis that they have thus far been unable to identify the manufacturer of their implants and hence may be unable to provide the necessary information for eligibility within the stated deadline." (Doc. #70, Order 47B at 3). Juris's concern was raised by objectors to Judge Pointer and he concluded that, "given potential barriers to claims arising from statutes of limitations and the implicit prospect of deferring division until they have (at some undetermined point in the future) been able (if ever) to obtain such information, their objection does not call for any change in the plan." (Doc. #70, Order 47B at 3). Finally, Juris contends that Order 47A, which did not formally sub-class among present and future injury claimants, violated the Supreme Court's instructions in Amchem and Ortiz regarding subclasses. In Amchem Products v. Windsor, the Supreme Court, affirming the Third Circuit's decision to decertify a class action under Rule 23(b)(3) purporting to achieve global settlement of current and future asbestos-related claims, concluded that "named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses. In significant respects, the interests of those within the single class are not aligned. More saliently, for the currently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future." 42 Inamed. Of course, the fact of the matter is that such a person would not have been a named representative against 91 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 92 of 114 521 U.S. 591, 626 (1997) (citing Gen. Tel. Co. of Nw., Inc. v. EEOC, 446 U.S. 318, 331 (1980 . The Court, refining this analysis in Ortiz, concluded that "a class divided between holders of present and future claims (some of the latter involving no physical injury and to claimants not yet born) requires division into homogenous subclasses under Rule 23(c)(4)(B), with separate representation to eliminate conflicting interests of counsel." 527 U.S. at 856 (citing Amchem, 521 U.S. at 627) (emphasis added). In other words, the rule in Amchem, and as clarified in Ortiz, is not a general class management rule to be blindly applied without reference to the class's dynamics, identity, and nature of relief; rather, the mandate to sub-class is relevant only as a safety-valve against class counsel subordinating the interests of some class members to benefit others, including non-class members as in Ortiz. See id. at 864-65 ("Those separate settlements, together with other exclusions from the claimant class, precluded adequate structural protection by subclass treatment, which was not even afforded to the conflicting elements within the class as certified."). Placed in context, therefore, Juris's argument – that a failure to formally sub-class renders the representation inadequate – is simply wide of the mark. As a practical matter, sub-classing ensures that divergent interests are not pitted against one another to the benefit of one at the expense of the other. In this case, however, Judge Pointer protected against antagonistic alignment within the class. Judge Pointer designated Sandy Altrichter, Janell Crumley Black, Darlene Davis, Lois Hamilton, Rose Marie Hodges, and Gloria Jones as class representatives. (Doc. #10, Order 47 ¶ 2(c . These women reflected the representative interests of the class members. Among them, there were "class representatives with no manifested injury, . . . class representatives with . . . minor to moderate injuries, and . . . one class representative . . . who [was] disabled, totally disabled, very seriously injured." (Doc. #269-6, 1/11/99 Hearing Transcript 59:4-12). Lois Hamilton, "who 92 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 93 of 114 received Cox-Uphoff implants in 1986, [had] been diagnosed with systemic lupus and, under the terms of the original global settlement, submitted a claim for total disability." (Doc. #290-6, Resp. of Settlement Class Counsel at 11). Relatedly, Judge Pointer appointed Ralph Knowles, Leslie Bryan, Dianna Pendleton, Elizabeth Cabraser, and Ernest Hornsby as Class Counsel. (Doc. #10, Order 47 ¶ 2(c . Hornsby, "a plaintiff's attorney with extensive Breast Implant trial experience[,] . . . represent[ed] Inamed implant recipients with potential future claims . . . ." (Doc. #269-5, Decl. of Class Counsel ¶ 6). Accordingly, the class's court-appointed representatives and counsel served as the functional equivalents of formally sub-classed groups, which ensured that the class representatives, as well as their counsel, participated directly in negotiations and litigation. The assurance of fairness, meaningful participation, and adequate representation is the driving force behind Amchem and Ortiz's sub-classing analysis. See Ortiz, 527 U.S. at 855-56 ("[A]t the least such a settlement [covering current and future claimants] must seek equity by providing for procedures to resolve the difficult issues of treating such differently situated claimants with fairness as among themselves."). Moreover, Judge Pointer explicitly rejected the need to sub-class given the unique dynamics associated with this litigation. According to Judge Pointer at the Fairness Hearing, because Defendants suffered from severe financial stresses, the only issue was whether "it's better to have 31.5 million rather than to have zero" – at least as to the first stage of class certification – which rendered the sub-classing issue unnecessary, as divergent interests overwhelmingly coincided on this single point. (Doc. #269-6, 1/11/99 Hearing Transcript 46:22-48:12). Although he contemplated that formal sub-classing may be appropriate at consideration of proposed distribution schemes, Judge Pointer, at that later point, observed that "[c]lass counsel – some of whom represent clients with 93 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 94 of 114 existing medical problems and others of whom represent clients without presently documented problems – have, with the court, struggled with this problem and have reluctantly come to the conclusion that a pro rata division remains the better – and indeed only workable – solution under the facts of this case." (Doc. #70, Order 47B at 5). Judge Pointer reached this conclusion despite numerous filed objections that "simply and directly . . . asserted that more of the settlement fund should be distributed to those . . . who allegedly have had (or perhaps in the future may have) medical problems, expenses, suffering, etc." (Doc. #70, Order 47B at 5). In other words, Judge Pointer received objections from then-currently injured claimants who requested that a higher percentage of the fund should be devoted to them, and he likewise received objections from future injury claimants who requested the exact opposite. These objections, which mirror the concerns that subdivided "currents" and "futures" groups likely would have produced respectively, reached the court notwithstanding the absence of formal sub-classes.43 And according to Judge Pointer, differential payouts would have been preferable "[i]f the amount of the funds available for distribution were substantially greater and/or the potential distributees not so numerous . . . ." (Doc. #70, Order 47B at 5). Nothing indicates that Judge Pointer would have treated these concerns differently if he had received them from formally designated sub- class representatives rather than somewhat differently situated at-large class objectors. Thus, although not addressing by name Amchem and Ortiz, Judge Pointer's considerations mirror the considerations as noted above. In Amchem and Ortiz, the Supreme Court did not fault the district courts for their failure to sub-class per se; rather, the certification errors arose because significant 43 If there were differentiations, those who could at the time show significant injury would have benefitted more than those who had not yet experienced any effects. 94 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 95 of 114 conflicts permeated the class settlements and distributions, and the lack of sub-classing exacerbated those concerns. Here, on the other hand, objectors insisted on differential treatment based on status of injury (i.e., current or future), but Judge Pointer rejected subdivision because, according to his finding, the class settlement was not fatally infected with conflicts like those present in Amchem or Ortiz. Instead, the class's interests were unified insofar as distribution of a $31.5 million fund was superior to not receiving anything, and given the financial reality, this singular interest was compelling. 44 Once he considered the distribution, he realized that, given the size of the class compared to the fund, graduated treatment among the variously injured claimants would have been, at least, inequitable and, at most, inconsequential. Accordingly, at the Fairness Hearing and in Order 47B, Judge Pointer resolved the issues underlying the Supreme Court's instruction to sub-class, and because of his conclusions, sub-classing would have been superfluous. 45 In short, class representatives, as well as the various objectors, raised the precise concerns that Juris inaccurately argues were overlooked. Her interests were represented. Juris's only arguments against the validity of the Inamed Class Settlement were raised, briefed, and overruled in 1999. Although due process certainly requires adequacy of representation, it requires neither an opportunity to assert specific challenges personally nor the court to correctly 44 A higher percentage of zero is not as valuable as a pro-rata share of $31.5 million. 45 Similarly, in In re Diet Drugs Products Liability Litigation, absent class members collaterally attacked the settlement by relying on Amchem and arguing that the district court erred by not subdividing the class into current injury and future injury claimants. 431 F.3d 141, 147 (3d Cir. 2005). In that case, the district court "specifically found that there is no 'futures' problem with [the] Settlement Agreement because, unlike Amchem, where asbestos class members could not know of their exposure or disease, potential class members are aware of their exposure to diet drugs and any injuries from that exposure are detectable in medical tests – the injuries will not remain latent for 30 to 40 years." Id. The Third Circuit concluded that, because the absent class members' concerns had been raised and decided by the district court, they had been adequately represented. Id. at 148. 95 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 96 of 114 decide the objection. 46 When interests among claimants are sufficiently aligned, as they were here, the representatives, and even objectors, stand as proxies for the absentees. As the Eastern District of Pennsylvania persuasively explained in the context of collateral attacks, "the fact that specific individuals are not the same class members who earlier raised objections does not mean second-in- time class members must be accorded their own opportunity to litigate an issue personally. 'If this argument were to be accepted, each class member would be able to relitigate each issue, rendering the class action mechanism pointless.'" In re Diet Drugs Prods. Liab. Litig., 434 F. Supp. 2d 323, 335 (E.D. Pa. 2006) (quoting In re Diet Drugs Prods. Liab. Litig., 431 F.3d 141, 147 (3d Cir. 2005 . Here, the class representatives, who reflected the diverse constituency of the Inamed Class, and various objectors raised the exact concerns that Juris now asserts. Judge Pointer overruled these challenges in 1999; accordingly, Juris's interests were adequately represented during the class certification and settlement approval process. Under Gonzales, a post-judgment assessment of adequacy of representation is limited to a single inquiry: "whether the representative, through qualified counsel, vigorously and tenaciously protected the interests of the class." 474 F.2d at 75. As Juris's counsel conceded, however, there is absolutely nothing in the record to suggest that Hornsby, acting as Class Counsel on behalf of future claimants, suffered from a conflict of interest. (Doc. #287, 12/14/09 Hearing Transcript 27:10-14). Similarly, nothing in the record suggests that the Class Representatives, who served as stand-ins for future claimants and those seriously injured, shirked their representational roles. Indeed, as explained above, all of the concerns that she cites now were actually raised over ten years ago and 46 To be clear, the court alternatively concludes Judge Pointer correctly ruled on each of the objections presented to him. 96 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 97 of 114 considered by Judge Pointer prior to entering Orders 47A and 47B. Thus, to the extent that she claims inadequacy of representation as a result of omissions, her contention is mistaken. Accordingly, on February 2, 1999 and after having independently reviewed the financial disclosures and various submissions, Judge Pointer was satisfied that Class Counsel, on behalf of the Inamed Settlement Class, brokered the best deal possible under all the circumstances. Contrary to Juris's suggestion, the unforeseeable developments post-judgment, which undoubtedly arose as a direct result of global resolution, do not render Class Counsel and Class Representatives constitutionally inadequate. Although other courts have concluded that adequacy of representation is a sufficient test for assessing due process in the Rule 23(b)(1)(B) context, the Eleventh Circuit additionally requires notice prior to certification. In In re Temple, 851 F.2d 1269, 1270-71 (11th Cir. 1988), 47 the district court certified a Rule 23(b)(1)(B) mandatory class consisting of current and future claimants who asserted injuries related to asbestos exposure. Id. at 1270-71. The Eleventh Circuit reversed the certification order because, inter alia, the district court "did not notify any of the putative class members." Id. at 1271-72 (emphasis added). In particular, the court held that "[u]nlike class members in cases certified under Rule 23(b)(3) who may opt out of the action and have no need for prior notice of efforts to obtain class certification, members of a mandatory class need to be provided with notice to contest the facts underlying a certification they may strenuously oppose." Id. at 1272. 47 At the time the Eleventh Circuit decided this case, Rule 23(c)(2) required pre-certification notices only when Rule 23(b)(3) class actions were being considered for certification. FED. R. CIV. P. 23(c)(2) (1987). In 2003, the Advisory Committee revised Rule 23, and currently, according to Rule 23(c)(2)(A), the district court "may direct appropriate notice to the class" if a Rule 23(b)(1)(B) class action is being considered for certification purposes. 97 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 98 of 114 The Eleventh Circuit, therefore, constitutionalized pre-certification class notice. Id. ("The court's failure to notify petitioners of the certification hearing violated due process."). In this case, it is uncontested that Juris did not receive actual notice of the certification hearing. Although Temple identified a due process violation when the district court fails to direct any notice, the decision is silent regarding whether actual notice to each and every absent class member is constitutionally required. For reasons stated in more detail below, the court finds that actual notice is not required. And to be sure, the court is certainly comfortable with that outcome in this case. That is because the attendant circumstances giving rise to the Temple decision blunt the concern here. In Temple, the Eleventh Circuit was more concerned with the "non-adversarial nature of the proceedings below" that "led to the premature and speculative finding that a limited fund existed." Temple, 851 F.2d at 1272. The non-adversarial proceedings stemmed from a failure to notify interested parties, including class members, who pursued appellate review post-certification. Id. Provided that notice of pending certification reaches a critical mass of putative class members such that the certification proceedings are approached with the essential adversarial nature, the process guaranteed to absent class members is ensured. In other words, Temple, properly read, links the level of notice to the adequacy of represented interests. The Northern District of Alabama's decision in Battle v. Liberty National Life Insurance Co., 770 F. Supp. 1499 (N.D. Ala. 1991), aff'd, 974 F.2d 1279 (11th Cir. 1992), 48 makes this connection apparent. The Battle litigation concerned a final settlement of a mandatory, non-opt out class action certified pursuant to Rule 23(b)(2). See Battle, 877 F.2d at 879-80. After the settlement, dissatisfied 48 According to the Eleventh Circuit, "W e are not presented with any reversible error on the part of the district judge." Battle, 974 F.2d at 1280. 98 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 99 of 114 class members initiated a collateral attack in the Northern District of Alabama once their state court proceedings were enjoined. Id. In their collateral attack, they alleged that the class settlement was infirm because they had not received personal notice. Battle, 770 F. Supp. at 1508. The court rejected this contention and held, in the context of Rule 23(b)(2) class settlements, 49 that the class's degree of cohesiveness governs whether, and to what extent, individualized notice is required: Because such notice was appropriately designed not to afford absent members the chance to exclude themselves from the class, but rather to inform them of the pendency of the action and permit them to challenge the representation by the named plaintiffs and class counsel or to otherwise intervene, the fact that paid-up policyholders did not receive notice did not frustrate this purpose. Because such policyholders shared the same interests as those who did receive notice, the latter could adequately speak for them vis-a-vis the named plaintiffs and class counsel. Id. at 1520 (citations omitted). Thus, when the class is composed of plaintiffs with singular interests, or at least when class representatives and objectors to the class settlement reflect the interests of parties who did not receive notice, then the notice's failure to reach all class members does not violate due process. Stated plainly, due process does not require that an absent class member should have an opportunity to assert an objection that is otherwise raised during the certification process. But as discussed above in the context of adequate representation, Juris's interests were represented and reflected during certification. Accordingly, merely because she personally was not notified of the pending certification and resulting settlement, and did not have the opportunity to personally 49 Although Battle proceeded as a Rule 23(b)(2) class action unlike the class action here, the difference is without a distinction for purposes of notice. According to Temple, a district court is required, in a mandatory class action, to direct notice pre-certification to absentee class members. Temple, 851 F.2d at 1272 ("Unlike class members in cases certified under Rule 23(b)(3) who may opt out of the action and have no need for prior notice of efforts to obtain class certification, members of a mandatory class need to be provided with notice to contest the facts underlying a certification they may strenuously oppose.") (emphasis added). Accordingly, the Northern District of Alabama's decision regarding whether actual notice is required for (b)(2) class actions is highly persuasive here, as both Rule 23(b)(1)(A) and Rule 23(b)(2) class actions are mandatory. 99 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 100 of 114 assert objections that were raised and pressed by others, does not translate to a failure of due process. In fact, as reflected in the chronology of this case and the objections raised to the settlement, the certification and settlement process were approached in a sufficiently adversarial manner. To the extent that Temple demands notice to ensure adequate scrutiny of a settlement proposal, notice in this case satisfied that requirement. Juris additionally contends that "meaningful notice for 'future' claimants' . . . was, in fact, impossible." (Doc. #293 at 28). Her argument relies on the Supreme Court's Amchem decision, in which the Court held, in the context of asbestos-related injuries, that "[m]any persons in the exposure-only category . . . may not even know of their exposure, or realize the extent of the harm they may incur. Even if they fully appreciate the significance of class notice, those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to stay in or opt out." Amchem, 521 U.S. at 628. Nevertheless, in 1998, objectors raised this very concern asserted by Juris, and Inamed offered the following response: The Sheller objection includes an assertion that notice to claimants not present ill "cannot meet the requirements of Rule 23 and due process." This argument undoubtedly derives from Amchem Prods. v. Windsor, 117 S. Ct. 2231 (1997), in which the Supreme Court questioned, without deciding, whether adequate notice could ever be given to "exposure-only" asbestos victims in the context of an opt-out class certified under Rule 23(b)(3). The situation here, however, is not at all analogous. Unlike "exposure-only" asbestos victims who may not know of their exposure to that product until they contract asbestos-related diseases, all breast implant recipients, whether or not currently ill, know that they have had implants and thus are capable of being notified by notices addressed to them. In addition, the Supreme Court's concern in Amchem that "those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to opt out," 117 S. Ct. at 2252, is not applicable to non-opt-out classes. 100 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 101 of 114 (Doc. #290-5, Resp. of Inamed at 8). Juris does not contend (and has never contended) that Judge Pointer incorrectly rejected this challenge in 1999, and this court concludes that Amchem is sufficiently distinguishable from the present case based on Inamed's initial response. Finally, the notice issued, under the circumstances, was the best practicable. Although Juris did not receive actual notice of the Inamed Class Settlement, contrary to her suggestion, due process does not demand actual notice. "Due process requires that class notice must be 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Adams v. S. Farm Bureau Life Ins. Co., 417 F. Supp. 2d 1373, 1380 (M.D. Ga. 2006) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950 . "The analysis for purposes of due process is on the notice plan itself, and actual receipt of notice by each individual class member is not required." Id. at 1380 n.6 (citing Dusenbery v. United States, 534 U.S. 161, 171 (2002 ; see also In re Prudential Ins. Co. of Am. Sales Practices Litig., 177 F.R.D. 216, 231 (D.N.J. 1997) ("Courts have consistently recognized that due process does not require that every class member receive actual notice so long as the court reasonably selected a means likely to apprise interested parties.") (collecting cases); 4 NEWBERG ON CLASS ACTIONS § 11:53 (4th ed. 2009) ("[In the settlement context], due process does not require actual notice, but rather a good faith effort to provide actual notice. Courts have consistently recognized that due process does not require that every class member receive actual notice so long as the court reasonably selected a means likely to apprize interested parties. Similarly, Rule 23 does not require the parties to exhaust every conceivable method of identifying the individual class members."). The critical inquiry is whether, under the circumstances, the method adopted and ordered by Judge Pointer to apprise class members of the settlement and certification was reasonable. 101 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 102 of 114 First, Juris does not argue that the content of the notice was defective. Indeed, the court has reviewed the notice, and it certainly complies with established Eleventh Circuit caselaw. See, e.g., Twigg v. Sears, Roebuck & Co., 153 F.3d 1222, 1227 (11th Cir. 1998) ("Surely the best notice practicable under the circumstances cannot stop with . . . generalities. It must also contain an adequate description of the proceedings written in objective, neutral terms, that, insofar as possible, may be understood by the average absentee class member . . . .") (citation omitted). Second, and more importantly, Judge Pointer's approved method of distributing notice satisfied due process requirements. The court has summarized the notice efforts in this case. See factual and procedural history supra Part I.B. But to be clear, Judge Pointer directed individual notices to be mailed to 250,000 women who had registered with the Claims Office and 28,000 attorneys who represented breast implant litigants. (Doc. #269-6, 1/11/99 Hearing Transcript 4:8-15). Additionally, notice of the proposed settlement and certification/fairness hearing was published in People Magazine, USA Today, and Modern Healthcare Magazine as well as on Modern Healthcare Magazine's website and the court-supervised website. (Doc. #269-13, Klausner Aff. ¶¶ 3-4; Doc. #269-6, 1/11/99 Hearing Transcript 5:7-10). As the Southern District of New York explained, "[t]his combination of mailed notice to all class members who can be identified by reasonable effort and published notice to all others is the long-accepted norm in large class actions . . . ." Gordon v. Hunt, 117 F.R.D. 58, 63 (S.D.N.Y. 1996) (citing Weinberger v. Kendrick, 698 F.2d 61, 71 (2d Cir. 1982 . In response, Juris suggests that notice could have been more targeted through use of medical warranty cards: When breast implants are sold, they are a medical device, and they are supposed to be sold with a registration card. The doctor fills them out. The implants are actually sold to the physician. When the 102 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 103 of 114 implant is implanted, there's a card filled out at the time, and it should be kept with the doctor and a copy returned to the manufacturer. (Doc. #287, 12/14/09 Hearing Transcript 49:10-15). First, Juris has not produced any evidence substantiating her representation that Inamed had such records on file at the time of certification. Second, the simple availability of alternative notice options does not render the notice plan employed here procedurally deficient, and Juris has not identified any caselaw to support such a proposition. Third, her contention is subsumed by the court's broader conclusions that: (1) Rule 23(b)(1)(B) class actions require notice sufficient to create adversarial review of settlement and, by implication; (2) actual notice to all class members is not required. Because proper notice occurred and sufficiently adversarial review of the Inamed Settlement was undertaken, Juris's lack of individual notice and, correspondingly, the unsubstantiated claim that more effective notice was available are ultimately immaterial. To summarize, Shutts does not apply to properly certified Rule 23(b)(1)(B) class actions; rather, only two procedural safeguards are owed to absentees: (1) adequate representation and, closely related, (2) notice sufficient to provoke representative and adversarial scrutiny of the proposed settlement. Assuming the rigors of Rule 23(b)(1)(B) are satisfied and due process is observed, the court has authority to enter a final judgment that binds absentees who are otherwise beyond the court's jurisdiction. Here, because (1) Judge Pointer properly certified the Inamed Class Settlement, (2) Juris was adequately represented by class representatives who were future claimants and by attorneys who represented future claimants, and (3) sufficient notice was issued, this court had and has personal jurisdiction over Juris insofar as Orders 47A and 47B are concerned. 103 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 104 of 114 D. Order 47A's Anti-Suit Injunction50 The All Writs Act authorizes a federal court to "issue all writs necessary or appropriate in aid of [its] respective jurisdiction[] and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). As the former Fifth Circuit explained, the "Act is necessary because federal courts, being courts of limited jurisdiction, would not otherwise possess the tools necessary to implement their jurisdictional grants." ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1359 (5th Cir. 1978). In other words, the "All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985). On its own terms, the All Writs Act is a broad repository of federal power; however, its scope is substantially curtailed by the corresponding Anti-Injunction Act, which prohibits a federal court from enjoining state court proceedings absent an exception to the contrary: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283. As the Eleventh Circuit has said, "the All Writs Act and the Anti- Injunction Act [are] two statutes that work in conjunction to enable a federal court to exercise its 50 At best, Juris's argument that Order 47A's anti-suit injunction is inapplicable as to her fits Rule 60(b)'s subdivision four, which authorizes relief when "the judgment is void." FED. R. CIV. P. 60(b)(4). An injunction is a "judgment" for purposes of Rule 60(b)(4). See FED. R. CIV. P. 54(a) ("'Judgement' as used in these rules includes a decree and any order from which an appeal lies."). Juris is correct that the enforcement of an injunction, which proceeds from a judgment rendered without due process, may be collaterally attacked on due process grounds. See Stephenson, 273 F.3d at 257 ("The injunction was part and parcel of the judgment that plaintiffs contend failed to afford them adequate representation. If plaintiffs' inadequate representation allegations prevail, as we so conclude, the judgment, which includes the injunction on which defendants rely, is not binding as to these plaintiffs."). As the court has already concluded that (1) Juris's due process rights have not been violated and (2) exercising personal jurisdiction over her is proper, the only remaining issue is whether the anti-suit injunction satisfies the exceptions contained within the Anti-Suit Injunction Act. The court addresses that issue within this section. 104 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 105 of 114 jurisdiction and enforce its judgment and, at the same time, limit the court's ability to interfere with state court proceedings." Burr & Forman v. Blair, 470 F.3d 1019, 1026 (11th Cir. 2006). Regarding the Anti-Injunction Act, "[t]he precise origins of the legislation are shrouded in obscurity, but the consistent understanding has been that its basic purpose is to prevent needless friction between state and federal courts." Mitchum v. Foster, 407 U.S. 225, 232 (1972) (citation and internal quotation marks omitted). In any event, its three embedded exceptions "are narrow and are not to be enlarged by loose statutory construction." Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988) (citation, internal quotation marks, and alteration omitted). "Although federal courts are instructed to tread carefully when considering whether to stay state court proceedings, as such a decision directly implicates the very delicate balance struck between the federal and state judicial systems, the decision is ultimately left to the district court's sound discretion." Bayshore Ford Trucks Sales, Inc., 471 F.3d at 1250 (citation and internal quotation marks omitted). Given this discretion, "a district court in a given case may go either way and not be reversed." G.M. Brod & Co. v. Adler, 845 F.2d 899, 900 (11th Cir. 1988) (quoting First Ala. Bank of Montgomery, N.A. v. Parsons Steel, Inc., 825 F.2d 1475, 1486 (11th Cir. 1987 . Despite the court's discretion, "[a]ny doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state court to proceed in an orderly fashion to finally determine the controversy." Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng'rs, 398 U.S. 281, 297 (1970). In this case, on February 1, 1999, Judge Pointer permanently enjoined all class members, including Juris, "from instituting, asserting or prosecuting against Inamed or the Released Parties, in any pending or future action in any federal or state court, any Settled Claim that the member had, has, or may have in the future." (Doc. #59, Order 47A ¶ 7) (emphasis added). Now, Juris contends 105 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 106 of 114 that the court's anti-suit injunction violates the general prohibition contained in the Anti-Injunction Act. Specifically, Juris asserts that the anti-suit injunction did not and does not satisfy the Anti- Injunction Act's "in aid of jurisdiction" or "protect or effectuate its judgments" exception. 51 The court considers each exception in turn. 1. In Aid of Jurisdiction52 In Kline v. Burke Construction Co., a case in which a federal district court enjoined a duplicative state court proceeding that involved a breach of contract, the Supreme Court distinguished between injunctions in aid of in personam jurisdiction and injunctions in aid of in rem jurisdiction: 51 Defendants do not, nor could they credibly, contend that Congress has authorized this sort of injunction. Accordingly, the court does not address the Anti-Injunction Act's congressional approval exception. 52 Juris repeatedly construes the exchange between the court and her counsel at the December 2009 hearing as foreclosing the applicability of this exception. According to Juris, "[t]his court acknowledged that the second exception to the Anti-Injunction Act, 'in aid of its jurisdiction,' is not applicable to the present case." (Doc. #288 at 35 n.9). At the hearing, however, the court did not rule out the possibility that the "in aid of jurisdiction" exception applies to this case: MS. LEBOW : THE COURT: THE COURT: W ell, the exception that would come into play – and you are right; generally the Act is an absolute prohibition against enjoining state court proceedings unless one of three specifically- defined exceptions applies. Right. The one that's in play here is the court's jurisdiction to – or the court's ability to effectuate its judgment. Correct. . . . . But the key question here is whether this proceeding in California court would interfere with the effectuation of the judgment here. Fair? Absolutely. MS. LEBOW : THE COURT: MS. LEBOW : (Doc. #287, 12/14/09 Hearing Transcript 37:1-11). This exchange does not constitute a "ruling," as Juris suggests. Rather, the court, attempting to understand the scope of Juris's argument and holding one variable constant, simply questioned counsel regarding whether (and to what extent) the "protect or effectuate its judgments" exception applies to this case. Although not captured in the transcription, the court's second statement was intended to be interrogatory rather than declaratory. 106 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 107 of 114 [W]here a federal court has first acquired jurisdiction of the subject-matter of a cause, it may enjoin the parties from proceeding in a state court of concurrent jurisdiction where the effect of the action would be to defeat or impair the jurisdiction of the federal court. Where the action is in rem the effect is to draw to the federal court the possession or control, actual or potential, of the res, and the exercise by the state court of jurisdiction over the same res necessarily impairs, and may defeat, the jurisdiction of the federal court already attached. The converse of the rule is equally true, that where the jurisdiction of the state court has first attached, the federal court is precluded from exercises its jurisdiction over the same res to defeat or impair the state court's jurisdiction. . . . . But a controversy is not a thing, and a controversy over a mere question of personal liability does not involve the possession or control of a thing, and an action brought to enforce such a liability does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed on its own way and in its own time, without reference to the proceedings in the other court. . . . The rule, therefore, has become generally established that where the action first brought is in personam and seeks only a personal judgment, another action for the same cause in another jurisdiction is not precluded. 260 U.S. 226, 230-31 (1922). As a general matter, therefore, "concurrent in personam actions between the same parties and involving the same subject matter may proceed simultaneously in the courts of the same forum or two or more forums. Concurrent in personam jurisdiction does not satisfy the 'necessary in aid of jurisdiction' exception to the Anti-Injunction Act." 17A MOORE'S FEDERAL PRACTICE – CIVIL § 121.07 (2010). Courts have rigidly enforced this distinction and, correspondingly, rejected litigants' attempts at recasting clearly in personam actions hoping to trigger the "in aid of jurisdiction" exception. See, e.g., Phillips v. Chas. Schreiner Bank, 894 F.2d 127, 132 (5th Cir. 1990); Universal Bus. Computing Co. v. Comprehensive Accounting Corp., 539 F. Supp. 1142, 1144-45 (N.D. Ill. 1982). Nevertheless, the Eleventh Circuit has recognized a narrow exception to this general demarcation. In Battle v. 107 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 108 of 114 Liberty National Life Insurance Co., the Eleventh Circuit, affirming the district court's anti-suit injunction against parallel state court proceedings post-final judgment, observed that "it makes sense to consider this case, involving years of litigation and mountains of paperwork, as similar to a res to be administered." 877 F.2d 877, 882 (11th Cir. 1989). In fact, according to the Eleventh Circuit, "[t]his lengthy, complicated litigation is the 'virtual equivalent of a res.' Id. (quoting Battle v. Liberty Nat'l Life Ins. Co., 660 F. Supp. 1449, 1457 (N.D. Ala. 1987 ; see also In re Baldwin-United Corp., 770 F.2d 328, 337 (2d Cir. 1985) ("In effect, unlike the situation in the Kline v. Burke Construction Co. line of cases, the district court had before it a class action proceeding so far advanced that it was the virtual equivalent of a res over which the district judge required full control."). The court, therefore, concluded that supervising a complex class action is sufficiently analogous to administering a res for purposes of the Anti-Injunction Act's "in aid of jurisdiction" exception to overcome the jurisdictional divide acknowledged in Kline.53 After Battle, the Eleventh Circuit decided Wesch v. Folsom, 6 F.3d 1465 (11th Cir. 1993). Wesch considered the propriety of a federal district court's anti-suit injunction against a putative state court class action, which was attempting to oust a federally sanctioned congressional redistricting plan. Id. at 1468-69. The Eleventh Circuit affirmed the district court's injunction under, in part, the framework advanced in Battle. Id. at 1470-71. The court, applying the "virtual equivalent of a res to be administered" standard, concluded that the Anti-Injunction Act's "in aid of jurisdiction" exception applied because the district court "in this case invested a great deal of time and other resources in the arduous task of reapportioning Alabama's congressional districts." Id. 53 In the alternative, the Battle fiction (that a complex class action is sufficiently comparable to a res) is arguably unnecessary here. This court supervised and continues to supervise the equitable division of a limited fund, which is not analogous to a res – it is a res. 108 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 109 of 114 "In these cases, the courts have reasoned that some complex federal cases – particularly those involving multidistrict litigation, substantial pretrial litigation, extended settlement negotiations, or actual settlements – are analogous to in rem actions because the lawsuits themselves are 'the virtual equivalent of a res to be administered.'" Lawrence v. Household Bank (SB), N.A., 343 F. Supp. 2d 1094, 1100 (M.D. Ala. 2004) (quoting Wesch, 6 F.3d at 1470); see also Burr & Forman, 470 F.3d at 1032 ("For an injunction properly to issue, the matter in controversy in the federal court proceeding must be 'the virtual equivalent' of a controversy over disputed res in an in rem proceeding and the state court proceeding must constitute a threat to the federal court's resolution of that controversy."); 17A MOORE'S FEDERAL PRACTICE – CIVIL § 121.07 (2010) ("Federal courts, especially in class actions and mass tort litigation, have suggested that the action itself is a kind of res, requiring federal injunctive power over state proceedings in aid of the federal court's jurisdiction."). In short, a complicated class action, over which the court retains continuing and exclusive enforcement jurisdiction, is sufficiently analogous to a res such that the Anti-Injunction Act's "in aid of jurisdiction" exception, traditionally applicable only to in rem proceedings, validates an anti-suit injunction. This case, which involved resolution of over 40,000 breast implant claims and is paradigmatically complex, presumptively satisfies this standard. There is, perhaps, a temptation to conclude that this framework is applicable only when the class litigation has not yet concluded. In Battle, however, the anti-suit injunction issued after entry of the final judgment. Battle, 877 F.2d at 880; see also id. at 881 ("Moreover, it is not true, as the state plaintiffs argue, that the 'necessary in aid of' exception is only available prior to the entry of judgment in federal court."). And like the district court in Battle, this court has continued to exercise its enforcement jurisdiction to interpret and resolve disputes concerning the Settlement Agreement 109 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 110 of 114 and, similarly, supervised the Escrow Agent charged with administering the class settlement. 54 For example, on March 14, 2003, Inamed filed a motion with this court requesting clarification of certain settlement terms involving the class's access to ongoing medical studies. (Doc. #122). Permitting the California State Court litigation to proceed would undercut this court's "flexible approach in resolving the various claims," Battle, 877 F.2d at 881, an approach that is required to ensure proper enforcement of the settlement entered as final judgment. 55 The court finds that the settlement fund approved by Judge Pointer is similar to a res to be administered in this case. Accordingly, the Anti- Injunction Act's "in aid of jurisdiction" exception applies here, and it is appropriate to enjoin Juris from proceeding with her state court suit. 2. Protect or Effectuate Judgments Additionally, the Anti-Injunction Act authorizes a federal court to issue an injunction that "protect[s] or effectuate[s] its judgments." 28 U.S.C. § 2283. This exception, generally referred to 54 The Claims Office, as late as December 9, 2009, received claims under the Inamed Class Settlement. (Doc. #290-14). As of December 14, 2009, however, the Claims Office acknowledged that only one claim remains unpaid under the Inamed Class Settlement: Juris's claim. (Doc. #290-14). Sufficient reserves exist, and assuming that she qualifies, the Claims Office is prepared to honor her claim despite the fact that the deadline for filing claims has technically expired. (Doc. #290-14). And as recently as April 28, 2010, the court has continued to exercise its supervisory authority over the Claims Office. (Doc. #302). 55 Juris's only attempt at distinguishing Battle, a case squarely on point, from this case is unavailing. Juris argues that in Battle, unlike here, all of the class members were Alabama residents, which authorized the exercise of in personam jurisdiction over absentees, such as the litigants who proceeded on a collateral attack in state court: [Battle] involved Alabama funeral home operators and Alabama policyholders who had purchased insurance policies sold in Alabama with respect to services to be provided by an Alabama company. In the instant case, this court simply does not have personal jurisdiction over the Plaintiff nor is there any basis for federal jurisdiction over her state law product liability claims against a California defendant and its wholly owned California subsidiary. (Doc. #265 at 10). This point of distinction is flawed because "it is well-established circuit law that '[the Eleventh Circuit is] not bound by a prior decision's sub silentio treatment of a jurisdictional question.'" Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1231 (11th Cir. 2007) (quoting Okongwu v. Reno, 229 F.3d 1327, 1330 (11th Cir. 2000 . In Battle, the Eleventh Circuit never ruled on personal jurisdiction; accordingly, its substantive treatment of anti- suit injunctions is its only holding applicable to this case. As described, Battle's analysis is clearly applicable here. 110 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 111 of 114 as the "relitigation exception," is "appropriate where the state [court] claims would be precluded by the doctrine of res judicata." Burr & Forman, 470 F.3d at 1030 (citing Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1104 (11th Cir. 2004 . "In a sense, the relitigation exception empowers a federal court to be the final arbiter of the res judicata effects of its own judgments because it allows a litigant to seek an injunction from the federal court rather than arguing the res judicata defense in the state court." Id. at 1030 n.30. This exception applies only when a party "make[s] a strong and unequivocal showing of relitigation." Delta Air Lines v. McCoy Rests., 708 F.2d 582, 586 (11th Cir. 1983). "When determining whether claim preclusion is appropriate, federal courts employ the law of the state in which they sit." Burr & Forman, 470 F.3d at 1030 (citing NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990 . Under Alabama law, "the essential elements of res judicata are: (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits." Id. (quoting Wesch, 6 F.3d at 1471). Based on these elements, Juris narrowly challenges application of the relitigation exception. Specifically, she argues that "[a]lthough there is identity of parties, in that the Defendants contend that the Plaintiff was an Inamed class member, and similar product liability claims are at issue, there was no decision on the merits in the Altrichter case, which was certified as a class for settlement purposes only. In addition, the court had no personal jurisdiction over the Plaintiff because she did not receive notice of the proceeding, did not have a full and fair opportunity to be heard or to opt out and she was not adequately represented in the previous action." (Doc. #288 at 38-39). In other words, despite identity of parties and claims, Juris contends that there was not "a prior judgment on the merits" that was "rendered by a court of competent jurisdiction," and 111 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 112 of 114 barring her claims as res judicata would violate her right to due process. The court has addressed Juris's due process and jurisdictional 56 concerns elsewhere. See discussion supra Part III.C. Accordingly, the only remaining issue is whether Judge Pointer, by approving the Inamed Class Settlement, entered a judgment on the merits. 57 As the Middle District of Florida has accurately stated, "[n]o specific words are required for an order to constitute a final judgment as long as it is clear that the order is intended to constitute the final action in the case." AC Direct, Inc. v. Kemp, No. 06-122, 2008 U.S. Dist. LEXIS 22156, at *4 (M.D. Fla. Mar. 18, 2008) (citing United States v. F&M Schaefer Brewing Co., 356 U.S. 227, 232-33 (1958); Blanchard v. Commonwealth Oil Co., 294 F.2d 834, 837 (5th Cir. 1961 . When Judge Pointer entered Order 47A, styled "Order and Final Judgment," after determining that "every Settled Claim of each member of the Inamed Settlement class is conclusively compromised, settled and released," he ordered that all attendant class claims be dismissed with prejudice. (Doc. #59, Order 47A ¶¶ 6, 8). Accordingly, Order 47A actually and functionally served the purpose of entering final judgment as to the class's Settled Claims. Because a judgment on the merits may arise in the context of settlement and Juris has identified no authority reaching the contrary conclusion, the court concludes that Order 47A constituted a judgment sufficient to satisfy the res judicata requirements under the relitigation exception. 56 Juris contends that this court lacks both personal and subject matter jurisdiction to issue and/or enforce an anti- suit injunction. The court already has analyzed her personal jurisdiction argument. For the sake of completeness, the court additionally notes that it possesses subject matter jurisdiction to issue and/or enforce an anti-suit injunction under the relitigation exception. Importantly, "[n]o independent basis of jurisdiction is required for a federal court to entertain an application to enjoin relitigation in state court. This is thought to be within the ancillary jurisdiction of the federal court, and the jurisdiction that the federal court had when it entered its original judgment is enough to support its issuance of an injunction." 17A FED ERAL PRACTICE & PRO CED U RE – CIVIL § 4226 (3d ed. 2010); see also Southwest Airlines Co. v. Texas Int'l Airlines, Inc., 546 F.2d 84, 89-90 (5th Cir. 1977) (concluding that a federal court has ancillary subject matter jurisdiction to issue an anti-suit injunction under the relitigation exception to § 2283). 57 Of note, Juris offers neither argument nor elaboration as to her assertion that Judge Pointer did not enter a "decision on the merits." (Doc. #288 at 38). 112 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 113 of 114 Therefore, the anti-suit injunction is proper under the relitigation exception. If Juris proceeds in her California State Court action, which raises undisputedly Settled Claims under the Inamed Class Settlement, then she will invariably challenge the judgment rendered by this court as to her causes of action. To be certain, in her California State Court action, Juris asserts strict liability, negligence, breach of express warranty, breach of implied warranty, deceit/negligent misrepresentation, and intentional infliction of emotional distress. (Doc. #217-5, Juris Compl. ¶¶ 36-72). All of these causes of action arose "by virtue of the Inamed/McGhan silicone breast implants in her body from the date of insertion until the date of removal and the residual silicone that has been deposited in her body and is currently present . . . ." (Doc. #217-5, Juris Compl. ¶ 29). Settled Claims, according to Order 47A, include, without limitation, "any and all claims of personal injury and/or bodily injury, damage, death, emotional or mental harm" as well as "any and all claims for alleged economic or other injury or loss or for statutory damages under any state statute." (Doc. #59, Order 47A ¶ 2(c . If it proceeds in California State Court, Juris's litigation would necessarily require relitigation of claims dismissed with prejudice by Order 47A. Accordingly, as Battle, Wesch, and Burr & Forman authorize an anti-suit injunction in exactly this situation, Juris's request to dissolve the injunction over Defendants' objection would be improper. Therefore, to the extent that Juris has requested dissolution of Order 47A's anti-suit injunction, her request is due to be denied. IV. CONCLUSION First, Defendants' Motion for Order to Show Cause is due to granted in part and denied in part. To the extent that Defendants have argued for continued enforcement of Order 47A's anti-suit injunction against Juris, their request is due to be granted, but to the extent that they have requested contempt proceedings, their request is due to be denied. They have not made the requisite showings 113 Case 2:92-cv-10000-RDP Document 3834 Filed 05/19/10 Page 114 of 114 at this juncture to warrant formal contempt proceedings. Second, Juris's constructive Rule 60(b) motion is due to be denied. A separate order, consistent with this Memorandum Opinion, will be entered contemporaneously herewith. DONE and ORDERED this 19th day of May, 2010. ___________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE 114
=== Doc.#161 Order ===
Case 2:07-cr-00243-RDP-JEO Document 161 Filed 02/05/13 Page 1 of 1 FILED 2013 Feb-05 PM 03:46 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION UNITED STATES OF AMERICA, v. WILLIAM MERRIWEATHER, JR., Defendant. } } } } } } } Case No.: 2:07-cr-00243-RDP-JEO ORDER Before the court is Defendant’s Motion to Declare the Defendant Currently Incompetent to Stand Trial. (Doc. #65). For the reasons stated in the court’s Findings of Fact and Conclusions of Law, the court finds Defendant William Merriweather Jr. competent to stand trial. Therefore, it is hereby ORDERED, ADJUDGED, and DECREED that Defendant’s Motion to Declare the Defendant Currently Incompetent to Stand Trial is DENIED. By subsequent and separate order this case will be set for a status conference. The Government’s sealed motion (Doc. #159) is MOOT. DONE and ORDERED this 5th day of February, 2013. ___________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE
=== Doc.#160 Findings of Fact and Conclusions of Law ===
Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 1 of 74 FILED 2013 Feb-05 PM 03:42 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION UNITED STATES OF AMERICA, v. WILLIAM MERRIWEATHER, JR., Defendant. } } } } } } } Case No.: 2:07-cr-00243-RDP-JEO FINDINGS OF FACT AND CONCLUSIONS OF LAW Before the court is Defendant’s Motion to Declare the Defendant Currently Incompetent to Stand Trial. (Doc. #65). After thoroughly considering the exhibits and testimony admitted into evidence during the hearing on Defendant’s motion conducted from July 25, 2011 through August 3, 2011, the court file, and each party’s written submissions, the court makes the following findings of fact and conclusions of law regarding Defendant William Merriweather, Jr.’s (“Merriweather”) competency to proceed to trial. 1 A. Background (The Government’s Allegations in the Indictment) I. FINDINGS OF FACT 1. On May 14, 2007, the Government alleges that Merriweather robbed the Bessemer, Alabama branch of Wachovia Bank. During the commission of that offense, Merriweather shot four 1 The court is well aware that considerable time has passed since October 4, 2011, the date the parties completed their respective post-hearing briefing. At least in part, the delay has been occasioned by the difficult process of working through the evidence, evaluating the substance and import of expert opinion testimony, and resolving the direct and irreconcilable conflicts that have been produced by six medical professionals, three for each party. There is much at stake here. Among the most fundamental rights possessed by the accused is the right not to be tried for a serious crime unless one is competent to stand trial. As to this issue, the two sides are in utter disagreement about Defendant’s mental state, and the court has no medical or psychiatric training. There are no easy answers. Therefore, as will be seen, the court has fallen back on the time-honored (and tested) methodologies utilized for evaluating the divergent testimony of those who appeared at the hearing including, but not limited to: the experts’ opportunity to carefully and closely observe Defendant; the presence (or absence) of corroborative evidence; the expertise (and potential bias) of the witnesses; and the expert witnesses’s demeanor during his/her testimony. Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 2 of 74 women, killing two of them and wounding the other two. (Doc. #1 at 1-4). Merriweather then grabbed approximately $11,255 in cash and exited the bank with a hostage, whom he used as a human shield. (Doc. #4 (sealed) at 2). While attempting to flee, Merriweather was shot by police officers, immediately apprehended, and given emergency medical care. (Doc. # 4 (sealed) at 2). Merriweather has remained in custody since that time. B. Background Regarding Defendant Merriweather 1. William Merriweather was born the youngest of three children on May 20, 1976, in Birmingham, Alabama to William Merriweather, Sr. and On Sun Merriweather. (Tr. Vol. II, 295; Doc. #24 at 5; Def. Ex. #7 at 1). His mother was diagnosed with a brain tumor and died when Merriweather was three years old. (Tr. Vol. II, 296). Reportedly, prior to her death, Merriweather’s mother suffered from depression and once attempted suicide. (Tr. Vol. II, 296). Shortly after On Sun’s death, Merriweather’s father married her younger sister, Kum Cha, and together they raised Merriweather and his siblings, along with two sons born to Kum Cha and Merriweather, Sr. (Doc. #24 at 7; Def. Ex. #7 at 2). 2. Despite the death of Merriweather’s biological mother, it appears that Merriweather, Sr. and Kum Cha provided Merriweather and his siblings a stable home and childhood. Merriweather, Sr. indicated that Merriweather “was very close to his stepmother.” (Doc. #24 at 6). When asked to describe his childhood, Merriweather commented that “[e]verything was okay” and that he and his siblings “stayed out in the streets a lot, just playing.” (Doc. #24 at 5). Merriweather believed that the household was financially “okay” and described his parents as supportive, though not emotionally supportive. (Doc. #24 at 5). He reported that his parents were strict in their 2 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 3 of 74 discipline, but denied any form of childhood physical abuse. There were no signs of psychosis or any mental illness throughout Merriweather’s childhood and adolescence. (Tr. Vol. II, 335). 3. Merriweather graduated from Jackson Olin High School in 1994, where he participated in football and ROTC. (Tr. Vol. II, 296; Doc. #24 at 5). After high school, he moved in with his sister, Euknesha Kim Patton (“Patton”), to study at Alabama State University in Montgomery, Alabama. (Tr. Vol. II, 296). While living in Montgomery, Merriweather began dating Latisha Simpson in 1995. (Tr. Vol. III, 552). Merriweather did not complete his education at Alabama State and instead moved back to Birmingham in 1996. (Tr. Vol. II, 297). In 2001, Merriweather enrolled in ITT Technical College in Birmingham, Alabama, where he took courses in electrical work. (Tr. Vol. II, 298; Doc. #24 at 5). 4. The record evidence demonstrates that Merriweather has used drugs and alcohol consistently since his adolescence. Much of what is known about Merriweather’s drug use is self-reported; but there have been enough corroborating sources that the court is convinced that Merriweather has participated in substantial drug use. (Tr. Vol. I, 43; Doc. #24 at 6). 5. According to Merriweather’s testimony during his first mental capacity evaluation with Dr. Pietz, he began consuming alcohol at age 14 and using marijuana at age 17. (Tr. Vol. I, 43). Merriweather reported that his illicit use of marijuana developed into a prolonged and extensive history of substance abuse and addiction, which involved the daily use of marijuana, and the frequent use of cocaine, crystal methamphetamine, alcohol, and ecstacy. (Tr. Vol. I, 43). Merriweather began using cocaine at age 22, and he characterized that controlled substance as his drug of choice. (Tr. Vol. I, 43). Later, at around age 28, he began to use crystal methamphetamine frequently. (Tr. Vol. I, 43). He also acknowledged using “various pills,” “ecstacy,” and shooting heroin intravenously. 3 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 4 of 74 (Tr. Vol. I, 43; Doc. #24 at 6). Merriweather would use cocaine up to three times each day when it was available to him. (Doc. #24 at 6). 6. Merriweather’s father described an incident where Merriweather confided in him that he was hearing voices. Suspecting drug use, Merriweather’s father asked Merriweather if he had been taking illicit drugs. (Doc. #24 at 7). Merriweather responded in the affirmative, which prompted Merriweather, Sr. to inform him that the voices should cease if Merriweather would stop taking drugs. (Doc. #24 at 7). Merriweather’s sister, Euknesha Kim Patton, recalled a similar 2 experience that prompted her to ask Merriweather if he had been using drugs, and Merriweather admitted to her that he was. (Tr. Vol. II, 301). 7. Substances such as marijuana, cocaine, crystal methamphetamine, alcohol, and ecstacy can cause psychotic symptoms to develop and persist for years after drug use has ended. (Tr. Vol. I, 40, 43, 121-22, 159, 163; Tr. Vol. IV, 604). 8. While being treated at UAB Hospital for the gunshot wound following his arrest, Merriweather tested positive for opiates. (Tr. Vol. I, 103-04; Def. Ex. #15 at 18). 9. The earliest account of strange behavior exhibited by Merriweather comes from Latisha Simpson, who started dating Merriweather in 1995 when he moved to Montgomery to study at Alabama State University. (Tr. Vol. III, 552). Simpson testified at the hearing that Merriweather started to act oddly around 1996. (Tr. Vol. III, 553). For example, Simpson noted that Merriweather would laugh “at times when things weren’t funny.” (Tr. Vol. III, 554). She also recalled that Merriweather experienced “visions” and “hallucinati[ons].” (Tr. Vol. III, 554). Further questioning 2 William Merriweather, Sr. stated this more succinctly: “I asked him are you taking something and he said yes and I said you stop taking what you taking and you stop hearing voices.” (Doc. #24 at 7). 4 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 5 of 74 revealed, however, that to Simpson’s understanding these “visions” and “hallucinati[ons]” meant bad dreams. (Tr. Vol. III, 554). She stated that Merriweather experienced those “all the time.” (Id.). These bad dreams, Simpson testified, would cause Merriweather to wake up screaming on “several occasions.” (Id. at 555, 566). Yet, in her affidavit (Def. Ex. #75 at 1), Simpson stated that Merriweather woke up screaming “on one occasion,” a fact that she did not dispute at the hearing, but insisted that she meant to say “several occasions.” These and other inconsistencies lead the 3 court to find Simpson’s testimony to be of limited value. 10. Merriweather’s family reportedly began observing unusual behavior by Merriweather a few years after he returned to Birmingham in 1996. Between late 2001 and early 2002, Euknesha Kim Patton, Merriweather’s sister, received calls from family members informing her that Merriweather was acting strangely. (Tr. Vol. II, 299). This prompted Patton, who by her testimony had traveled to Birmingham to visit her family sometime in late 2001 or early 2002, to meet with Merriweather. (Id.). Patton testified that, during the meeting, Merriweather informed her that he was hallucinating, and seeing demons in everyone, including family members. (Id. at 299-300). According to Patton, Merriweather further confided in her that he felt that there was a conspiracy against his life, that he would see signs along the neighborhood and on television directed at him, that he was preoccupied with the letter “C,” that he believed that the government planted a chip in 3 For example, Simpson’s recollection of her contact with Merriweather is incongruent with other record evidence, including her own prior statements. She maintained that she communicated with Merriweather five to six times a year between 1999 and 2011 (Tr. Vol. III, 565); but Simpson also affirmed that her last conversation with Merriweather occurred in April 2007 (id. at 564) and stated that she lost contact with him sometime before 2004, when Merriweather met her at her salon (id. at 559), which was the last time she saw him. (Id. at 564). Neither her last conversation nor her last meeting is mentioned in her sworn affidavit. (Tr. Vol. III, 565; Def. Ex. #75 at 1). Even if Simpson’s conversations with Merriweather were as frequent as she previously reported, they apparently did little to inform Simpson about Merriweather’s life subsequent to the end of their relationship in 1999 (or 2001, her testimony is unclear). (Compare Tr. Vol. III, 553 with id. at 559 ; Simpson was unaware as to whether Merriweather was married and expecting children (Tr. Vol. III, 561) and also unclear as to where Merriweather worked (Id. at 558). 5 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 6 of 74 his shoulder, and that he could hear his father’s thoughts without his father speaking. (Tr. Vol. II, 300). At the end of their conversation, Patton asked Merriweather if he had been using substances, to which Merriweather responded that he had; however, according to Patton, Merriweather did not associate his experiences with a lack of rest, stress, or drug use. (Tr. Vol. II, 301). 11. Merriweather’s family did not pursue medical treatment for Merriweather’s behavior or his reported experiences. (Tr. Vol. I, 27-28; Vol. II, 299-300, 335, 349-50; Doc. #24). 12. Patton and her husband decided that it would be in Merriweather’s best interest to invite Merriweather to return with them to Montgomery. (Tr. Vol. II, 302). Merriweather packed a bag and left with them that night. (Id. at 303). Merriweather left his car in Birmingham. (Id. at 304). 13. For approximately nine months, Merriweather stayed with his sister in Montgomery, sharing a bunk bed with Patton’s two young children. (Tr. Vol. II, 303). During the first six months, Patton and her husband took precautions to restrict Merriweather’s exposure to drugs and alcohol. (Id.). 14. According to Patton, Merriweather’s paranoia persisted during his stay in her home. Patton testified that Merriweather told her that he thought her 6 and 4-year-old sons were plotting to kill him because they were allegedly speaking in code. (Tr. Vol. II, 305). Merriweather similarly accused Patton and her husband of speaking in code with each other. (Id. at 306). Such incidents, however, did not seem to diminish Merriweather’s ability to trust Patton with his life or Patton’s ability to trust Merriweather with her young children. Patton recounted that Merriweather would come into her bedroom to sleep at the foot of her bed, complaining that “he was seeing demons and 6 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 7 of 74 . . . hearing voices.” (Tr. Vol. II, 306). Patton and her husband “would tap him on the shoulder and ask him to go back to the boys’ room.” (Id.). 4 15. At the same time, Patton also testified that Merriweather’s condition appeared to improve somewhat over the course of his stay with her. His conversations became more rational and he experienced fewer “acrimonious” situations after four months. (Tr. Vol. II, 310). Patton attributed this to Merriweather’s church participation. (Id.). 16. Merriweather eventually moved out of Patton’s home to live with Alecia Smith, a former girlfriend (Tr. Vol. II, 307, 314). Merriweather took a position working with the Department of Corrections in Montgomery. (Id. at 312). The job lasted approximately sixty days. (Id.). Merriweather and Smith broke up after several months and Merriweather moved into a separate apartment, but he was evicted from that residence after six months. (Id. at 313-14). 17. Patton and her husband took Merriweather back into their home in 2003. (Tr. Vol. II, 315). Merriweather stayed in his sister’s home for another three to four months. (Id.). 18. This final stay in his sister’s home proved more fractious than Merriweather’s prior tenancy. Patton attested that she laid down several house rules Merriweather was expected to abide by during his stay: (1) he would not bring home visitors, (2) he would not smoke cigarettes in the house, (3) he would not bring alcoholic beverages into the house, and (4) he would clean up after himself. (Tr. Vol. II, 315). Merriweather broke all of these rules. (Id.). This prompted Patton and her husband to ask Merriweather to leave, which he did promptly. (Id. at 316). 5 4 The court has serious doubts about this testimony because the court questions whether Patton would have directed her brother back into her children’s bedroom at night after he complained about “seeing demons” and “hearing voices.” 5 Patton could not recall the precise year when this happened. (Tr. Vol. II, 316). 7 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 8 of 74 19. Patton testified that she continued to maintain contact with Merriweather and saw him the day before he robbed the Bessemer bank. (Tr. Vol. II, 317). She noted that Merriweather’s appearance disturbed her. (Id.). He wore dirty clothes and his manner of dress was different. (Id.). He had shaved his eyebrows and his head except for a patch of hair at the top of his head. (Tr. Vol. II, 317-18). Patton also described finding Merriweather practicing martial arts, chanting “Shaolin Monk, Shaolin Monk.” (Id. at 319). 20. On May 15, 2007, the day after the robbery, Merriweather was interviewed by detectives at the Jefferson County Jail. (Def. Ex. #16 at 1). During this interview, Merriweather’s speech remained rational, coherent, and composed, which was surprising given that he had been shot the day before. (Def. Ex. #16 at 3, 128). His responses, however, were noticeably evasive. On several occasions, Merriweather would try to delay answering a question. Merriweather professed 6 to be ignorant of his mother’s ethnicity. (Def. Ex. #16 at 55). At one point, Merriweather simply told the investigators that he intended not to cooperate. (Def. Ex. #16 at 22) (“I’m going to look over here the whole time you’re talking to me today.”). 21. During that post-arrest interview in the Jefferson County Jail, Merriweather repeatedly indicated to law enforcement that there was an accomplice, despite insistence by the detectives that video surveillance of the robbery revealed no other party to the robbery. (Def. Ex. #16 at 19, 23, 27, 29). Merriweather avoided naming the alleged accomplice, and provided an evasive reply when questioned directly. (Def. Ex. #16 at 18) (“[Y]ou know, you can have all types of names.”). Merriweather never named the alleged accomplice at the interview. Deeply skeptical 6 Def. Ex. #16 at 12 (“I would have to tell you now?”); Def. Ex. #16 at 18 (“You want to do this now?”); Def. Ex. #16 at 25 (“Like I say, I don’t want to talk about this now.”). 8 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 9 of 74 about the existence of such an accomplice, one of the interviewers, Agent Paul Watson, informed Merriweather that the charade was a waste of time because if he were to “go back and tell [investigators], well, Charles, was in the bank with [Merriweather]. . . then they’re actually going 7 to be wasting their time [looking] for somebody that may not exist.” (Def. Ex. #16 at 88). C. Procedural History and Preliminary Proceedings 1. On June 27, 2007, Merriweather was indicted by the Grand Jury in the United States District Court for the Northern District of Alabama. (Doc. #1). The charges include allegations that Merriweather engaged in Armed Bank Robbery by Force or Violence Resulting in Death, as well as Armed Robbery with Forced Accompaniment in violation of 18 U.S.C. §§ 2113(a), (d) and (e); the Use or Carrying of a Firearm During a Crime of Violence (gun discharged) in violation of 18 U.S.C. § 924(c)(1)(A); and the Use or Carrying and Discharge of a Firearm in Relation to a Crime of Violence Resulting in Death in violation of 18 U.S.C. §§ 924(c) and (j). (Doc. #1). Merriweather has also been indicted by the State of Alabama on charges of Capital Murder, Attempted Murder, and Kidnapping in the First Degree. (Doc. #4 at 3). 2. During preliminary hearings for the state charges, the Defense notified the court that it intended to retain the services of a mental health professional. (Doc #4 at 3; Doc #22 at 1). Anticipating that the Defense would raise mental health defenses, the United States interviewed Merriweather’s family and friends. (Doc # 4 at 3). Based on this investigation, the United States filed a motion on July 13, 2007, requesting that the court order Merriweather to submit to a mental evaluation to determine his mental competency to stand trial and his mental state at the time of the offenses. (Doc. #4 (Under Seal) at 3-4; see also Docs. #22 at 2, #152 at 2). 7 Agent Watson used the name “Charles” in his hypothetical to illustrate a point, and was not identifying an actual person. 9 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 10 of 74 3. By that time, the Defense had already retained Dr. Kimberly Svec Ackerson, a local forensic psychologist, to evaluate Merriweather. (Doc. #22 at 2). Magistrate Judge John E. Ott was aware of this arrangement and deferred ruling on the Government’s motion until after it received Dr. Ackerson’s evaluation report. (Id.). Dr. Ackerson’s evaluation report, which was completed following her last interview with Merriweather on September 24, 2007, was inconclusive. The report noted that Merriweather exhibited strong indicators of mental illness, but commented that Merriweather’s self-admitted history of drug use “serves to complicate the clinical picture.” (Def. Ex. #34 at 2). Moreover, Dr. Ackerson indicated that she was at an impasse with Merriweather, who refused to participate. (Id.). Dr. Ackerson strongly recommended that further evaluation be conducted at a facility that would be able to provide 24-hour observation with properly-trained mental health professionals available. (Def. Ex. #34 at 2). 4. In light of Dr. Ackerson’s recommendations, Judge Ott, in his October 12, 2007 order, referred Merriweather to the Bureau of Prisons for in-patient evaluation and treatment “to discern competency issues and to afford Defendant appropriate mental health treatment.” (Doc. #22 at 3). 5. From November 2, 2007 through January 14, 2008, Merriweather was housed at the United States Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP Springfield”) where he was evaluated by Dr. Christina Pietz. (Doc. #24). At the conclusion of Merriweather’s stay at MCFP Springfield, Dr. Pietz issued two formal reports: (1) a report regarding Merriweather’s competency to proceed to trial (Doc. #24 at 1-17), and (2) a report regarding Merriweather’s mental state at the time of the crime. (Id. at 18-27). In Dr. Pietz’s report regarding Merriweather’s competency to stand trial, she acknowledged testimony from Merriweather’s family describing 10 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 11 of 74 psychotic behavior, but concluded that such symptoms were best explained by Merriweather’s illicit drug use. (Id. at 11-12). The report concluded that Merriweather “does not currently suffer from a mental illness” (Id. at 13) and that Merriweather “is currently competent to stand trial and make other decisions regarding his case.” (Id. at 15). 6. After his mental evaluations were conducted at MCFP Springfield, Merriweather was returned to the Jefferson County Jail. (Doc. #7 at 4). 7. On June 3, 2008, the United States filed its formal Notice of Intent to Seek the Death Penalty. (Doc. #29). Pursuant to 18 U.S.C. § 3005, Judge Ott appointed Richard S. Jaffe and J. Derek Drennan to represent Merriweather. (Doc. #33; Doc. #36). 8. On November 10, 2008, almost a year after Merriweather’s evaluation at MCFP Springfield was completed, Jaffe first expressed his concern to the Government that, based on information discovered by the Defense mitigation team, Merriweather was “decompensating” and 8 would not be competent to assist in his defense. (Doc. #70 at 5). Jaffe repeated his concerns on May 14, 2009, when he again informed the Government that Merriweather was decompensating and having “conversations in his head.” (Doc. #70 at 5). 9. On December 9, 2008, Judge Ott granted the Defense’s request for a mitigation investigator and a victim liaison. (Doc. #47). 10. On January 26, 2009, Dr. Richard G. Dudley, a psychiatrist retained by the Defense, interviewed Merriweather (Def. Ex. #9 at 2) and later produced an affidavit declaring his belief that 8 “Decompensation” has been defined as a breakdown in the psychological defense mechanisms that help individuals maintain good mental functioning. Decompensation may occur under stress or in mental disorders such as anxiety, depression, or psychoses with hallucinations or delusions. ADA P. KAHN & JAN FAWCETT, THE ENCYCLOPEDIA OF MENTAL HEALTH 127 (1993). 11 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 12 of 74 Merriweather “is unable to understand the charges against him and is unable to assist his lawyers or [Dudley] with [Merriweather’s] case.” (Def. Ex. #66 at 1). On April 30, 2009, Dr. James Merikangas, another psychiatrist retained by the Defense, interviewed Merriweather for approximately one and a half hours (Tr. Vol. VII, 1128) and concluded in a two-sentence letter addressed to the Defense that Merriweather was incompetent to stand trial. (Doc. #66). The Defense did not notify the Government of either of those evaluations. (Doc. #70 at 6-7). 11. Dr. Robert Hunter, a psychiatrist at the Jefferson County Jail, testified that he was called on two occasions to examine Merriweather in 2009. On April 16, 2009, Dr. Hunter was called to examine Merriweather after he fasted enough to slip through the food door, and was able to slide under the gate. (Tr. Vol. V, 886; Def. Ex. #36 at 1). After escaping his cell, Merriweather assaulted another prisoner. (Id.). Dr. Hunter testified that Merriweather was calm and cooperative during the interview and did not show any outward signs of psychosis. (Def. Ex. #36 at 1). During his second examination on July 31, 2009, however, Dr. Hunter testified that Merriweather’s behavior was markedly different. (Def. Ex. #36 at 1). Merriweather was “paranoid and preoccupied with the idea that he was housed ‘around homosexuals’” and his speech and thought processes “were rambling and at times disjointed.” (Id.). Dr. Hunter described Merriweather as irritable and noted that he became increasingly hostile as the interview progressed, which forced Dr. Hunter to terminate the interview. (Id.). 12. On August 5, 2009, the Defense moved to have Merriweather declared incompetent to stand trial and requested that he be remanded to the custody of the Attorney General to be placed in a federal mental health facility until competency was restored. (Doc. #65). In support of its motion, the Defense filed Dr. Merikangas’s letter as a sealed ex parte pleading, effectively depriving 12 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 13 of 74 the Government of notice concerning both the existence of the evaluations and their use. (Doc. #70 at 6-7). 9 13. Judge Ott conducted a telephone conference with the parties on August 10, 2009 to ascertain their positions regarding the motion. (Doc. #70 at 7). Apprehensive about the impartiality of the previously undisclosed psychiatrists hired by the Defense, the United States requested that Merriweather undergo another mental evaluation by the Bureau of Prisons to obtain a more current, less biased determination as to whether Merriweather had actually decompensated since his evaluation at MCFP Springfield. (Doc. #70 at 7-8). 14. The Defense responded with a request that the court appoint a private independent psychiatrist(s) — rather than the Bureau of Prisons — to evaluate Merriweather’s competency due to allegations that Dr. Pietz was biased in favor of the Government. (Doc. #72). The Defense also moved the court to exclude Dr. Pietz from participating in any future evaluations should the court nonetheless remand Merriweather to the Bureau of Prisons for reevaluation. (Doc. #72). 15. A hearing was convened on August 20, 2009 and the parties submitted post-hearing briefs. (Doc. #79 at 1-2). After considering the respective arguments and applicable law, Judge Ott issued an order on November 16, 2009, directing that Merriweather undergo a new evaluation at the Federal Medical Center at Butner, North Carolina (“FMC Butner”). (Doc. #79). At the insistence of Defense counsel, Judge Ott further ordered that all interviews with Merriweather be videotaped, and that the final report include input by a neuropsychiatrist and/or neurologist. (Doc. #79 at 14). 9 While the court cannot approve of these tactics, these facts do not affect the court’s determination of the issue at stake here: whether Merriweather is competent to stand trial. 13 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 14 of 74 16. From December 9, 2009, until April 18, 2011, Merriweather underwent an extended in-patient competency evaluation at FMC Butner. (Tr. Vol. IV, 583). During his 496-day stay at FMC Butner, Merriweather was kept under constant surveillance by staff members who checked on his condition every 15 minutes. (Tr. Vol. IV, 584). 17. Merriweather’s behavior during his time at FMC Butner appears to have been stable. According to Eugene Singleton, a federal corrections officer who saw Merriweather on a regular basis, Merriweather had the calm demeanor of an ordinary inmate doing his time. (Tr. Vol. VIII, 1265-66). Singleton never observed Merriweather reacting to hallucinations or paranoid delusions. (Id.). Merriweather was never aggressive or rude toward the corrections officers. (Tr. Vol. VIII, 1267). Merriweather generally spent his time sleeping, but he would chat from time to time with Singleton when he made his periodic rounds, sometimes requesting peanut butter, or a magazine or novel to read. (Tr. Vol. VIII, 1268-69). 18. In compliance with Judge Ott’s second requirement, the Bureau of Prisons secured the services of two outside consultants, Alan Mirsky, Ph.D., a neuropsychologist, and Thomas Gualtieri, M.D., a neuropsychiatrist, to evaluate Merriweather in addition to the evaluation performed by FMC Butner staff. Their reports were reviewed and summarized by Dr. Edward Landis, the Deputy Chief Psychologist at FMC Butner, who passed them to the psychiatrist charged with supervising Merriweather’s evaluation at FMC Butner, Staff Psychiatrist Bruce Berger, M.D. (Tr. Vol. VIII, 1288). 19. Dr. Berger reviewed the reports submitted by Drs. Misky, Gaultieri, and Pietz (Tr. Vol. IV, 585) as well as collateral reports by Drs. Dudley, Hunter, and Merikangas. (Tr. Vol. IV, 587). Dr. Berger, who was assisted by Dr. Jill Grant and a team of mental health professionals, 14 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 15 of 74 conducted four videotaped formal interviews in addition to seeing Merriweather on a daily basis for 496 days. (Tr. Vol. IV, 586). On April 1, 2011, Dr. Berger issued a report in which he concluded that Merriweather “does currently posses the capacity to understand his current charges, understand courtroom functioning, and could, should he so choose, work affirmatively with his attorney in a rational way…[and that] he is competent to proceed.” (Gov’t Ex. #10 at 10). 20. After his evaluation at FMC Butner, Merriweather was returned to the Northern District of Alabama on April 20, 2011 and housed at the Shelby County Jail. (Tr. Vol. VII, 1015). 21. Upon his return to the Shelby County Jail, Merriweather initially refused to eat for nine days, but instead requested Ensure from medical staff. (Tr. Vol. VII, 1215). On the ninth day (April 29, 2011), Merriweather resumed eating with a renewed appetite; he would ask for extra trays and often consumed two or three trays per meal. (Id.). According to Officer Tim Laatsch, a corrections officer with the Shelby County Sheriff’s Office, Merriweather ate regularly until he was moved from his segregation unit into an intermediate housing unit closer to the general prison inmate population. (Id. at 1215-16). After being relocated, Merriweather again refused to eat. (Id. at 1216). Officer Laatsch testified that Merriweather had apparently told another inmate that he (Merriweather) would not eat anything wet or shiny. 10 (Id.). Because he refused to eat, Merriweather lost a significant amount of weight and was consequently re-located to the medical unit of the jail where he could be more closely monitored. (Id.). Although Merriweather refused the food prepared by the facility, Officer Laatsch was able to procure pre-packaged store items, which Merriweather did consume. (Id. at 1217). 10 That inmate reported Merriweather’s statement to another officer, who conveyed the information to Officer Laatsch. (Tr. Vol. VII, 1216). The inmate’s statement to the other officer and the unidentified officer’s statement to Officer Laatsch both appear to be examples of hearsay without exception, but neither side objected to the testimony. 15 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 16 of 74 22. After beginning his stay at the Shelby County Jail, Merriweather refused to bathe regularly, showering only every third or fourth day. 11 (Tr. Vol. VII, 1219). 23. During three days in June 2011, Dr. Merikangas and Dr. Dudley, the expert witnesses retained by the Defense to evaluate Merriweather two years earlier, attempted to meet with Merriweather at the Shelby County Jail; Merriweather refused to engage with them. (Tr. Vol. VI, 946; Tr. Vol. VII, 1148). 24. On June 22, 2011, Dr. Merikangas visited Merriweather in the Shelby County Jail. (Tr. Vol. VII, 1146, 1149). When Dr. Merikangas attempted to interview Merriweather in a small attorney-client interview room, Merriweather ignored him. (Id. at 1148). Dr. Merikangas noticed that Merriweather’s weight had dropped dramatically. (Id.). Dr. Merikangas visited Merriweather again on June 23, 2011. (Id. at 1149). Again, Merriweather was unresponsive. Dr. Merikangas noted that, when he asked about Merriweather, the correctional officers who accompanied him into the room indicated that Merriweather’s behavior towards Dr. Merikangas was not different from his behavior towards the guards and they expressed sympathy for Merriweather. (Id. at 1151). 25. On June 24, 2011, Dr. Dudley visited Merriweather in his cell at the Shelby County Jail. (Def. Ex. #9 at 2; Tr. Vol. VI, 945). The first thing Dr. Dudley noticed was the smell; he had been told by correctional officers that Merriweather had not been showering. (Tr. Vol. VI, 944-45). Dr. Dudley recounted that correctional officers had told him that Merriweather was not eating food prepared by the jail, but was eating sealed, packaged food. (Id. at 945). When Dr. Dudley attempted 11 Officer Laatsch testified that Merriweather was offered the opportunity each day to leave his cell and be escorted to a shower. During most of the days when Officer Laatsch was tasked with escorting Merriweather to shower, Merriweather refused. 16 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 17 of 74 to communicate with Merriweather, the only responses he was able to elicit were “the hand signals and the verbal refusal to speak.” (Tr. Vol. VI, 946). 26. Finally, on June 27, 2011, in the presence of Mr. Jack Earley, a lawyer retained by the Defense as a criminal law expert, Merriweather engaged in an extensive conversation with his Defense counsel. (Tr. Vol. V, 823). 27. Also on June 27, 2011, Judge Ott entered an order authorizing personnel at the Shelby County Jail to take any reasonable steps necessary to ensure Merriweather’s health was not further compromised, including forcibly feeding and bathing him. (Doc. #109). 28. Following the court order, Diana Shirley, Director of Nursing at the Shelby County Sheriff’s Office, was scheduled to insert a feeding tube through Merriweather’s nose. (Tr. Vol. VII, 1233). Director Shirley testified that Merriweather was unhappy about this prospect, and volunteered that he “might try to eat” if she would not insert the feeding tube. (Tr. Vol. VII, 1234). Shirley responded that the offer to maybe “try to eat” was not a real offer; either Merriweather would eat or the tube would be inserted. (Tr. Vol. VII, 1234). Merriweather promptly agreed to eat. (Id.). Shirley further testified that Merriweather resumed eating normally after that confrontation and never again complained about food that was wet or shiny or that he was being poisoned. (Tr. Vol. VII, 1236). Shirley further noted that she never observed Merriweather having conversations in his head while at the Shelby County Jail. (Tr. Vol. III, 1245). 29. Kelly Hammonds, another nurse at the Shelby County Jail who interacted with Merriweather, testified that Merriweather showered daily following the court order authorizing prison staff to take necessary procedures to ensure that Merriweather bathed and ate. 12 (Tr. Vol. VII, 12 This testimony is consistent with that of Officer Laatsch. (Tr. Vol. VII, 1219). 17 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 18 of 74 1249). Hammonds further testified that Merriweather spoke clearly and articulately, had no difficulty communicating with prison staff (id. at 1244), and never mentioned anything about demons, little green men, or a chip in his arm. (Id. at 1245). Moreover, after the court order authorized prison staff to force feed him, Merriweather ate three meals a day and was fully cooperative in doing so. (Id. at 1246). 30. Since being housed at the Shelby County Jail, Merriweather has neither been observed responding to internal stimuli, nor has he given any indication of suffering from delusions or hallucinations. (Id. at 1218, 1236, 1245). 31. On July 25, 2011, this court convened a hearing, pursuant to 18 U.S.C. §§ 4241(a) and (c), to hear testimony and receive evidence on the issues surrounding Merriweather’s competency to stand trial. The court heard from several Government witnesses. Included in this group were four mental health experts (Drs. Pietz, Berger, Gualtieri, and Landis), two nurses (Diana Shirley and Kelly Hammonds), and two corrections officers (Tim Laatsch and Eugene Singleton). The Defense countered with seven witnesses, including three mental health experts (Drs. Merikangas, Mirsky, and Dudley), a legal “expert” (Jack Early), a jail psychiatrist (Dr. Robert Hunter ), Merriweather’s sister (Kim Patton), and Merriweather’s former girlfriend (Latisha 13 Simpson). Merriweather did not testify. In addition, the court received a total of 106 exhibits into evidence. 32. At the request of the court, both parties submitted briefs as well as proposed findings of facts and conclusions of law. The Government submitted its brief in support of a determination that Merriweather is competent to stand trial (Doc. #152), along with proposed findings of fact and 13 Dr. Hunter did not testify as an expert witness. 18 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 19 of 74 conclusions of law. (Doc. #153). The Defense submitted its brief in support of a determination that Merriweather is incompetent to stand trial (Doc. #156), along with proposed findings of fact and conclusions of law. (Doc. #154). The Government, having borne the burden to prove Merriweather competent by a preponderance of the evidence, 14 was permitted to proceed first at the hearing and also had the opportunity to reply to Merriweather’s submissions, which it did on October 4, 2011. (Doc. #157). The party submissions have been carefully considered along with the testimony of the expert witnesses. D. Expert Evaluations Each party called a number of expert witnesses at the hearing, and their testimony is addressed below. 1. Dr. Christina Pietz 1. Merriweather’s first court-ordered evaluation occurred at the United States Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP Springfield”) from November 2, 2007 to January 14, 2008. (Tr. Vol. I, 19; Gov’t Exs. #2, 3). Merriweather’s evaluation was overseen by Dr. Christina Pietz, a psychologist with 21 years of experience at MCFP Springfield. (Tr. Vol. I, 13). Dr. Pietz conducted six formal interviews totaling 12-15 hours, and informal interviews in the course of routine rounds on Merriweather’s unit for 75 days. (Id. at 19-20, 32). Over the course of Merriweather’s evaluation, Dr. Pietz administered five psychological tests: (1) the Validity Indicator Profile; (2) the Shipley Institute of Living Scale; (3) the Minnesota Multiphasic 14 There is a question regarding whether the Government bears the burden of establishing competency, or the defendant bears the burden of establishing that he is incompetent. The language of 18 U.S.C. § 4241 is silent on this point, noting only that the court must find by a preponderance of the evidence that the defendant is incompetent to stand trial. The parties filed briefs on this issue and, thereafter, the Government indicated that it was prepared to undertake the burden of proof on the issue. (Doc. #113 at 6-7). After careful review of relevant case law, the court concluded that the Government should bear the burden of establishing competency. (See Doc. #133). 19 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 20 of 74 Personality Inventory; (4) the Evaluation of Competency to Stand Trial-Revised (ECST-R); 15 and (5) the Structured Interview of Reported Symptoms. (Doc. #24 at 3). She also consulted daily with the mental health care and correctional staff members who kept Merriweather under constant observation and reviewed collateral information, such as Dr. Ackerson’s findings, investigative reports concerning the robbery, and Merriweather’s phone conversations after the arrest. (Tr. Vol. I, 24-26). 2. Dr. Pietz’s findings were compiled into two reports, one dealing with Merriweather’s competency to stand trial and another concerning Merriweather’s mental state at the time of the offense. (Doc. #24). 3. In Dr. Pietz’s report on Merriweather’s competency to stand trial, she diagnosed Merriweather with adult antisocial behavior and attributed Merriweather’s behavior to polysubstance dependence. (Doc. #24 at 14). She concluded that “Merriweather does not currently suffer from a mental illness, and therefore, by definition does not meet the criteria for being found not competent.” (Doc. #24 at 14). Pietz based this conclusion on Merriweather’s responses to the psychological tests, his responses during interviews, and a review of relevant literature. (Tr. Vol. I, 63). 4. Most notably, Dr. Pietz found that Merriweather’s scores on the ECST-R suggested no impairment in his ability to consult with his attorney or have a rational understanding of court proceedings. (Doc. #24 at 14). Indeed, Dr. Pietz indicated that Merriweather performed “exceptionally well” on the ECST-R – even better than one of her students. (Tr. Vol. I, 59). 15 The Evaluation of Competency to Stand Trial-Revised (“ECST-R”) is a checklist of questions designed to measure a defendant’s ability to understand the nature and consequences of the proceedings against him, as well as his ability to assist his lawyers in his own defense. (Tr. Vol. VII, 1186). 20 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 21 of 74 5. There was one exception to Merriweather’s otherwise strong performance on the ECST-R: his score suggested moderate impairment in his ability to have a factual understanding of court proceedings. (Doc. #24 at 14). Dr. Pietz found this result to be surprising given that Merriweather had clearly demonstrated that he had a factual understanding of court proceedings in other interviews. (Id.). When asked about the roles of various actors in legal proceedings, Merriweather was able to correctly identify the roles of the judge, the prosecutor, and the Defense counsel. (Id. at 15). He understood that a jury of 12-14 jurors would be selected from his community, though he did not know that a guilty verdict required a unanimous decision and stated that “[t]he role of the jury is to find the defendant guilty.” (Id.). When asked about possible pleas, Merriweather had no difficulty articulating his understanding of various pleas available to him. He explained, for example, that “[t]he insanity plea is…instructs that at that moment at the time of what happened, [Merriweather] wasn’t [him]self because of illegal drugs that [Merriweather] had taken…from the pills, marijuana and cocaine.” (Doc. #24 at 15). Merriweather demonstrated that he understood what it means to plead guilty or not guilty and the consequences of entering a plea bargain, commenting that “a defendant should discuss the options of a plea bargain with his attorney.” (Id.). Merriweather further acknowledged that, if found guilty, he may receive “possible life in prison or the death penalty.” (Id.). 6. Conflicts among various statements given by Merriweather are not limited to discrepancies between his performance on the ECST-R and his answers in interviews. Dr. Pietz’s interviews with Merriweather are littered with references to inconsistent statements he made that, when taken together, reveal a pattern of evasive behavior undertaken by Merriweather to conceal the extent of his knowledge and culpability. For example, when asked about the charges against him, 21 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 22 of 74 Merriweather initially claimed that he had no knowledge that he was charged with murder. (Doc. #24 at 14). In a subsequent interview, Merriweather acknowledged the murder charge and indicated that his attorney and investigating officers informed him of the charges against him soon after his arrest. (Doc. #24 at 14). When questioned about the events leading up to the arrest, Merriweather initially asserted that he could recall only a few details of the alleged offenses. (Doc. #24 at 14). During subsequent interviews, however, Merriweather provided clear, detailed, and coherent recollections of the robbery, including a written description of his memory of the events. (Doc. #24 at 15). 7. The details of the robbery provided by Merriweather, however, varied with each interview. One jarring inconsistency in Merriweather’s recollection of the robbery was his indication in earlier interviews of the presence of an accomplice named “Charlie.” (Doc. #24 at 15). During five of the first six interviews, Merriweather provided a different rendition of the robbery with Charlie featured in a new role with each telling. (Tr. Vol. I, 32-33). In one version, for example, Charlie took Merriweather to the bank to “cash a check.” (Id. at 33). In another version, Charlie was actually the person who got shot escaping the crime scene. (Id.). In yet another version, Charlie simply told Merriweather to follow him into the bank, placing Merriweather at the wrong place at the wrong time. (Id.). From all of these accounts, Dr. Pietz was left with the impression that Merriweather was trying to minimize responsibility by “trying to blame others.” (Id. at 35). Dr. Pietz noted that when she directed Merriweather’s attention to a discrepancy between his stories and the investigative record, Merriweather would “try[] to come up with a different response that made more sense.” (Id.). 22 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 23 of 74 8. Merriweather requested the sixth interview he had with Dr. Pietz, and during that interview gave an account of the robbery in which “Charlie” was absent and Merriweather took responsibility for the robbery. (Tr. Vol. I, 34). In that interview, Merriweather stated that he had received a “message” that described the inside of the bank and the identity of the manager. (Id.). 9. While Merriweather gave different descriptions of his involvement in the bank robbery, Dr. Pietz found that there was never any doubt that Merriweather understood what he was charged with and why he was incarcerated. (Tr. Vol. I, 32-35). Dr. Pietz attributed these inconsistencies to evasive behavior rather than mental illness. (Id. at 34-35). 10. Further supporting her position that Merriweather was more likely manipulative than mentally infirm, Dr. Pietz found Merriweather’s speech and behavior to be inconsistent with symptoms typically associated with mental illness. Dr. Pietz testified that persons suffering from mental illness, Dr. Pietz testified, are disorganized in their thoughts and speech, struggle to provide information, and typically provide inaccurate information tainted by delusional thought. (Tr. Vol. I, 30). Concealing disorganized speech (and, therefore, concealing a mental illness) is not easy and will likely reveal itself over time during conversations or meetings involving persons genuinely suffering from a psychotic illness. (Id. at 54). Throughout Merriweather’s 75-day evaluation at MCFP Springfield, his speech was never observed to be disorganized, but was instead described as rational, coherent, and organized. (Id. at 27-30, 41, 44, 46-47, 54-55). If anything, Dr. Pietz characterized Merriweather’s responses to questions relating to the robbery as “cautious.” (Tr. Vol. II, 272, 275). Merriweather’s behavior was similarly inconsistent with symptoms typical of mental illness. There were no signs of memory deficit. (Tr. Vol. I, 57). Merriweather maintained 23 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 24 of 74 a clean cell and bathed regularly during his stay at MCFP Springfield. (Id. at 45). Merriweather was never mute, though he did take time to think through his responses. (Id. at 46, 57). 11. Dr. Pietz also found no negative signs of schizophrenia. 16 With regard to positive signs of schizophrenia, there were two incidents that, if genuine, could be construed as evincing positive signs of schizophrenia. Dr. Pietz, however, found both instances to be suspect. (Tr. Vol. I, 51, 90). 12. In the first incident, Merriweather reported seeing gremlins in his cell to Dr. Leanne Preston, the on-call psychologist. (Tr. Vol. I, 39, 90). Merriweather told Dr. Preston that he thought he might be suicidal. (Id. at 40). Dr. Preston placed Merriweather under suicide watch, but wrote in her report that Merriweather’s claim that he saw gremlins was suspect. (Id.). Dr. Pietz found Merriweather’s claims to be questionable for at least five reasons. First, as Dr. Pietz noted, it is very rare for truly psychotic people to experience visual hallucinations. (Id.). Visual hallucinations are actually more consistent with illicit substance abuse than psychosis. (Id.). Second, even in the rare cases when someone actually experiences visual hallucinations, the hallucinations are usually frightening and not casually mentioned. (Id. at 42). Third, people who complain about being suicidal are typically not truly suicidal since drawing attention to themselves increases the chances that a suicide attempt would be thwarted. (Id. at 41). Fourth, when placed under suicide watch, Merriweather was more upset about losing his privacy because of the constant surveillance imposed by the watch than he was due to any perceived gremlins or alleged suicidal 16 Schizophrenic symptoms are categorized into positive and negative signs. Positive signs include abnormally excessive expressions of mental functioning, such as hallucinations, disorganized speech, delusions, and grossly disorganized or catatonic behavior. Negative signs of schizophrenia include abnormally diminished functioning in speech and behavior, such as a flat affect and alogia. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 299 (4th ed. 2000). 24 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 25 of 74 tendencies. Indeed, Merriweather actually requested to be taken off suicide watch as soon as possible. (Id.). Finally, Dr. Pietz testified that generally hallucinations do not completely go away, even for psychotic individuals who are medicated. (Id. at 42). Merriweather did not mention gremlins when he requested to be taken off the suicide watch or anytime afterwards. (Id. at 41). Dr. Pietz therefore found Merriweather’s alleged hallucination suspect. (Id. at 40). 13. The second incident involved Merriweather scraping his arms with a spork. (Tr. Vol. I, 42). He told a nurse that there were bugs in the room, which may have been a visual hallucination. (Id.). Merriweather, however, did not seem overly concerned about it. (Id.). Dr. Pietz discounted this incident because visual hallucinations are typically sufficiently frightening to the patient to warrant more than a single, casual mention. (Id.). In this case, Merriweather mentioned the bugs casually, but did not appear disturbed by them nor did he mention seeing bugs in his room again. (Id.). 14. Based on her observations of Merriweather during his 75-day evaluation at MCFP Springfield, his responses to psychological tests, and a review of collateral sources, Dr. Pietz concluded that Merriweather was not mentally ill, but instead experienced abnormal stimuli as a result of polysubstance abuse, and exhibited an anti-social disorder. (Tr. Vol. I, 52-53). Because Merriweather does not suffer from a mental illness, Dr. Pietz opined that he is competent to stand trial. 17 17 The ultimate question of whether Merriweather is competent to stand trial is a legal determination that the court must make. 25 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 26 of 74 2. Dr. Richard G. Dudley, Jr. 1. Over one year after Dr. Pietz completed her 75-day evaluation of Merriweather, the Defense hired Dr. Richard G. Dudley Jr., a psychiatrist, to evaluate Merriweather for mental illness. Dr. Dudley met with Merriweather on three separate occasions. The first interview, conducted over two days, began on January 26, 2009. (Def. Ex. #9 at 2). Dr. Dudley also met with Merriweather on August 17, 2009 (Def. Ex. #66 at 1), and again on June 24, 2011, after Merriweather returned from his second extended evaluation at FMC Butner. 18 (Def. Ex. #9 at 2). During that final meeting, however, Merriweather refused to communicate with Dr. Dudley. (Tr. Vol. VI, 946, 962, 1006-07). Altogether, Dr. Dudley estimates that he spent a total of 16 hours with Merriweather over the course of three sessions. (Id. at 921). 2. Dr. Dudley is qualified by training and experience as a forensic psychiatrist. (Tr. Vol. VI, 912-17). He has extensive experience in diagnosing and treating people who are both schizophrenic and substance abusers based upon the time he spent running a community mental health clinic in Harlem, New York City. (Id. at 940). 3. In addition to interviewing Merriweather, Dr. Dudley reviewed previous evaluations and other collateral sources of information regarding Merriweather’s background and history, which he considered vital to his evaluation. (Tr. Vol. VI, 920-21). After reviewing the available record and evaluations, Dr. Dudley found four possible diagnoses explaining Merriweather’s condition: 18 Dr. Dudley’s 2011 consultation with Merriweather lasted only a few minutes, so the vast bulk of his evaluation took place in 2009. Also, during his cross-examination, he admitted that while sitting in on two days of the hearings (prior to his own testimony), he did not look at or observe Merriweather. 26 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 27 of 74 a) b) c) Merriweather suffers disorder, primarily schizophrenia; from a psychotic Merriweather suffers from substance-induced psychotic disorders; Merriweather suffers from a combination of drugs and schizophrenia; or d) Merriweather is simply malingering. (Id. at 922-23). 4. Of these possible diagnoses, Dr. Dudley gave his opinion that the most appropriate and accurate diagnosis was that Merriweather is a person who suffers from schizophrenia and who also uses drugs. (Tr. Vol. VI, 926-27). 5. Drawing from the DSM, 19 Dr. Dudley defined schizophrenia as “characterized by an episode of illness that lasts for approximately six months.” (Tr. Vol. VI, 927). That episode of illness, Dr. Dudley testified, has three phases: (1) a prodromal period where the person’s ability to function begins to deteriorate; (2) the active phase of the illness (which must span at least one month of that six month period) where the individual is exhibiting the full spectrum of schizophrenia symptoms, both positive and negative; and (3) a period afterwards that is similar to the prodromal period during which the person is pulling himself back together. (Id.). The course the illness may run is variable; that is, individuals will alternate between periods of illness and stability. (Id.). Dr. Dudley further attested that “[t]here are people who have some residual symptoms in between episodes of illness and then many people, if untreated, gradually deteriorate over time, and the 19 The Diagnostic and Statistical Manual of Mental Disorders (“DSM”) is a manual compiled by the American Psychiatric Association that organizes and defines conditions the American Psychiatric Association classifies as mental disorders. Dr. Dudley’s description of schizophrenia is largely consistent with the definition provided in the fourth edition of the DSM. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 298-99 (4th ed. 2000). 27 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 28 of 74 residual symptoms that are there between episodes become more and more severe and so that it begins to look like a pattern of continuous illness with the onset of this whole disorder.” (Id. at 928). 6. Dr. Dudley testified that the symptoms his family recounted were exhibited by Merriweather, 20 and the change in Merriweather’s condition between Dudley’s initial interview in 2009 and what he saw in 2011, were consistent with “classic” schizophrenia. (Tr. Vol. VI, 928- 29, 957). 7. Dr. Dudley testified that when he saw Merriweather in 2009, Merriweather was verbal, but disorganized and distracted. Merriweather appeared to be responding to internal stimuli, and his responses were bizarre. According to Dr. Dudley, Merriweather evinced no understanding of the nature of the case, the charges against him, and the possible outcomes of his case. Merriweather talked about his imminent release and expressed the view that he had been held longer than he expected. Dr. Dudley found Merriweather’s affect to be flat, and testified that Merriweather would interrupt him with inappropriate laughter. In a subsequent meeting in 2009, Merriweather expressed to Dr. Dudley that he felt he was at risk of being harmed, perhaps poisoned. (Tr. Vol. VI, 943-44). 8. An important factor in Dr. Dudley’s diagnosis was Merriweather’s substantial weight loss. (Tr. Vol. VI, 923-30, 996). He did, however, concede that Merriweather’s later decision to continue eating, arising from his aversion to the needles and tubes that would have been used to inject nutrition into him, reflected a choice by Merriweather to realize a clear preference. (Id. at 1022). 20 Much of Dr. Dudley’s understanding of Merriweather’s life before the robbery appears to have come from Patton and Simpson. For reasons mentioned earlier, the testimony of Merriweather’s sister and former girlfriend regarding his condition before the robbery appear suspect in some important aspects. 28 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 29 of 74 9. Also important to Dr. Dudley’s evaluation was Merriweather’s refusal to communicate with him during Dr. Dudley’s visits to the Shelby County Jail in June 2011. (Tr. Vol. VI, 946). Dr. Dudley interpreted Merriweather’s refusal to communicate with him as indicative of the inability to communicate. (Id. at 951). 21 10. Dr. Dudley dismissed the role of illicit drugs in the context of Merriweather’s diagnosis because (1) Merriweather’s symptoms seemed to be present when he was not using drugs, and (2) there was a lack of information to identify a drug, or indicate that drugs were used in the quantity or for the duration necessary to cause the symptoms. (Tr. Vol. VI, 925). However, Dr. Dudley did note that, in addition to marijuana use, there is evidence that Merriweather used other illegal drugs. (Id. at 958, 978). 22 11. Dr. Dudley considered, but ruled out malingering, in part because mimicking the negative symptoms of schizophrenia, even if one were to assume that the patient knows what they are, would be difficult. (Tr. Vol. VI, 937-39). Dudley admitted, however, that he was unfamiliar with the Test of Memory Malingering (“TOMM”) and was not an expert in malingering. (Id. at 956, 1003). 21 In this regard, Dr. Dudley appears to mistake the different concepts of disinterest and disability. The day after Merriweather failed to speak with Dr. Dudley, Merriweather engaged in an extended conversation with his lawyers and Jack Early. (Tr. Vol. V, 823). 22 Of course, the record is replete with both anecdotal and empirical evidence of Merriweather’s drug use, including (1) Merriweather’s self-reports of the use of other drugs and (2) the lab tests conducted at UAB on the day after the bank robbery that indicate his use of opiates. (Tr. Vol. I, 103-04, Def. Ex. #15 at18). Moreover, even if the court were to only consider the anecdotal evidence in isolation, Dr. Dudley has selectively credited certain reports (e.g., reports that Merriweather was obsessed with the letter “C”), but dismissed other reports (e.g., that he was an illicit drug user) in reaching his diagnosis. 29 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 30 of 74 12. Dr. Dudley recommended to counsel that a neurological expert be retained to determine, among other things, whether scans and MRIs of Merriweather’s brain were normal. (Tr. Vol. VI, 953). 3. Dr. James Merikangas 1. On April 30, 2009, while Merriweather was still incarcerated in the Jefferson County Jail, Dr. James Merikangas, a board-certified forensic neuropsychiatrist retained by the Defense, interviewed Merriweather for one and a half to two hours. (Tr. Vol. VII, 1128). In connection with this meeting, Dr. Merikangas reviewed extensive collateral material and requested an MRI and a PET scan of Merriweather’s brain to detect any physical abnormalities. (Id. at 1129). During the initial meeting, Dr. Merikangas formed an impression that Merriweather was psychotic, suffered from hallucinations, ideas of reference, ideas of influence, and that his grasp on reality was impaired. Merriweather reported to Dr. Merikangas that televisions were speaking directly to him, he thought that he could control people with his thoughts, and asked if they were in a movie. Dr. Merikangas observed positive symptoms of schizophrenia, namely, paranoia, hallucinations, and delusions. (Id. at 1129-31). 2. Two years later, in June 2011, Dr. Merikangas visited Merriweather for a second time. This occurred after Merriweather had returned from custodial evaluations at FMC Butner. Dr. Merikangas reported that he attempted to interview Merriweather in a small attorney-client room, this time at the Shelby County Jail, but Merriweather remained mute during the meeting. (Tr. Vol. VII, 1146). Dr. Merikangas returned the next day to assess whether Merriweather was competent to stand trial using the ECST. (Id. at 1149). 30 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 31 of 74 3. Dr. Merikangas also reviewed records from Merriweather’s stay at FMC Butner, jail records from the Shelby County Jail, and reports and interviews conducted by other medical experts. (Tr. Vol. VII, 1147). 4. Based on his interviews and a review of these records, Dr. Merikangas concluded that Merriweather suffers from psychosis due to schizophrenia and recommended that Merriweather be given anti-psychotic and mood stabilizing medication. (Tr. Vol. VII, 1142-43). 5. Dr. Merikangas also found that Merriweather is unable to cooperate with counsel. (Tr. Vol. VII, 1144). Dr. Merikangas concluded that Merriweather’s lack of cooperation with counsel is due to an inability to communicate (rather than a deliberate refusal to communicate), and was not the result of malingering. Dr. Merikangas reached the conclusion that Merriweather is not malingering based on two observations: (1) it is difficult to maintain a lie for an extended period of time and Merriweather’s behavior was consistent during his 16-month stay at FMC Butner, and (2) Merriweather has no incentive to lie. (Id. at 1151, 1163). With regard to the first observation, Dr. Merikangas stated that “the real determinative thing is to have observations of the patient over a period of time as there are very few people who can totally fake their illnesses in ways that are consistent with their disease under 24-hour observation for weeks and months at a time.” (Id. at 1126). 23 Dr. Merikangas did not observe Merriweather during his 16-month stay in Butner, so his opinions regarding Merriweather’s behavior over that time period are given less weight than the findings of those who actually observed Merriweather over that extended period of time. When 23 The court finds this statement perplexing given Dr. Merikangas’s opinion regarding Dr. Berger’s evaluation in this case. Dr. Merikangas, who interviewed Merriweather for no more than two hours (Tr. Vol. VII, 1129), criticized the evaluation by Dr. Berger, who interviewed Merriweather over the course of 16 months, as “negligent” (Tr. Vol. VII, 1145), “deficient,” and “incompetent.” (Tr. Vol. VII, 1152). The court concludes that, even applying Dr. Merikangas’ “real determinative” test, Dr. Berger was in a much better position to evaluate Merriweather on a consistent basis. 31 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 32 of 74 asked whether he thought Merriweather has an incentive to malinger, Dr. Merikangas initially testified that Merriweather has no incentive to misrepresent his current mental capacity because the result of this competency determination will merely decide whether Merriweather spends the rest of his life in prison or the rest of his life in a hospital setting. (Tr. Vol. III, 1163). Of course, Dr. Merikangas’s response makes clear that he failed to take into account that the death penalty is being sought in this case. 24 The court rejects Dr. Merikangas’s opinion that Merriweather has no incentive to malinger in this case. (Id. at 1163-64). 6. Dr. Merikangas opined that Merriweather is not competent to stand trial because of his psychosis due to schizophrenia and his inability to cooperate with counsel. 25 (Tr. Vol. III, 1144). 7. In reaching his conclusion that Merriweather is afflicted with psychosis due to schizophrenia, Merikangas relied upon MRI and PET scan images. 26 While testifying about his interpretation of the MRI and PET scan images, Dr. Merikangas directed attention to thinning in the posterior corpus callosum and atrophy in the right parietal lobe. (Tr. Vol. VII, 1135-36, 1138). However, Dr. Merikangas acknowledged that the thinning of cerebral tissue like that observed in the images could be symptomatic of a large number of medical conditions, including but not limited to 24 Given Dr. Merikangas’s vehement opposition to the death penalty (discussed more fully below), the court concludes he would have to be extremely naive to not have comprehended that the United States seeks imposition of the death penalty in this case. The court does not believe Dr. Merikangas is so naive. 25 Again, the ultimate question of whether Merriweather is competent to stand trial is a legal determination that the court must make. 26 All of the medical experts, including Dr. Merikangas, agree that brain imaging cannot be used to diagnose schizophrenia. (Tr. Vol. VII, 1137, 1139-40, 1188). While Dr. Merikangas testified that brain imaging can reveal abnormalities commonly found in people with mental diseases, such as schizophrenia, or any other disease that affects the brain (which is to say that brain imaging can reveal brain abnormalities in people with brain abnormalities), he cautioned that these images should not be used to reach a diagnosis. (Tr. Vol. VII, 1139-40). “There is,” Dr. Merikangas admitted, “no objective test for schizophrenia.” (Tr. Vol. VII, 1207). 32 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 33 of 74 lupus, autoimmune diseases, post-encephalitis, some types of demyelinating disease, traumatic brain injuries, a viral infection that affects the brain (such as measles or HIV), and metabolic disturbances like thyroid diseases or disorders of calcium metabolism. (Tr. Vol. VII, 1141). 8. Furthermore, Dr. Merikangas cautioned that he did not conduct the scans himself, and that the images he presented to the court are “for illustrative purposes.” He noted that he “wouldn’t presume to look at [the scans] and say [he] c[ould] make a diagnosis from these tiny images.” (Tr. Vol. VII, 1139-40). Dr. Merikangas then proceeded to diagnose “psychosis because of schizophrenia” based on the MRI and PET scan images. (Tr. Vol. VII, 1141-42). Dr. Merikangas noted that the type of atrophy observed in the images is frequently seen in patients with schizophrenia. (Id. at 1134-39). He further testified that the brain abnormalities observed cannot be the result of teenage or adult substance abuse because studies have shown that the brain abnormalities caused by illicit substances are of an entirely different nature. (Id. at 1142). 9. Dr. Merikangas conceded that a schizophrenic can still be found competent to stand trial, citing in particular the case of Ted Kaczynski. 27 (Tr. Vol. VII, 1156). 10. Since 1998, Dr. Merikangas has testified in 97 murder proceedings, twice for the prosecution or the court and 95 times for the Defense. (Tr. Vol. VII, 1165). He acknowledges that he is a staunch opponent of the death penalty, and believes it should be abolished. (Tr. Vol. VII, 1165-66. As the Government correctly notes, his lectures and scholarship suggest he has an agenda. 27 Theodore John “Ted” Kaczynski (born May 22, 1942), also known as the “Unabomber,” is an American terrorist, mathematician, social critic, anarchist, and Neo-Luddite. Between 1978 and 1995, Kaczynski engaged in a nation-wide bombing campaign against modern technology, planting or mailing numerous home-made bombs, killing three people and injuring 23 others. See generally, Adam K. Magid, The Unabomber Revisited: Reexamining the Use of Mental Disorder Diagnoses as Evidence of the Mental Condition of Criminal Defendants, 84 IND. L.J. SUPPLEMENT 1 (2009) (discussing the implications of a diagnosis of paranoid schizophrenia on the criminal proceedings against Theodore Kaczynski). 33 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 34 of 74 (See Doc. #152 at 40; citing Tr. Vol. VII, 1167-69). Suffice it to say that of all the mental health experts who testified, Dr. Merikangas was the least objective. 11. After meeting with Merriweather and reviewing the brain scans, Dr. Merikangas recommended that Merriweather be prescribed a anti-psychotic and mood-stabilizing drugs. (Tr. Vol. VII, 1142). Based on one and a half to two hours spent with Merriweather, Dr. Merikangas concluded that Merriweather suffers from a mental disease, most likely schizophrenia, should be medicated, and is not competent to stand trial. (Id. at 1143-44). 4. Dr. C. Thomas Gualtieri 1. In accordance with Judge Ott’s order requiring Merriweather’s competency evaluation at FMC Butner to include input by a neurologist and/or a neuropsychiatrist (Doc. #79 at 14), Dr. C. Thomas Gaultieri, a board certified psychiatrist with 42 years of medical experience, was asked by FMC Butner’s chief psychiatrist, Dr. Jean Zula, to conduct an independent neuropsychiatric evaluation of Merriweather while he was at FMC Butner. (Tr. Vol. III, 381, 385; Gov’t Ex. 5 & 6). 2. Dr. Gualtieri’s evaluation consisted of an approximately two and a half to three hour interview and testing conducted on May 19, 2010. (Tr. Vol. III, 389-99). During Dr. Gualtieri’s evaluation, Merriweather was calm, polite, attentive, sufficiently groomed, spoke in a level voice, and was able to appropriately sit in his chair and establish good eye contact. (Tr. Vol. III, 401-02, 463, 498, 502; Gov’t Ex. 6, 7, and 8). 3. When engaged in small talk with Dr. Gualtieri, Merriweather behaved appropriately and gave straightforward answers. (Tr. Vol. III, 401). When questioned about the robbery or other serious matters, however, Merriweather became evasive, playful, and nonsensical. (Tr. Vol. III, 402; Gov’t Ex. 6, 7, and 8). Similar to his behavior during the videotaped interviews 34 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 35 of 74 with Dr. Berger, Merriweather’s responses to Dr. Gualtieri’s questions were often circuitous, circumstantial, and flowed like a stream of consciousness. (Tr. Vol. III, 402, 452-54; Gov’t Ex. 6, 7 and 8). Dr. Gualtieri detected, however, that Merriweather was “focused very clearly during the entire evaluation on what was in his interests.” (Tr. Vol. III, 403). 4. Dr. Gualtieri testified that Merriweather’s test results suggest that Merriweather was malingering. (Tr. Vol. III, 417). Dr. Gualtieri found that Merriweather had performed well on hard tests, but poorly on easy tests, a pattern that he associated with malingering. (Tr. Vol. III, 417). Merriweather performed worse in subsequent administrations of the Verbal Fluency Test, which suggested malingering to Dr. Gualtieri. (Tr. Vol. III, 421). When interpreting tests for malingering, Dr. Gaultieri emphasized that not finding malingering on a malingering test does not necessarily mean that the person is not malingering. (Tr. Vol. III, 423). 5. Based on his interview, test results, and a review of relevant literature, Dr. Gualtieri testified that he thought that Merriweather is competent to stand trial. 28 (Tr. Vol. III, 438-39). 6. During cross-examination, the Defense drew the court’s attention to Wyatt v. Rogers, 985 F. Supp. 1356, 1387 n.109 (M.D. Ala. 1997), a case in which a court discredited Dr. Gaultieri’s expert testimony. In that case, the Wyatt court discredited Dr. Gaultieri’s testimony “because of an attempt to mislead [the court], through charts purporting to give a national average, that was in fact not such an average” and a “failure to correct known error that went to the substance of some very important conclusions.” Id. This court has conducted a thorough review of the 28 At the risk of redundency, the court again notes that the ultimate question of whether Merriweather is competent to stand trial is a legal determination that the court must make. 35 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 36 of 74 transcripts in Wyatt, and finds that the reasons given for discrediting Dr. Gualtieri’s testimony in Wyatt are far wide of the mark; accordingly, the court gives this attempt at impeachment of Dr. Gualtieri no weight whatsoever. 29 29 Defendant’s challenges to Dr. Gualtieri’s credibility is based upon a footnote in an opinion in Wyatt. As a judicial officer in this case, and a practitioner in this state before appointment, the undersigned is simply not in a position to accept at face value the Wyatt credibility determination without understanding its context. For this reason, the court required Defendant to provide the court with the relevant trial transcripts where Dr. Gualtieri testified in Wyatt. (Tr. Vol. III, 469). The court notes that Dr. Gualtieri strongly disagreed with the Wyatt court’s credibility finding. (Tr. Vol. III, 461-63). While expressing great respect for the federal judiciary, Dr. Gualtieri stated his belief that the Wyatt court’s conduct was both wrongheaded and unprofessional. The court will not weigh in on the latter issue. As to the former – wrongheadedness – the court has meticulously reviewed the transcripts and simply does not understand the Wyatt court’s credibility analysis. In Wyatt, by all accounts, the court discredited Dr. Gualtieri’s testimony for two reasons: (1) when testifying about the rehospitalization rates of patients in Alabama mental institutions (Wyatt Tr. 1097:20) compared to rehospitalization rates nationally (Wyatt Tr. 1085:13), Dr. Gaultieri used a chart as demonstrative evidence that included numbers labeled as national averages (Wyatt Tr. 895:24-25); and (2) Dr. Gaultieri gave an inaccurate description of a confrontation between two employees at a mental institution. Regarding the first reason, the Wyatt court objected to the use of the term “national average,” which it seemed to expect to be computed as the simple mean of rehospitalization rates from all 50 states. (Wyatt Tr. 1088:4). As Dr. Gualtieri testified, however, the figures he used to represent national “averages” actually described rates aggregated from available data from other hospitals as compiled by a research paper (William S. Edell et. al., Effects of Long-Term Psychiatric Hospitalization for Young, Treatment-Refractory Patients, 41 HOSP. & COMMUNITY PSYCHIATRY 780 (July 1990 . (Wyatt Tr. 1085:12-16). Although the Wyatt court found this misleading, it is quite clear to this court that Dr. Gualtieri had candidly discussed his methodology on direct examination (Wyatt Tr. 1097:6-9) and no one contested the truth of Dr. Gualtieri’s facts. The confusion surrounding the term “average” is unfortunate, but it appears to have been used, not as an attempt to mislead the court, but as a shorthand for Dr. Gualtieri to convey his principal point: that rehospitalization rates in Alabama mental institutions are lower than in most other states. The second reason the Wyatt court disregarded Dr. Gualtieri’s testimony was that Dr. Gualtieri recited an inaccurate account of a confrontation between two employees at a mental institution. Wyatt, 985 F. Supp. at 1387 n.109 (citing Wyatt Tr. 1313-27). Specifically, Dr. Gualtieri wrote in his report that no knife fights occurred in the presence of children because there were no knife fights at the institution. After preparing his report, Dr. Gualtieri discovered (the week before he testified) that he was wrong, and candidly admitted as much at the hearing. (Wyatt Tr. 1322:5-6). The reason for his mistake is simple, and readily apparent from even a cursory review of the hearing transcript. Dr. Gualtieri called staff at the mental institution, including the center’s director, the center’s clinical director, and the department director of institutions, to ask about the alleged knife fight. (Wyatt Tr. 1314:16-18, 20-21, 23-25). He was assured “that no such thing happened” and relied upon that statement in preparing his report. (Wyatt Tr. 1321:21-22). Dr. Gualtieri may have been wrong, but there is nothing in that case’s record (and nothing in the record here) to support a finding that he made any attempt to deceive the court. The court has articulated its findings on this issue in detail not only because it is important in ruling upon the credibility challenge directed at Dr. Gualtieri, but also for another reason. Oftentimes it is easy for a member of the judiciary to forget the effects such rulings (particularly those not supported by an evidentiary record) can have on third parties’ lives, both professional and personal. The court believes that Dr. Gualtieri is owed at least this: the undersigned has reviewed the relevant portions of the transcripts along with the Wyatt court’s ruling, and categorically disagrees with the Wyatt 36 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 37 of 74 5. Dr. Allan F. Mirksy 1. Dr. Allan F. Mirsky, a neuropsychologist with over 50 years of experience in the field, was, like Dr. Gualtieri, asked to conduct additional psychological testing of Merriweather at FMC Butner pursuant to Judge Ott’s order. (Tr. Vol. VI, 1032, 1043-46). Dr. Mirsky has devoted much of his 50-year career to the study of schizophrenia. (Id. at 1032-43). During his extensive career, Dr. Mirksy conducted three or four other competency determinations before evaluating Merriweather. (Id. at 1085). To evaluate Merriweather’s mental condition, Dr. Mirsky interviewed Merriweather for four to four and a half hours at FMC Butner. (Id. at 1089-90). 2. During the interview, Dr. Mirsky conducted several tests of Merriweather’s mental performance, including tests he developed himself to detect attention deficits. (Tr. Vol. VI, 1045). The first test, the Test of Sustained Attention, measures the ability of the patient to respond to the letter X when it appeared among other letters of the alphabet. (Id. at 1049). The second test, the AX-Test, requires the patient to respond to the letter X if it follows the letter A. (Id.). The third test, the Auditory Tone Test, requires the patient to distinguish one tone from other tones. (Id.). Dr. Mirsky also subjected Merriweather to the Wisconsin Card Sorting Test, the TOMM, the Test of Verbal Fluency, and the Reciprocal Motor Programs Test. (Id. at 1048-50). 3. Merriweather performed poorly on the Test of Sustained Attention, the AX- Test, the Auditory Tone Test, and the Wisconsin Card Sorting Test. (Tr. Vol. VI, 1050). Dr. Mirsky testified during the hearing that he believed the results of these tests were consistent with a diagnosis court’s finding that Dr. Gualtieri intended to mislead that court. 37 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 38 of 74 of schizophrenia. (Id. at 1051). Current research, Dr. Mirsky stated, suggests that schizophrenia is a disease of attention deficits and verbal memory deficits. 30 (Id. at 1043-44). 4. On the other hand, Merriweather performed within the normal range on the TOMM, the Test of Verbal Fluency, and the Reciprocal Motor Programs Test. (Tr. Vol. VI, 1051). Dr. Mirsky interpreted these results to mean that Merriweather was not malingering because “somebody who is faking a disorder just does poorly on everything.” (Tr. Vol. VI, 1051). Furthermore, Dr. Mirsky noted, the TOMM failed to detect malingering. (Tr. Vol. VI, 1048). Dr. Mirksy trusted that Merriweather was not malingering because, he noted, it is very difficult for a person, even one who is familiar with the disease’s features, to mimic the symptoms of schizophrenia. (Tr. Vol. VI, 1060). 5. The Government asserts that Dr. Mirsky never firmly opined that Merriweather was incompetent, only that certain test results suggest that conclusion. (Doc. #152 at 38). In any event, his failure to probe into such things as Merriweather’s understanding of (1) the charges against him, (2) the role of his lawyers, the prosecution, and the court, (3) the facts of the case, (4) the nature of the proceedings, and (5) the elements of the crime (as well as defenses available to him) render his opinion testimony less than helpful. 6. Dr. Edward E. Landis 1. Dr. Edward E. Landis, Ph.D., the deputy chief psychologist at FMC Butner, reviewed and analyzed all psychological testing performed on Merriweather in preparation for Dr. Berger’s evaluation report, including the tests administered by Dr. Mirsky. (Tr. Vol. VIII, 1282, 30 As will be seen below, this is different from the definition provided by Dr. Dudley. (See Tr. Vol. VI, 927-28). 38 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 39 of 74 1286, 1287-88). Dr. Landis has worked at FMC Butner for approximately 25 years and has testified 137 times in criminal proceedings, primarily on competency issues. 2. Dr. Landis criticized Dr. Mirsky’s approach to diagnosing Merriweather with schizophrenia. Rather than observe Merriweather for positive or negative signs of schizophrenia, Dr. Mirsky tested Merriweather’s mental performance and found attention deficits. While there is a theoretical connection between schizophrenia and some lower-level functional processes, such as attention and concentration, attention deficits are not generally accepted as a primary symptom in diagnosing schizophrenia. (Tr. Vol. VIII, 1292). Under current standards and accepted diagnosing criteria, Dr. Landis commented, schizophrenia cannot be diagnosed based on deficits in cognitive processing, such as attention. (Id. at 1298-99). Testing that endeavors to identify deficits in attention, while useful in recovery and rehabilitation, is presently not accepted and will not be accepted in the foreseeable future as part of the differential diagnosis system for diagnosing schizophrenia. (Id. at 1299). 7. Dr. Bruce Berger 1. Reports from Drs. Gualtieri, Mirsky, and Landis were ultimately transmitted to the doctor charged with supervising Merriweather’s evaluation at FMC Butner, Dr. Bruce Berger, a board-certified forensic psychiatrist with more than 20 years of experience. Dr. Berger oversaw Merriweather’s evaluation during which he, with assistance from Dr. Jill Grant and a team of mental health professionals, observed Merriweather every day for 496 days, conducted four videotaped formal interviews, and reviewed the reports by the other expert examiners and collateral source information. (Tr. Vol. IV, 586). Based on this evidence, Dr. Berger concluded that Merriweather’s behavior can be best ascribed to drug use, not a psychotic disorder. On April 1, 2011, Dr. Berger 39 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 40 of 74 issued a report in which he concluded that Merriweather “does currently posses the capacity to understand his current charges, understand courtroom functioning, and could, should he so choose, work affirmatively with his attorney in a rational way…[and that] he is competent to proceed.” (Gov’t Ex. #10 at 10). 2. In reaching his conclusion that Merriweather’s behavior results from drug use (as opposed to a psychotic disorder), Dr. Berger considered Merriweather’s history of substance use. During his initial interview, Merriweather reported that he had used substances, such as alcohol, marijuana, and cocaine, on a daily basis before the robbery. (Tr. Vol. IV, 604). Such drugs were not available to him during his stay at FMC Butner and Merriweather had never been prescribed psychotropic medication before arriving at FMC Butner, nor was he placed on any medication during his stay at FMC Butner (with the exception of a cream for dry skin, medication for constipation, and a nutritional supplement). (Id. at 588). 3. During Merriweather’s 496-day stay at FMC Butner, a time when he was neither treated for mental illness nor under the influence of drugs, Merriweather was generally not observed to exhibit psychotic behavior. Although Dr. Berger acknowledged that there might have been, at most, a nurse’s note suggesting that Merriweather may have been responding to internal stimuli, Dr. Berger never observed Merriweather responding to stimuli nor were there any consistent reports of such symptoms from his staff. (Tr. Vol. IV, 598). Eugene Singleton, who interacted directly with Merriweather on a daily basis as one of several staff members who (while working) checked on Merriweather every 15 minutes, observed no significant behavioral problems. (Tr. Vol. VIII, 1266-67). Singleton noted simply that Merriweather’s behavior was fairly ordinary for someone waiting his time. (Id. at 1266). Consistent with Singleton’s observations, Dr. Berger 40 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 41 of 74 mentioned that Merriweather maintained a clean cell (Id. at 1266-67, 1272), maintained acceptable hygiene (Tr. Vol. IV, 593-94), and exhibited no positive or negative signs of schizophrenia. (Id. at 593-94, 597-98, 610-11, 618, 621). Merriweather’s speech pattern was clear and sophisticated (id. at 602, 605-06), and he had no difficulty communicating with staff. (Id. at 596-97). 4. Indeed, many of Merriweather’s actions indicate a rational mind at work. Merriweather re-positioned the bed in his cell for greater privacy. (Tr. Vol. IV, 594, Tr. Vol. VIII, 1272-73). As an additional assurance of privacy, he posted a “no solicitation” sign on his door. (Tr. Vol. IV, 598-99). When he obtained a radio that was non-operational, Merriweather was able to successfully reconfigure it to work with the type of battery available to him. (Id. at 614). To pass the time, Merriweather also would often request novels and magazines to read. (Tr. Vol. VIII 1268- 69). 5. However, Merriweather also engaged in curious behavioral patterns that might potentially raise a suspicion of mental illness. Specifically, Merriweather, while at FMC Butner, as in other facilities, would undergo periods of protracted muteness, abstain from eating, and speak incoherently during taped interviews. (Tr. Vol. IV, 599, 589-93, 601-10). 6. Nonetheless, although he considered the possibility that Merriweather might be suffering from mental illness, in light of Merriweather’s demonstrated capacity for rational behavior, Dr. Berger eventually came to conclude that Merriweather’s infirmities were feigned. 7. With regard to Merriweather’s periods of protracted muteness, Dr. Berger explained that there is a difference between actual mutism and selective silence. Actual mutism refers to a situation where a patient cannot speak, even if the patient desires to communicate. (Tr. Vol. III, 433; Tr. Vol. IV, 599). Selective silence, on the other hand, describes a situation where a 41 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 42 of 74 patient is able to communicate when he chooses, but chooses not to communicate when it suits him. (Id. at 430). Dr. Berger found Merriweather able to communicate when it served Merriweather’s own interests. (Tr. Vol. IV, 596-97, 616). Therefore, Dr. Berger concluded that Merriweather’s silence was not a symptom of a mental disorder, but rather manipulative behavior. (Id.). 8. Similarly, Dr. Berger considered Merriweather’s eating patterns to be less indicative of a mental disorder than of a strong will and a willingness to use nutrition as leverage to attain his goals. Merriweather consumed both sealed, pre-packaged meals (e.g., Ensure, T.V. dinners) as well as the regular trays provided at FMC Butner, so it did not appear that he was actually concerned about being poisoned. (Tr. Vol. IV, 591). He did, however, twice alter his eating habits in order to force the facility to place him under higher surveillance, which in turn meant that he was reassigned to a better cell. (Id. at 591-92, 617, 663). 9. Dr. Berger noted that Merriweather was calm and collected during the interviews, which was not something he would expect from someone who was decompensating. (Tr. Vol. IV, 605). After the first two interviews, Merriweather refused further interviews until Judge Ott issued an order compelling Merriweather to participate in the videotaped interviews. (Tr. Vol. IV, 606). During the recorded interviews, Merriweather pretended not to know who Dr. Berger was, despite communicating with him without difficulty on a daily basis when not being videotaped. (Id. at 601-04, 608-10; Gov’t Ex. #11). Merriweather was focused when the conversation was about routine matters. (Id. at 593). These behaviors led Dr. Berger to ultimately conclude that 42 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 43 of 74 Merriweather was not mentally ill, and that his unusual behavior represented various attempts to manipulate his environment. 31 (Id. at 601-09). 8. Jack Earley Mr. Jack Earley, a California-based public defender retained by the Defense, accompanied Defense Counsel – Mr. Jaffe and Mr. Drennan – to see Merriweather on June 27, 2011. (Tr. Vol. V, 819). Merriweather was initially unresponsive; however, as the three began to leave, a guard stopped them and told them that Merriweather recognized Mr. Jaffe and wished to speak with him. (Tr. Vol. V, 822). This eventually led to a conversation that lasted hours. (Tr. Vol. V, 823). Among the issues discussed during the conversation, Mr. Earley recalled that Merriweather was dismissive of the efficacy of retaining additional medical experts, telling his lawyer that “the judge was the one that was going to make the ultimate decisions in the case, and the judge didn’t need to hear from defense lawyers or a defense doctor, especially since he already had doctors that he could rely upon.” (Tr. Vol. V, 833). Earley testified that Merriweather’s speech during this conversation, while somewhat incoherent to others, seemed organized to Merriweather. (Id. at 838). II. The Standard of Review This case presents a question regarding whether the Government bears the burden of establishing competency, or whether Merriweather bears the burden of establishing that he is incompetent. The language of Section 4241 is silent on this point, noting only that the court must find by a preponderance of the evidence that a defendant is incompetent to stand trial. The legislative history is also silent. “The Senate Report simply states: ‘Subsection (d) of section 4241 31 Although the Defense argues that he ignored nursing charts in performing his evaluation, Dr. Berger clarified that he reviewed the nurses’ progress notes and spoke directly to the nursing staff about Merriweather. (Tr. Vol. IV, 645). Moreover, Dr. Berger had prescribed that his staff check on Merriweather every 15 minutes. (Tr. Vol. VIII, 1266-67). 43 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 44 of 74 provides that the court must make a determination with respect to [a] defendant’s competency based upon a preponderance of the evidence.’” United States v. Gigante, 996 F.Supp. 194, 199 (E.D.N.Y. 1998) (“Legislative history does little to provide additional guidance.”). In Cooper v. Oklahoma, 517 U.S. 348 (1996), the Supreme Court briefly addressed this issue, albeit in dicta. The Court held that an Oklahoma statue requiring defendants to prove incompetence to stand trial by clear and convincing evidence violated a defendant’s due process rights under the Fourteenth Amendment. Id. at 356, 369. In the context of a discussion on the varying burdens of proof required in the fifty states, the Court noted: Indeed, a number of States place no burden on the defendant at all, but rather require the prosecutor to prove the defendant’s competence to stand trial once a question about competency has been credibly raised. The situation is no different in federal court. Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence. 18 U.S.C. § 4241. Id. at 361-62 (emphasis added). As the Eleventh Circuit has also noted, “a petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence.” Battle v. United States, 419 F.3d 1292, 1298 (11th Cir. 2005), quoting Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995) (internal quotations and citations omitted). The Government’s position is that it should assume the burden of proof (based upon a preponderance of evidence standard) in this case. The court agrees. As indicated in a previous order (Doc. #133), the court recognizes that there is a split of authority on the question, but has carefully reviewed the statute, the relevant case law, and the parties’ arguments. After doing so, the court concludes that the decision in United States v. Talley, 2010 WL 4791821 (S.D. Fla. 2010) is well- 44 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 45 of 74 reasoned and correctly decided. Thus, this court finds that the burden of proof at a pretrial competency hearing rests squarely on the Government and that United States v. Makris, 535 F.2d 906 (5th Cir. 1976), is binding precedent on this court. 32 Moreover, the holding in Makris fits here — not only legally, but also logically. That is, the Makris holding best serves to protect a charged 33 defendant’s interests and protects his rights. III. Analysis of Whether Defendant is Competent to Stand Trial For the reasons explained below, the court finds the Government has met its burden in establishing that Defendant is competent to stand trial. This court finds that Merriweather is not presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable (1) to understand the nature and consequences of the proceedings against him or (2) to assist properly in his defense. For these reasons, the court finds by a preponderance of the evidence that Defendant Merriweather is competent to stand trial and, accordingly, a trial date will be set by future order. 32 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 33 In United States v. Makris, 535 F.2d 899 (5th Cir. 1976), the former Fifth Circuit reviewed a trial court’s determination that a criminal defendant who had undergone brain surgery was competent to stand trial under 18 U.S.C. § 4244, the predecessor statute to 18 U.S.C. § 4241. While reviewing the defendant’s contention that the government had to prove his competence beyond all reasonable doubt, the court in Makris noted that “[t]here can be no question that in federal criminal cases the government has the burden of proving defendant competent to stand trial at the § 4244 hearing or its nunc pro tunc substitute.” Id. at 906. The court is aware that Eleventh Circuit cases after Makris have since found that placing the burden of proving incompetence on the defendant does not violate his due process rights. See e.g. United States v. Bradley, 644 F.3d 1213, 1268 (11th Cir. 2011); United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006); Battle v. United States, 419 F.3d 1292, 1298 (11th Cir. 2005); Medina v. Singletary, 59 F.3d 1095, 1106 (1995). But, quite obviously, if placing the burden of proof on the defendant does not violate his due process rights, then surely placing the burden of proof on the government offends no constitutional rights of the accused. Indeed, such a shifting of the burden is even more protective of a defendant’s rights. 45 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 46 of 74 Therefore, Defendant’s Motion (Doc. #65) is due to be denied with respect to his request that the court find Defendant incompetent to stand trial. The law is well-settled: “a criminal defendant may not be tried unless he is competent.” Godinez v. Moran, 509 U.S. 389, 396 (1993); Drope v. Missouri, 420 U.S. 162, 172-73 (1975); see also United States v. Sanchez-Ramirez, 570 F.3d 75, 80 (1st Cir. 2009). “Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial.” Riggins v. Nevada, 504 U.S. 127, 139 (1992) (Kennedy, J. concurring in judgment) (citing Drope, 420 U.S. at 171-72). This fundamental protection is secured by the Fifth Amendment’s Due Process Clause. United States v. Rahim, 431 F.3d 753, 759 (11th Cir. 2005). In the seminal case in this area, Dusky v. United States, 362 U.S. 402 (1960), the Supreme Court held that competency to stand trial depends upon whether a criminal defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.” Id. at 420. In Dusky the court announced the two- pronged standard for determining a defendant’s competency to be “whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” , 402 (1960). Dusky remains the law. See Cooper v. Oklahoma, 517 U.S. at 354 (“The test for incompetence is also well settled”); Godinez, 509 U.S. at 402 (rejecting multiple standards in favor of the “Dusky formulation” as the standard for determining competency); 18 U.S.C. § 4241(a) (codifying the Dusky standard for determination of mental competency to stand trial ); United States 34 34 See Insanity Defense Reform Act of 1984, Sen. R. No. 98-225, at 236 (1983), reprinted in 1984 U.S.C.C.A.N. (98 Stat.) 3182, 3418 (“This test of competency, in essence, adopts the standards set forth by the Supreme Court in Dusky v. United States.”); see also United States v. Wiggin, 429 F.3d 31, 37 n. 8 (1st Cir. 2005). 46 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 47 of 74 v. Cruz, 805 F.2d 1464, 1479 (11th Cir. 1986) (reaffirming the Dusky standard in the Eleventh Circuit). A. The Statutory Standard for Competency to Stand Trial Title 18 U.S.C. §§ 4241 and 4247 of the United States Code set forth the procedures for determining whether a defendant is competent to stand trial. The court must first conduct a competency hearing in accordance with 18 U.S.C. § 4247(d). 35 If the court finds that the defendant is incompetent to proceed to trial, it must then commit the defendant to the custody of the Attorney General for “treatment in a suitable facility,” for a “reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future [the defendant] will attain the capacity to permit the trial to proceed.” 18 U.S.C. § 4241(d)(1). Section 4241(d) outlines a two-prong legal standard for determination of a defendant’s mental competency to stand trial: If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable [1] to understand the nature and consequences of the proceedings against him or to the custody of [2] to assist properly in his defense the court shall commit the [for defendant hospitalization].... Determination of Mental Competency to Stand Trial, 18 U.S.C. § 4241(d) (2006) (emphasis added and spacing modified). the Attorney General 35 Section 4247(d) provides that the defendant “shall be represented by counsel” and “shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at the hearing.” Id. Those requirements were satisfied at the hearing on these matters. 47 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 48 of 74 Section 4241 legislatively adopted the standard articulated by the Supreme Court in Dusky. See United States v. Wiggin, 429 F.3d at 37 n. 8. B. Summary of Credibility Findings The Government has sought to show that, although Merriweather may have experienced drug-related psychotic symptoms in the past, he is not presently suffering from a mental disease or defect. (Doc. #152 at 10). Rather, the Government insists that Merriweather’s current symptoms are feigned and his apparent inability to communicate with Defense counsel is deliberate. On the other hand, the Defense urges that Merriweather is afflicted with schizophrenia as evidenced by his alleged history of hallucinations, odd behavior, and his lack of engagement with counsel. After thoroughly reviewing the available evidence, including reports and records submitted by the parties, video recordings of Merriweather’s interviews at FMC Butner, carefully considering testimony delivered at the hearing, and applying the governing legal standards, the court concludes that the Government has carried its burden of proving by a preponderance of the evidence that Merriweather is not currently suffering from any mental disease or defect, including schizophrenia. In reaching this determination, the court has analyzed conflicting testimony from multiple expert witnesses. Because the court has been tasked with resolving conflicts among competing interpretations of fact, it is worth explaining here how much weight the court gave to each of the expert witnesses who testified at the hearing. The court does so not only to make its reasoning behind this decision more transparent, but also because the Defense has attacked the professional credibility of all of the expert witnesses called by the Government 36 by accusing them of having 36 The Defense has specifically attacked the credibility of Drs. Pietz, Berger, and Gualtieri. (Doc. #156 at 38-42). 48 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 49 of 74 performed their duties with “extreme negligence.” (Doc. #156 at 42). Such accusations should not be made lightly; once they are made, they must be evaluated seriously. The main reason the Defense provides for asserting that Drs. Pietz, Berger, and Gualtieri have acted with “extreme negligence” is that each one of them ultimately found that Merriweather does not have schizophrenia. (Doc. #156 at 39-41). 37 The loose bolt in the logic is the assumption that finding some symptoms commonly present in a particular disease or condition should automatically lead to a diagnosis of that disease. First, common experience (and common sense) teaches that many conditions may share the same symptomatology. Second, common sense also teaches that many symptoms can be faked. Doctors, by virtue of their training and experience, may use their extensive medical knowledge to identify a diagnosis that best fits the observed symptoms. Therefore, while it is true that Drs. Pietz, Berger, and Gualtieri have each testified that some of the 37 In essence, the structure of this syllogism follows a peculiar logical pattern: 1.) 2.) 3.) Merriweather’s symptoms include X, Y & Z; Symptoms X & Y could indicate schizophrenia, though other explanations exist; and Therefore, it follows that all of these doctors must have acted with extreme negligence when they ultimately concluded that symptoms X & Y are better explained by something other than schizophrenia. For obvious reasons, this argument fails, at least in part because of its faulty logic. For example, the Defense could just as well argue that it would be “extremely negligent” to conclude that Merriweather does not have a condition like ovarian cancer because: 1.) 2.) 3.) Merriweather’s symptoms include significant weight loss and loss of appetite; Significant weight loss and loss of appetite could indicate ovarian cancer, though other explanations exist; and Therefore, all of these doctors must have acted with extreme negligence when they ultimately concluded that Merriweather’s weight loss and loss of appetite are better explained by something other than ovarian cancer. Clearly, something is amiss. (Note: the court understands that this analogy leads to an absurd result – but that is the point.). 49 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 50 of 74 behaviors arguably exhibited by Merriweather could be interpreted to be consistent with a diagnosis 38 of schizophrenia, they all found that those behaviors are better explained by other causes.39 Here the court is confronted with competing (and irreconcilable) opinions by two groups of expert witnesses. In the unique context of this case, the court concludes that a significant factor to consider is the familiarity and exposure each expert witness had with (and to) Merriweather, the thoroughness of the evaluation performed, and the care with which the respective experts reached their conclusions. Because of the particular set of facts in this case, 40 there was one measurement that effectively encapsulated all of these criteria: the duration of continuous interaction between the expert and Merriweather. The validity of using the amount of time spent with Merriweather in evaluating an expert witness’ credibility is undisputed between the parties. Indeed, the Defense has suggested that the court should completely discredit the evaluations conducted by Dr. Gualtieri because “[h]is exposure to Merriweather was limited.” (Doc. #156 at 42). However, what is sauce for the goose is sauce for the gander; if the court were to discredit every expert witness who had limited exposure to Merriweather, it would have to discredit all of the Defense’s expert witnesses. The court declines to go so far. But the court does note that, in this classic battle of the experts, the 38 Actually, each of the experts called by the Government did not conclude that Merriweather exhibits symptoms of schizophrenia. When asked by Defense counsel whether certain symptoms are considered consistent with schizophrenia, they merely affirmed that those symptoms are commonly accepted symptoms of schizophrenia. (See Tr. Vol. I, 111-12; Tr. Vol. IV, 666; Tr. Vol. III, 549). The experts, however, at other points of their testimony denied that Merriweather exhibited those symptoms. (See Tr. Vol. I, 46-47; Tr. Vol. IV, 663-64; Tr. Vol. III, 436). So Defendant’s claim that “each expert, Defense and Government, testified that Mr. Merriweather showed signs of these positive and negative symptoms [of schizophrenia]” is simply off the mark. 39 Of course, the acknowledgment by these doctors that they recognize the existence here of certain symptoms of schizophrenia that actually may be rough indicators of that condition only serves to bolster the credibility of their final assessments because they have shown that they considered, but separately and affirmatively rejected, the conclusion that these manifestations point to a diagnosis of schizophrenia. 40 Namely, the court notes the great disparity between the amount of time Drs. Pietz and Berger invested in evaluating Merriweather, and the time spent by all other expert examiners. 50 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 51 of 74 witnesses called by the Government were necessarily able to spend much more time evaluating Merriweather. The maximum estimated time spent cumulatively by all of the Defense’s expert witnesses with Merriweather amounts to less than one day. 41 Dr. Pietz’s evaluation lasted 75 days. Dr. Berger’s evaluation took place over 496 days. Because Drs. Pietz and Berger have each individually spent more time evaluating Merriweather than all the other medical experts combined, the court gives substantial credit to their testimonies. In particular, where conflicts in expert witness testimony arose concerning Merriweather’s abilities, the court has given more weight to the testimonies of Drs. Pietz and Berger over those of the other expert witnesses. 42 After carefully reviewing the evidence, the court makes the following findings. C. Merriweather Does Not Currently Suffer from Schizophrenia The Defense argues that Merriweather currently suffers from schizophrenia and that his schizophrenia is evidenced by the following symptoms: 43 (1) hallucinations, (2) mutism, (3) poor hygiene, (4) flat affect, and (5) weight loss. To bolster this argument, the Defense asserts that these symptoms are valid because tests showed that Merriweather was not malingering. (Doc. #156 at 43). The Defense also argues that brain scans provided objective evidence that Merriweather has schizophrenia. For the following reasons, the court finds none of these arguments hold water. 41 The sum total of the time spent by Drs. Merikangas (1.5 hours), Dudley (16 hours), and Mirsky (4.5 hours) amounts to 22 hours. 42 The court is quick to note that the amount of time spent with Merriweather is but one of the factors the court has considered in crediting the testimony of Drs. Pietz and Berger. Indeed, the court was impressed with the testimony of Drs. Pietz and Berger, particularly the latter. Of all the experts called to testify, Dr. Berger appeared to be the most balanced and careful. He was not an “advocate” in any sense. 43 While Defendant’s brief states that “each [expert] testified that behaviors they witnessed could be a positive or negative symptom of schizophrenia,” it never explicitly enumerates which behaviors are believed to evidence schizophrenia. (Doc. #156 at 37). Consequently, the court has scoured the record for all relevant behaviors discussed at the hearing. 51 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 52 of 74 1. Hallucinations The court has counted five specific instances where Merriweather was alleged to have 44 responded to internal stimuli (hallucinations). As explained more fully below, four of these alleged incidents are discredited; and the other one coincided with his illicit drug use. The first incident was described by Merriweather’s former girlfriend, Latisha Simpson, who testified that Merriweather experienced “visions and hallucinati[ons].” (Tr. Vol. III, 554). Further questioning revealed that Simpson’s statement about “visions and hallucinati[ons]” actually referred to one bad dream. (Id.). Another incident that could arguably be described as a hallucination was Merriweather’s mention of an alleged accomplice named “Charlie” during his recollection of the robbery in interviews with Dr. Pietz. (See Tr. Vol. I, 32-33; Doc. #24 at 15). Dr. Pietz dismissed these accounts as an attempt by Merriweather to deflect responsibility for the robbery and noted that Merriweather stopped talking about “Charlie” after she pointed out discrepancies between Merriweather’s account and the investigative record. 45 (Tr. Vol. I, 35). 44 Dr. Dudley and Dr. Merikangas have mentioned non-specific accounts of Merriweather responding to internal stimuli, but these accounts are insufficiently detailed for the court to evaluate them. Dr. Dudley testified during the hearing that Merriweather appeared to be responding to internal stimuli when he visited him in 2009. (Tr. Vol. VI, 943). However, no mention of internal stimuli was included in Dr. Dudley’s affidavit (Tr. Vol. VI, 965) and further prodding revealed that “internal stimuli” to Dr. Dudley simply referred to “something that was causing [Merriweather] to smile.” (Tr. Vol. VI, 965, 1084). Dr. Merikangas similarly testified that he saw Merriweather “responding to some internal stimulus,” but cautioned that he “didn’t know what it was.” (Tr. Vol. 1149). Without more information, the court cannot reach any conclusions about these facts without engaging in armchair speculation, which this court declines to do. 45 One may be led to suspect that Merriweather conceived of “Charlie” following his initial interview at the Jefferson County Jail. (See Def. Ex. #16 at 88). The name is also shared by a sister-in-law of a family friend. (See Def. Ex. #109 at 1). In any case, eyewitness accounts make it clear that there was no accomplice. (Def. Ex. #13). Moreover, after carefully listening to the tape of the police interrogation where “Charlie” was referenced (Def. Ex. 17), the court concludes that this creation by Merriweather was an attempt at deception, not the result of hallucination. 52 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 53 of 74 The third incident also occurred during Merriweather’s evaluation at MCFP Springfield. On a single occasion, Merriweather told the on-call psychologist, Dr. Leanne Preston, that he thought he might be suicidal and reported seeing gremlins. (Tr. Vol. I, 39). Dr. Preston wrote in her report that she found Merriweather’s claim of seeing gremlins to be suspicious. (Tr. Vol. I, 40). Dr. Pietz was similarly skeptical of Merriweather’s claim for at least five reasons: (1) visual hallucinations are more consistent with illicit substance abuse than psychosis; (2) in the rare cases where an individual actually experiences a visual hallucination, the hallucination is usually frightening and not casually mentioned; (3) people who complain about suicide are typically not actually suicidal since drawing attention to their suicidal inclinations increases the risk that their suicide attempts will be intercepted; (4) after being placed under suicide watch, Merriweather became primarily concerned about the loss of privacy and requested to be taken off suicide watch, and (5) where true hallucinations never completely go away, Merriweather never again mentioned gremlins. The court finds Dr. Pietz’s reasoning persuasive and concludes that Merriweather’s claim of seeing gremlins was most likely pretense. The fourth incident that could potentially be interpreted as a hallucination was a single occasion when Merriweather was found scraping his arms with a spork and complaining that there were bugs in the room. (Tr. Vol. I, 42). Merriweather mentioned the bugs casually and never complained about bugs in his cell again. (Id.). For the same reasons she discounted Merriweather’s account of gremlins, Dr. Pietz found this claim similarly suspect. Finally, the fifth incident was related by Merriweather’s sister, Kim Patton, who testified that sometime in either late 2001 or 2002, Merriweather told her that he was hallucinating that there were demons in everybody, including members of his family. (Tr. Vol. II, 299-300). Patton suspected 53 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 54 of 74 drug use, which Merriweather confirmed when Patton raised the question. (Tr. Vol. II, 300). From a review of the record, the court finds that the best theory to explain the association between Merriweather’s hallucinations and his substance abuse is that his substance abuse caused his hallucinations. It is largely uncontested that Merriweather has used illicit substances. During interviews with Dr. Pietz, Merriweather described a history of substance abuse that began with alcohol at age 14, grew to include marijuana at age 17, and expanded to included cocaine, crystal methamphetamine, and ecstasy by age 22. (Tr. Vol. I, 43). He also acknowledged using “various pills” and injecting heroin intravenously. (Id.). Following the robbery, Merriweather tested positive for opiates while being treated at UAB Hospital. (Def. Ex. #15 at 18). There is also a correlation between Merriweather’s history of substance abuse and reports of his odd behavior. As already noted, Merriweather’s complaint to Patton that he was seeing hallucinations was followed by an admission that he had been taking drugs. (Tr. Vol. II, 300). Similarly, when Merriweather told his father that he was hearing voices, it was revealed that Merriweather had been taking drugs. (Doc. #24 at 7). According to Dr. Pietz, hallucinations are actually quite rare, and, in any event, more consistent with illicit drug use than psychosis. (Tr. Vol. I, 40). Substances such as marijuana, cocaine, crystal methamphetamine, alcohol, and ecstacy can cause psychotic symptoms to develop and persist for years after direct drug use has ceased. (Tr. Vol. I, 40, 43, 121-22, 159, 163; Tr. Vol. IV, 604). Given that hallucinations are more likely to arise from drug use than from actual psychosis, and that prolonged drug use can cause hallucinations and psychotic-like symptoms long after the consumption of such drugs has ceased, it is reasonable to conclude that someone who has 54 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 55 of 74 not only had a history of extensive drug use, but a history of hallucinations that coincided with that 46 drug use, most likely suffers from hallucinations (to the extent that he suffers from actual hallucinations rather than dreams) because of substance abuse, not a mental disease. The court finds this is the case here and, therefore, the court adopts the findings of Drs. Berger and Pietz that Merriweather’s psychotic-like symptoms are most likely drug-induced, not the product of a mental disease. 2. Mutism It is not clear whether the Defense has raised Merriweather’s refusal to communicate with Drs. Dudley and Merikangas solely for the argument that Merriweather’s lack of engagement amounts to mutism, a negative symptom of schizophrenia, or the Defense seeks to show that Merriweather’s alleged mutism renders him unable to assist counsel. In any case, both arguments miss the mark. The great weight of the evidence indicates that Merriweather is not actually mute. As Dr. Berger explained, there is a difference between actual mutism and selective silence. People who are actually mute cannot speak whereas people who are selectively silent can speak, but choose not to when it suits them. (Tr. Vol. III, 430; Tr. Vol. IV, 599). Dr. Berger found that Merriweather was being selectively silent. (Tr. Vol. IV, 596-97; Def. Ex. #51 at 1) (Merriweather was “mute with most of the staff but, ... [was] interested and willing to discuss” what Dr. Berger wrote in his report.). Medical and correctional professionals who observed Merriweather, such as Diana Shirley, Kelly 46 The court notes that while interacting with Dr. Mirsky, Merriweather never self-reported any hallucinations or delusions. (Tr. Vol. VI, 1090-91). Indeed, virtually all the reports of these purported symptoms were historical in nature (and, as the court has already noted, this “history,” which was garnered from Merriweather’s family members, is less than credible in some instances). 55 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 56 of 74 Hammonds, Eugene Singleton, and Timothy Laatsch all communicated freely with Merriweather. (Tr. Vol. VII, 1233-34; Tr. Vol. VII, 1244; Tr. Vol. VIII, 1268; Tr. Vol. VII, 1229). Dr. Mirsky testified that “[t]here was no period of time when [Merriweather] was mute with [him].” (Tr. Vol. VI, 1091). Even with respect to those incidents to which the Defense points as evidence of Merriweather’s mutism, 47 the record evidence reveals Merriweather’s ability to speak. Dr. Dudley testified that when Merriweather refused to speak with him, he dismissed him with “hand signals and the verbal refusal to speak.” (Tr. Vol. VI, 946). After Merriweather’s attorneys and Jack Earley were initially turned away during a visit on June 27, 2011, Merriweather told a guard to call his lawyers back because he recognized Jaffe and wanted to talk. (Tr. Vol. V, 821). When Mr. Earley and Mr. Jaffe returned, Merriweather engaged in a conversation with Mr. Jaffe that, according to Earley, lasted for hours. (Tr. Vol. V, 822-23). Merriweather himself decides when to speak, and when not to. The evidence shows his silence is not connected to any psychosis.48 3. Poor Hygiene The relationship between personal hygiene and schizophrenia was raised at least two times during the hearing. First, the Defense asked Dr. Berger if Merriweather’s poor hygiene is a negative symptom of schizophrenia. (Tr. Vol. V, 762). Dr. Berger denied that hygiene was a major issue for 47 Having reviewed the “silent” tapes from the Shelby County Jail (Def. Ex. #121, 131-35), the court cannot tell whether Merriweather was communicating with his attorneys, deliberately not communicating with his attorneys, or a combination of both. The court does, however, note that the testimony provided by Defense witnesses alleging that Merriweather is unable to communicate is belied by other testimony – by both Government and Defense witnesses – indicating that Merriweather engaged in long conversations with his attorneys. (See e.g., Tr. Vol. V, 822-23) (testimony by Jack Earley that Merriweather engaged in conversation with Mr. Jaffe for hours). To be sure, the evidence in the record indicates that Merriweather can be less than communicative when he decides to do so. 48 This conclusion is buttressed by the testimony of Dr. Mirsky, who indicated that Merriweather was cooperative during his evaluation. (Tr. Vol. VI, 1089). 56 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 57 of 74 Merriweather while he was at FMC Butner and further noted that poor hygiene may be used by a prisoner as a tool to get attention. (Id.). Dr. Dudley suggested that Merriweather’s hygiene was indicative of his inability to take care of himself, which was indicative of Merriweather’s mental condition. (Tr. Vol. VI, 929). While poor hygiene is not a symptom of schizophrenia, Dr. Dudley offered it as a proxy for Merriweather’s inability to care for himself (i.e., another sign of disorganized behavior). (Id.). When pressed on that point, Dr. Dudley admitted that he was unaware of Judge Ott’s order, issued subsequent to Dr. Dudley’s last visit with Merriweather, that directed staff at the Shelby County Jail to force bathe Merriweather if necessary. (Id. at 999). As it turns out, forced bathing was unnecessary because Merriweather, when faced with Judge Ott’s order, began bathing himself daily without issue. (Tr. Vol. VII, 1220; Tr. Vol. VII, 1249). Therefore, the court finds, in any event that Merriweather had the ability (and mental capacity) to care for his personal hygiene, but simply declined to do so until a court order motivated him to act. 4. Flat Affect It is uncontested that flat affect can be one negative symptom of schizophrenia. (Tr. Vol. V, 770; Tr. Vol. VI, 933). However, only Dr. Dudley testified to Merriweather exhibiting flat affect. 49 Dr. Dudley repeatedly commented during the hearing that Merriweather’s “affect was largely flat” (Tr. Vol. VI, 944, 952, 999, 1002). It remains unclear, however, how significant this detail was to Dr. Dudley shortly after his interviews with Merriweather as his reports never mention Merriweather having a flat affect. (Id. at 965-66). Indeed, Dr. Dudley’s most recent report states that Merriweather’s “affect was often inappropriate, in th[at] he often smiled and laughed while talking 49 Earley did at one point during the hearing describe Merriweather as “flat,” but that was a reference to his energy level. (See Tr. Vol. V, 837). 57 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 58 of 74 about content that didn’t merit such response.” (Def. Ex. #9 at 5). It is difficult to reconcile Dr. Dudley’s testimony describing Merriweather as having a “flat” personality with his testimony that Merriweather “often smiled and laughed.” Accordingly, Dr. Dudley’s testimony as to Merriweather’s “flat affect” is given little weight. 5. Weight Loss The Defense has presented two theories to connect Merriweather’s weight loss to schizophrenia: (1) it results from a delusion of persecution, which could be a negative symptom of schizophrenia (Tr. Vol. I, 120), and (2) “a person incapable of making basic decisions about [his] own physical health is in no position to make the sorts of decisions required of a defendant facing the death penalty.” (Doc. #156 at 44). Regarding the first argument, when Merriweather refused to eat, the record simply does not suggest that a delusion of persecution was a primary reason why Merriweather fasted. Dr. Berger testified that weight loss is often a way for prisoners to get attention. (Tr. Vol. IV, 617). His observation notes related to his evaluation of Merriweather indicate that Merriweather used his refusal to eat “as a bargaining chip[,] asking for a phone call or other staff request.” (Def. Ex. #53 at 1). “There is some apparent manipulation in this,” Dr. Berger wrote, “where [Merriweather] will at times key a request with refusal of food if the request is not granted.” (Def. Ex. #52 at 1). One example where Merriweather manipulated his weight to accomplish a desired result occurred during his stay in FMC Butner when he used weight loss to force the facility to house him in a better cell. (Tr. Vol. V, 761). On another occasion, Merriweather apparently fasted long enough to slip through a food slot in order to enter the cell of another inmate he disliked and “beat the stew out of [him].” (Id. at 899). Merriweather’s use of his weight loss as a bargaining chip to manipulate others stopped after Director Shirley confronted him with a feeding 58 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 59 of 74 tube. (Tr. Vol. VII, 1233). Here, the Defense raises its second theory. “[I]t is not rational for a person to have to be strapped down and threatened with a tube being snaked down his nose to finally get someone to eat,” as “[a] rational person would never let it progress that far.” (Doc. #156 at 44). But that argument is undercut by Merriweather’s own volitional conduct; he successfully negotiated with Director Shirley to avoid being force-fed. (Tr. Vol. VII, 1233-35). Judge Ott’s court order made Merriweather’s concerns about poisoned food immediately vanish. Accordingly, even considering the Defense’s own definition of the term, Merriweather is a rational person. Merriweather’s ability to successfully negotiate with medical and correctional staff members shows that he is in fact capable of making decisions and engaging with his environment to reach his goals. His dietary habits have more to do with control issues (manipulation) than any alleged psychosis. 6. Malingering Medical symptoms can be malingered. In an attempt to bolster the legitimacy of the aforementioned symptoms (and attack the findings of Drs. Berger and Pietz), the Defense has stated that “multiple experts concluded that [Merriweather] was not malingering in any of his tests that were administered to him.” (Doc. #156 at 43). The Defense then names Drs. Pietz and Misky as experts who testified that Merriweather did not malinger on his tests. (Id.) In both cases, the Defense’s assertion is off target. First, contrary to the Defense’s characterization of her testimony, Dr. Pietz did not “testif[y] that there were no signs of malingering in any of the tests she conducted.” (Doc. #156 at 43) (citing Tr. Vol. I, 67-68). In the relevant testimony, Dr. Pietz was referring to her use of a validity indicator profile, a test that measures effort, not malingering. (Tr. Vol. I, 50). In other words, the validity indicator profile shows that Merriweather applied effort when taking Dr. Pietz’s tests, but it does not 59 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 60 of 74 indicate whether such effort was exerted towards malingering or not. In fact, far from testifying that there were no signs of malingering during the testing process, Dr. Pietz recalled that some of Merriweather’s responses led her to suspect malingering. (Tr. Vol. I, 49). When confronted about the suspicious test results, Merriweather admitted that he answered questions about whether or not he experienced hallucinations based on how he experienced the world when under the influence of illicit substances. (Id.). In addition, the Defense makes an even less convincing argument when it asserts that “Dr. Mirsky testified that Merriweather did not malinger on any of the tests.” (Doc. #156 at 43) (citing Tr. Vol. VI, 1050, 1060). Dr. Mirsky never testified that Merriweather did not malinger; he testified that he did not find evidence that Merriweather malingered. (Tr. Vol VI, 1050, 1060). To be sure, this is a distinction with a difference. Just as a fisherman should not conclude that the absence of fish in his net means that there is an absence of fish in the sea, the failure to catch Merriweather malingering does not prove that Merriweather did not malinger. This is precisely why Dr. Gualtieri testifed that a malingering test does not indicate with any assurance that a subject is not malingering. That is, a finding of no malingering on a malingering test can be a false negative. (Tr. Vol. III, 422- 23). Putting aside the issue of testing for malingering, there is record evidence of Merriweather actually malingering in this record. Indeed, the court is more impressed with the testimony of Dr. Berger on this question. In his testimony, Dr. Berger recounted specific observations (made over a substantial period of time) about Merriweather’s manipulative tactics. 50 (See Tr. 601-609, 658) 50 Dr. Gualtieri also testified about similar conduct exhibited by Merriweather during their interviews. (Tr. Vol. III, 402) (testifying to Merriweather becoming “evasive and playful” during their interviews and refusing to answer questions or answering them in a nonsensical way). 60 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 61 of 74 (recounting Merriweather’s dilatory interview tactics and attempts to bargain around or manipulate his environment). Finally, in evaluating the Defense’s claim that Merriweather did not malinger, it is worth remembering that the Defense has only cited testimony regarding whether Merriweather malingered on malingering tests, not whether he malingered his symptoms. As established in the preceding section, there is already abundant evidence of the latter. 7. Brain Scans The Defense has also argued that objective evidence of schizophrenia exists in the form of brain scans interpreted by Dr. Merikangas. (Doc. #156 at 37). Dr. Merikangas, the Defense states, “has noted that the type of atrophy . . . that was found in [Merriweather’s] brain is frequently seen in patients with schizophrenia.” (Id.). There are two reasons why this statement is without merit: (1) the methodology appears suspect, but (2) even accepting Dr. Merikangas’s methodology as valid, Dr. Merikangas’s conclusion is far from conclusive. First, the enterprise of diagnosing medical conditions using brain imaging techniques, such as MRI or PET, is questionable at best. Dr. Landis testified disapprovingly of Dr. Merikangas’s methodology, noting that it is inappropriate to use imaging to diagnose behavior. (Tr. Vol. VIII, 1299). Dr. Gualtieri found the MRI scans to be ambiguous and questioned the legitimacy of attempting to make specific findings based on them. (Id. at 395-96). Even Dr. Merikangas himself cautioned that he “wouldn’t presume to look at [the MRI scans] and say [he] c[ould] make a diagnosis from these tiny images.” (Tr. Vol. VII, 1139-40). Second, Dr. Merikangas, despite the suggestions otherwise by the Defense, never actually diagnosed Merriweather with schizophrenia. He mentioned that certain observations, such as a thin 61 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 62 of 74 corpus callosum and atrophy in the parietal lobe, may be “seen in people with schizophrenia.” (Tr. Vol. VII, 1135-37). However, he also testified that the brain scans could also be consistent with other conditions, including conditions such as lupus, auto-immune diseases, post-encephalitis, some types of demyelinating disease, traumatic brain injuries, a viral infection that affects the brain (such as measles or HIV), and metabolic disturbances (like thyroid diseases or disorders of calcium metabolism). (Tr. Vol. VII, 1141). Given this inconclusive finding, and in light of the totality of evidence presented on the subject area, the brain scans simply do not prove much of anything. Taking all the relevant facts into account, the court agrees with the findings of Drs. Pietz and Berger that Merriweather does not currently suffer from a mental disease or defect. D. Application of the Relevant Standard While a finding of incompetency is predicated on the existence of a mental disease or defect, 51 the standard for evaluating a defendant’s competency to stand trial is not a medical inquiry, but rather a question of constitutional due process. Our judicial system fundamentally requires that a criminal defendant may not be tried unless he is competent. Cooper v. Oklahoma, , 354 (1996); Godinez v. Moran, , 396 (1993); James v. Singletary, 957 F.2d 1562, 1569- 70 (11th Cir. 1992). The Defense asserts that the Dusky standard was “expanded to include a fourth element in Drope v. Missouri,” specifically requiring that a defendant be able to “assist in preparing his defense.” (Doc. #156 at 6, 34). It is not abundantly clear what language Defendant relies upon in 51 See 18 U.S.C. § 4241(d) (“If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent . . .”). 62 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 63 of 74 urging this interpretation of Drope as there is no pinpoint citation as to the source and the only 52 place where the quoted text appears is as dictum (contained in an introductory paragraph generally describing the history of the prohibition against placing the mentally incompetent on trial). See Drope v. Missouri, 420 U.S. at 171. In any case, in the lines following the quoted text, the Supreme Court reaffirmed the two-pronged Dusky Standard. Drope, 420 U.S. at 172 (“Accordingly, as to federal cases, we have approved a test of incompetence which seeks to ascertain whether a criminal defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’”) (citing Dusky, 362 U.S. at 402). Nowhere in Drope did the Supreme Court modify or replace the Dusky Standard, so Dusky remains the standard that this court must follow today. See also United States v. Saingerard, 621 F.3d 1341, 1342 (11th Cir. 2010) (reaffirming the Dusky Standard as the test for competency in the Eleventh Circuit). With that said, while the law is settled as to what the proper standard is, at least one prong of the standard remains poorly defined. The Supreme Court has not yet fully explained what a “rational understanding” entails, much less whether “rational understanding” has the same meaning in the first prong as it does in the second prong. 53 The court has not uncovered any Eleventh Circuit 52 Defendant references United States v. Duhon, 104 F. Supp. 2d 663 (W.D. La. 2000), a widely-cited case in which the Western District of Louisiana interpreted Drope to add a fourth prong (i.e., the Western District of Louisiana treated the second prong of Dusky as two separate prongs) to the Dusky Standard. (Doc. #156 at 7). That decision, however, is not binding precedent on this court and the reasoning behind creating a four-part test is unpersuasive. In Duhon, the Western District of Louisiana espoused a four-part test based upon its reading of the American Bar Association’s Mental Health Standard 7.4.1(b). 104 F. Supp. 2d at 670 n.25. While Mental Health Standard 7.4.1(b) mentions all of the criteria in Duhon’s four-factor test, they are not listed as individual factors but rather embedded in two (admittedly lengthy) phrases separated by a single comma and a conjunction. This suggests to the court that the better reading of Mental Health Standard 7.4.1(b) is that it articulates a two-part test. 53 See Terry A. Maroney, Emotional Competence, “Rational Understanding,” and the Criminal Defendant, 43 Am. Crim. L. Rev. 1375, 1381-85 (2006) (exploring possible meanings of the term “rational understanding”). 63 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 64 of 74 precedent that explicitly defines “rational understanding,” though some cases address the issue without providing a definition for the term. 54 Among the few cases that have directly addressed this issue, the most extensive analysis this court has found appears in the Tenth Circuit’s decision in Lafferty v. Cook, 949 F.2d 1546, 1549-51 (10th Cir. 1991). In Lafferty, the Tenth Circuit deduced that the Supreme Court would consider “a defendant [to lack] the requisite rational understanding if his mental condition precludes him from perceiving accurately, interpreting, and/or responding appropriately to the world around him.” Id. at 1551. The Tenth Circuit then announced that it would use “a sufficient contact with reality as the touchstone for ascertaining the existence of a rational understanding.” Id. The court hesitates to adopt this interpretation because it is unclear how “sufficient contact with reality” makes a defendant’s understanding rational as opposed to factual. A defendant who has a sufficient contact with reality may know facts, such as the day of the week or the name of the current President, but the plain language of Dusky clearly indicates that competency requires something more. “[I]t is not enough,” the Supreme Court admonished in Dusky, “to find that the defendant is oriented to time and place and has some recollection of events.” 362 U.S. at 402 (internal quotations omitted). To give the Dusky standard effect, the term “rational understanding” must mean something different from a “factual understanding.” In Drope, the Supreme Court expounded upon the common law origins of the competency standard and noted that what matters to the Court is the role the prohibition against subjecting the 54 See e.g., Bundy v. Dugger, 850 F.2d 1402, 1409-10 (11th Cir. 1988) (finding a defendant to have a rational understanding of the proceedings against him where the defendant expressed displeasure at one of the trial judge’s instructions, evaluated some of the evidence against him, and criticized the state’s closing argument for referring to facts not in evidence); James v. Singletary, 995 F.2d 187, 188 (11th Cir. 1993) (finding rational understanding where defendant participated in formulating defense strategy with attorneys). However, without a clear definition of what it means for an understanding to be “rational,” these cases offer incomplete guidance on this issue. 64 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 65 of 74 mentally incompetent to trial plays in an adversarial system of justice. 420 U.S. at 172. In explaining its understanding of that prohibition, the Supreme Court directed attention to a law review note that argued that the Dusky standard can be best understood by viewing the primary purpose 55 of the incompetency rules as not only safeguarding the accuracy of adjudication, but also protecting the fairness of the adversarial system. (Id.). To that end, the law review article suggested that rationality under the Dusky standard requires that a defendant have some ability to confer intelligently, to testify coherently, to follow and evaluate the evidence presented, and have some awareness of the significance of the proceeding and some ability to understand the charges against him, the defenses available to him, and the basic elements of a criminal trial. 56 The court believes that this understanding best approximates what the Supreme Court had in mind regarding the standard for mental competency and will therefore use these criteria in evaluating Merriweather’s rational understanding of the proceedings against him. In the final analysis, the determination of competency is a legal conclusion. 57 United States v. Makris, 535 F.2d 899, 908 (5th Cir. 1976). 58 As such, in reaching a competency determination, 55 Note, Incompetency to Stand Trial, 81 Harv.L.Rev. 455, 457-459 (1967). 56 81 Harv.L.Rev. at 458; see also JUDICIAL CONFERENCE OF THE DISTRICT OF COLUMBIA CIRCUIT, REPORT OF THE COMMITTEE ON PROBLEMS CONNECTED WITH MENTAL EXAMINATION OF THE ACCUSED IN CRIMINAL CASES BEFORE TRIAL 132 (1965); Peter R. Silten & Richard Tullis, Mental Competency in Criminal Proceedings, 28 Hastings L. J. 1053, 1058 (1976). 57 The determination of competency as a whole is a mixed question of law and fact. Makris 535 F.2d at 907 (“The question of competency, of course, is a mixed question of law and fact...”). The ultimate determination is a legal conclusion in the sense that competency is a legal concept that must be resolved by the courts and not expert witnesses. Id. at 908. At the same time, the competency ruling is treated as a finding of fact for the purposes of direct review. See United States v. Hogan, 986 F.2d 1364, 1371 (11th Cir. 1993) (“If a state court’s conclusion that a defendant is competent to stand trial is a factfinding for habeas review purposes, and the Supreme Court has said it is, then it follows that the identical conclusion by a district court is a factfinding for purposes of direct review”). 58 See Bonner, 661 F.2d at 1209. 65 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 66 of 74 the court may consider the testimony of medical experts to establish facts; however, it may not abdicate its duty to reach the ultimate determination of a defendant’s competency to stand trial. Id. at 905, 908. Likewise, the court is not obligated to accept without question the assertions of the lawyers concerning the competence of a defendant. Drope v. Missouri, , 178 n.13 (1975). For reasons already articulated, the court concludes the Government has successfully borne its burden of proving by a preponderance of the evidence that Merriweather is competent to stand trial. 59 (See Doc. #133) (assigning burden of proof to the United States). As already noted, the court finds that the Government has shown by a preponderance of the evidence that Merriweather does not currently suffer from a mental disease or defect. However and alternatively, even if Merriweather were found to suffer from an unidentified mental disease or defect, the presence of some mental illness does not necessarily make a defendant incompetent to stand trial. See Median v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995) (“Not every manifestation of mental illness demonstrates incompetence to stand trial . . . neither low intelligence and mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetency to stand trial”); United States v. Hogan, 986 F.2d 1364, 1373 (11th Cir. 1993) (cognitive degeneration due to Alzheimer’s Disease did not render defendant incapable of assisting attorney); see also United States v. Vamos, 797 F.2d 1146, 1150 (2nd Cir. 1986) (“It is well-established that some degree of mental illness cannot be equated with incompetence to stand trial.”); Hall v. United States, 410 F.2d 653, 658 (4th Cir. 1969) (“[T]he presence of some degree of mental illness is not to be equated with incompetence to be sentenced.”). The ultimate question under Dusky is whether 59 To be crystal clear, the allocation of the burden of proof in this case has not affected the outcome of the competency determination since the evidence of competency is not in equipoise. See Medina v. California, 505 U.S. 437, 441 (1992). 66 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 67 of 74 a defendant has sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding, and is able to have a rational and factual understanding of the proceedings against him. Here, the preponderance of the evidence shows that (1) Merriweather has sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding, and (2) Merriweather has both a rational as well as a factual understanding of the proceedings against him. Thus, Merriweather’s functioning has not been impaired to a level below that required by Dusky. 1. Merriweather has Sufficient Present Ability to Consult with his Lawyers with a Reasonable Degree of Rational Understanding The first prong of the Dusky standard, whether a defendant has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” concerns the ability of a defendant to effectively participate in his defense by communicating effectively with his counsel. See Drope, 420 U.S. at 171-72; Cooper, 517 U.S. at 356-57. It is worth emphasizing that the Dusky standard refers to the ability of a defendant to communicate with his attorneys, not his willingness to communicate with his attorney. Being able but unwilling to communicate with one’s attorney does not make a defendant incompetent to stand trial. See e.g., Ferry v. State, 453 N.E.2d 207, 212 (Ind. 1983). Merriweather’s attorneys argue that Merriweather ought to be found incompetent under the first prong because “Merriweather is not engaged in meaningful communication with his counsel.” (Doc. #156 at 44). In making this argument, the Defense correctly identifies the issue to hinge on whether Merriweather deliberately refused to communicate or was unable to communicate due to a mental disease or defect. (Id. at 44-45). However, in making these arguments, the Defense fails 67 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 68 of 74 to account for this critical distinction, arguing simply that Merriweather’s communication with his counsel so far has been “insufficient to protect and exercise his Constitutional rights.” (Id. at 45).60 This argument misses the target. The Defense has not shown that Merriweather cannot speak with his attorneys, but only that he will not speak with his attorneys (except, of course, when it pleases him). When Merriweather refused to speak with Dr. Merikangas in June 2011, he was not unresponsive to his environment; Dr. Merikangas testified that Merriweather waived food away. (Tr. Vol. VII, 1176). When Dr. Dudley testified to Merriweather’s lack of communication, he indicated that the only communication he was able to elicit from Merriweather during his June 2011 visit came in the form of “the hand signals and the verbal refusal to speak with him.” (Tr. Vol. VI, 946). While these experts were apparently seeking to express the view that Merriweather was unable to communicate, that assertion is actually undermined by their own testimony. Waiving away a food tray when it was offered shows that Merriweather is aware of his surroundings and able to respond to achieve a desired result (i.e., sending the food away). Similarly, using hand signals and verbally expressing the desire not to see someone evinces Merriweather’s ability to communicate his desire not to see that person. Moreover, the conversation that took place the next day among Merriweather, Jack Earley, and Merriweather’s attorneys belies the assertion that Merriweather is unable to communicate with his attorneys with a reasonable degree of rational understanding. As Earley, Jaffe, and Drennan were 60 Along the way, Merriweather’s attorneys have argued that the question of whether Merriweather’s lack of communication was deliberate or involuntary may be resolved entirely by ascertaining that Merriweather has a mental illness. (Doc. #156 at 44-45). The Defense does not focus on this argument much though, noting that “such analysis may be somewhat superfluous” when compared with the later argument that Merriweather’s communication with his attorneys has been objectively lacking. However, the problem with this argument is not that it is superfluous, but that it is incorrect; merely because a defendant is afflicted with a mental illness does not necessarily render that defendant incompetent. See Median, 59 F.3d at 1107; Hall 410 F.2d at 658. 68 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 69 of 74 leaving the Shelby County Jail, Merriweather told a guard to call them back because he recognized Jaffe and wanted to talk with him. (Tr. Vol. V, 822). The conversation lasted for hours. (Id. at 822- 23). Earley testified that Merriweather’s speech during this conversation seemed organized (at least to Merriweather). (Id. at 838). By the Defense’s own testimony, although they contend Merriweather is not able to consult his counsel, he has consulted his lawyers when he desired to speak with them. Merriweather’s refusal to speak with members of the Defense team can therefore be best understood to show, not a lack of ability, but a lack of cooperation. As the Eleventh Circuit has noted previously, even if a criminal defendant is “at times uncommunicative with his counsel, periods of uncooperativeness alone are insufficient to support a finding of incompetence.” United States v. Jones, 200 F. App’x 915, 921 (11th Cir. 2006).61 The Defense may protest that, while their own evidence demonstrates that Merriweather is able to consult with his counsel, it does not establish that Merriweather is able to consult with his lawyers with a reasonable degree of rational understanding. Since this requires inquiring into whether Merriweather has rational understanding of the proceedings against him, the court turns now to the second prong of Dusky. 2. Merriweather has a Rational as Well as a Factual Understanding of the Proceedings Against Him Dusky requires that a defendant have both a rational as well as a factual understanding of the proceedings against him. 362 U.S. at 402. Subsequent cases have clarified that the standard does not require that a defendant actually have a present rational and factual understanding of the proceedings against him, but only that he is capable of having a rational and factual understanding 61 Although Jones is an unpublished decision, the quoted language is a legal statement which is true beyond question. 69 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 70 of 74 of the proceedings against him. Cooper v. Oklahoma, , 368 (1996) (“The deep roots and fundamental character of the defendant’s right not to stand trial when it is more likely than not that he lacks the capacity to understand the nature of the proceedings against him or to communicate effectively with counsel mandate constitutional protection.”); Godinez v. Moran, , 401 (1993) (“Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel.”); Drope v. Missouri, , 171 (1975) (“A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”). The Government has shown by a preponderance of the evidence that Merriweather is capable of having both a rational and a factual understanding of the proceedings against him. a. Merriweather has a Factual Understanding of the Proceedings Against Him The evidence leaves little doubt that Merriweather has a factual understanding of the proceedings against him. In his interviews with Dr. Pietz, Merriweather provided clear, detailed, and coherent recollections of the robbery. (Doc. #24 at 16). Merriweather correctly identified the roles of the judge, the prosecutor, and the Defense counsel. (Id.). He knew that a jury of 12-14 jurors would be selected from his community. (Id.). He was aware of the insanity defense, understood the meaning of a guilty plea, and indicated that “a defendant should discuss the options [sic] of a plea bargain with his attorney.” (Id.). During his conversation with his lawyers in the presence of Mr. Earley, Merriweather told his lawyers that “the judge was the one that was going to make the ultimate decisions in the case, and the judge didn’t need to hear from defense lawyers or a defense doctor, especially since he already had doctors that he could rely upon.” (Tr. Vol. V, 833). While 70 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 71 of 74 Merriweather’s understanding of the facts may reflect a cynical outlook, it is nonetheless connected to reality. b. Merriweather Has a Rational Understanding of the Proceedings Against Him As established earlier, to determine whether Merriweather has a rational understanding of the proceedings against him, the court considers whether Merriweather has some ability to (1) confer intelligently and testify coherently, (2) to follow and evaluate the evidence presented, (3) has some awareness of the significance of the proceeding, and (4) has some ability to understand the charges against him, the defenses available to him, and the basic elements of a criminal trial. (1) Merriweather Has the Ability to Confer Intelligently and Testify Coherently The evidence has demonstrated that Merriweather has had the ability to communicate intelligently and coherently with psychological examiners and correctional officers over the years, and has that ability at present. The transcript from Merriweather’s initial interview at the Jefferson County Jail shows that Merriweather had no difficulty communicating intelligently and coherently with investigators on the day after the robbery. (Def. Ex. #16). During his evaluations at MCFP Springfield, Dr. Pietz found Merriweather articulate and noted that his speech was rational and coherent, and that he would pause to think about what he wanted to say. (Tr. Vol. I, 27, 54). Officer Singleton, a corrections officer at FMC Butner, noted that he was able to communicate with Merriweather without difficulty and that their interactions seemed normal. (Tr. Vol. VIII, 1268). Dr. Berger testified that Merriweather should be able to consult with his attorneys since he could certainly communicate reasonably with himself, nurses, and correctional officers. (Tr. Vol. IV, 621). Dr. Gualtieri testified that Merriweather maintained appropriate behavior and communicated with an attentive and pleasant demeanor when engaged in small talk, though noted that Merriweather 71 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 72 of 74 could become evasive when he wanted to. (Tr. Vol. III, 401-02). Officer Laatsch, a corrections officer at the Shelby County Sheriff’s Office, indicated that he had no problems understanding Merriweather. (Tr. Vol. VII, 1229). Merriweather’s ability to communicate intelligently and coherently was also clearly evident when he engaged in successful negotiations with Director Shirley to avoid being force fed. (Id. at 1233-34). While Merriweather refused to meet with Drs. Merikangas or Dudley, he conferred with Mr. Earley and his attorneys the next day with sufficient intelligence and coherence that Mr. Earley testified that he recognized that Merriweather’s speech at least seemed organized to himself. 62 (Tr. Vol. V, 838). The evidence clearly establishes that Merriweather is able to confer intelligently and coherently. (2) Merriweather Has the Ability to Follow and Evaluate the Evidence Presented The record also shows that Merriweather does have the ability to follow and evaluate the evidence in his trial because his behavior, especially when he attempts to be evasive, reveals a rational, manipulative mind. During his interview with Jefferson County Investigators, Merriweather frequently paused to consider his answers and repeatedly tried to stall the interview. (Def. Ex. #16 at 12, 18, 25). During his interviews with Dr. Pietz, Merriweather would take time to think through his responses (Tr. Vol. I, 46, 57) and recognized when to change them when they were not eliciting the response that he wanted, such as when he changed his recollection of the robbery. (Id. at 35). Merriweather also demonstrated that he is able to predict the path of a conversation and react accordingly, which Dr. Gualtieri noticed when Merriweather would become more evasive when the conversation turned to topics relevant to the instant proceedings against him. (Tr. Vol. III, 404-06). 62 The Dusky standard, as commentators have noted, does not require that a defendant have a high level of ability or performance. See 81 Harv.L.Rev. at 458. After all, a defendant surely does not have to be as intelligent and reasonable as his lawyers to be competent to stand trial. 72 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 73 of 74 Further evidence of Merriweather’s ability to follow and evaluate facts around him can be found in the activities Merriweather performed in his spare time. While at FMC Butner, Merriweather would read novels. (Tr. Vol. VIII, 1269). Drawing from his electrical engineering background, Merriweather fixed a radio so that he could listen to broadcasts. (Tr. Vol. V, 614). These are not activities associated with people divorced from reality. Even more revealing was Merriweather’s conversation with his attorneys in the presence of Mr. Earley. According to Mr. Earley, Merriweather told his lawyers that he believed that “the judge was the one that was going to make the ultimate decisions in the case, and the judge didn’t need to hear from defense lawyers or a defense doctor, especially since he already had doctors that he could rely upon.” (Tr. Vol. V, 833). Merriweather’s comment, though untrue (intentionally or not), demonstrates that Merriweather is able to connect facts (he knows about the expert witnesses testifying in the case and can distinguish between doctors and lawyers retained by the Defense from the medical examiners assigned to conduct the competency evaluation) and draw an inference from the evidence. Taken together, these events reveal that Merriweather is capable of following and evaluating evidence. (3) Merriweather is Aware of the Significance of this Proceeding Merriweather acknowledged to Dr. Pietz that he is aware that the death penalty may be imposed in his case. (Doc. #24 at 16). His awareness of the nature and the implications of these proceedings is similarly evident in the way that he responded to Judge Ott’s order authorizing the Shelby County Jail to forcibly feed and bathe him. His immediate transformation – taking showers and eating regularly without incident after being confronted with Judge Ott’s orders – evidences his ability to appreciate his situation. 73 Case 2:07-cr-00243-RDP-JEO Document 160 Filed 02/05/13 Page 74 of 74 (4) Merriweather Has the Ability to Understand the Charges Against Him, the Defenses Available to Him, and the Basic Elements of a Criminal Trial During Dr. Pietz’s interview of Merriweather, it became apparent that Merriweather has an unusually comprehensive understanding of the criminal legal process. Merriweather understood the charges against him and provided a written description of the robbery from memory. (Doc. #24 at 16). He understood possible pleas and described the insanity defense. (Id.). He correctly identified court personnel and proceedings. (Id.). Dr. Pietz noted that Merriweather had not only done “exceptionally well” on the ECST-R, he had performed better than one of her students. (Tr. Vol. I, 59-60). Given his outstanding performance, Merriweather must certainly be able to understand the charges against him, the defenses available to him, and the basic elements of the criminal trial. III. CONCLUSION After thoroughly reviewing all available evidence, the court concludes that Merriweather is competent to stand trial. He does not currently suffer from a mental disease or defect that could render him incompetent. Moreover, even if he did have an undetected mental disease or defect, the evidence clearly establishes that he does not have any impairments that rise to a level that would render him incompetent under Dusky. A separate order consistent with this Memorandum Opinion will be entered. DONE and ORDERED this 5th day of February, 2013. ___________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE 74
=== Doc.#604 Amended Findings of Fact and Conclusions of Law Regarding the Supplemental Competency Hearing ===
Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 1 of 124 FILED 2014 Nov-05 PM 12:11 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION UNITED STATES OF AMERICA, v. WILLIAM MERRIWEATHER, JR., Defendant. } } } } } } } Case No.: 2:07-CR-243-RDP-JEO AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE SUPPLEMENTAL COMPETENCY HEARING Before the court is Defendant William Merriweather’s second motion to declare him presently incompetent to proceed to trial. Following a second competency hearing, held pursuant to 18 U.S.C. § 4241(a), the court, having considered all of the evidence and for the reasons set forth below, finds that Defendant is presently competent to stand trial.1 I. Procedural History 1. Defendant William Merriweather, Jr. is charged with three capital-eligible offenses: one count of killing during the commission of bank robbery and two counts of use of a firearm during a crime of violence. 2 (Docs. 1; 405 at 1-2). The Government alleges that Merriweather robbed the Bessemer, Alabama branch of Wachovia Bank and during the 1 As the court has reminded the parties, the issue now before the court is not whether Defendant was competent in 2011, 2012, or 2013. The court conducted a full evidentiary hearing on Defendant’s competency from July 25, 2011 through August 3, 2011 and ruled that Defendant was competent at that time. The issue now before the court is Defendant’s present competency. 2 Merriweather is charged with engaging in Armed Bank Robbery by Force or Violence Resulting in Death, as well as Armed Robbery with Forced Accompaniment in violation of 18 U.S.C. § 2113(a), (d) and (e); the Use or Carrying of a Firearm During a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A); and the Use or Carrying and Discharge of a Firearm in Relation to a Crime of Violence Resulting in Death in violation of 18 U.S.C. § 924(c) and (j). (Doc. 1). Merriweather was indicted by the Grand Jury in the United States District Court for the Northern District of Alabama on June 27, 2007. (Doc. 1). Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 2 of 124 commission of that offense, shot four employees, killing two of them and wounding the other two. (Doc. 1 at 1-4). While attempting to flee, Merriweather attempted to take hostage another bank employee but was shot by police officers, immediately apprehended, and given emergency medical care. (Doc. 4, sealed at 2). He has remained in custody since that time. 2. The court has previously ruled that Defendant was competent after conducting a competency hearing in 2011. (See Docs. 160, Findings of Fact and Conclusions of Law, and 161, Order (on competency) denying Merriweather’s initial competency motion). Thereafter, two developments counseled toward the need to conduct a supplemental competency hearing to determine “if there is reasonable cause to believe that [Merriweather] may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241. First, the court learned that the records submitted by the Bureau of Prisons’ Federal Medical Center at Butner, North Carolina (FMC Butner), where Merriweather was evaluated pursuant to the initial competency hearing, were incomplete because of the facility’s transition from paper to electronic records. Thus, some of the records requested by the Defense from FMC Butner, including a number of nurses’ records, were inadvertently omitted from the documents provided to Defense counsel before the 2011 hearing. Those records have now been provided and contain nursing charts called ESH/ADs (Extended Secure Housing/Administrative Services Nurses Flow Sheet)3 and BEMRs (Butner Electronic Medical Records) (see Doc. 554, Second Comp. Hrg. Vol. V at 1130). 3 ESH/ADs are flow sheets made to document nurses’ observations of patients’ conditions at FMC Butner during each shift in lieu of writing out a longhand note. (Doc. 553, Second Comp. Hrg. Vol. IV at 932, testimony of Carlene A. Beasley). 2 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 3 of 124 3. The second development involved one of the experts who evaluated Defendant at the initial competency hearing. On December 22, 2013, Dr. Christine Pietz contacted the court after Merriweather was housed at the United States Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP Springfield”) for a criminal responsibility evaluation. (Doc. 549, Second Comp. Hrg. Vol. I at 96). Dr. Pietz told the court that she needed to evaluate Merriweather further because he was presenting in such a way that raised concerns about his competence at that time. 4. After these developments, the Defense moved the court for a second competency hearing, arguing that new evidence and the additional records from FMC Butner cast doubts about Defendant’s competency. (Doc. 203). 5. The Supreme Court has not articulated a specific standard for when a second competency hearing is required in a federal case, but the Court has instructed that “[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence.” Drope v. Missouri, , 180 (1975). While there are “no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed,” the court will, when warranted, take commensurate measures to ensure that Defendant has a fair trial. Drope, 420 U.S. at 180 (1975).4 In light of the belated disclosure of the nurses’ notes, Dr. Pietz’s concerns about Merriweather’s mental state, and the fact that this is a capital case, the court found that a supplemental hearing was warranted. 4 The court is mindful that the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S. 586, 604 (1978). 3 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 4 of 124 6. In 2007, and in connection with the events leading to these federal charges, Merriweather was also indicted by the State of Alabama on charges of Capital Murder, Attempted Murder, and Kidnapping in the First Degree. (Doc. 4 at 3). During preliminary hearings for the state charges, the Defense notified the court that it intended to retain the services of a mental health professional. (Doc 4 at 3; Doc 22 at 1). Anticipating that the Defense would raise mental health defenses, the United States interviewed Merriweather’s family and friends. (Doc. 4 at 3). Based on this investigation, the United States filed a motion on July 13, 2007, requesting that the court order Merriweather to submit to a mental evaluation to determine his mental competency to stand trial and his mental state at the time of the offenses. (Doc. 4, sealed at 3-4; see also Docs. 22 at 2; 152 at 2). 7. By that time, the Defense had already retained Dr. Kimberly Svec Ackerson, a local forensic psychologist, to evaluate Merriweather. (Doc. 22 at 2). Magistrate Judge John E. Ott was aware of this arrangement and deferred ruling on the Government’s motion until after Dr. Ackerson’s evaluation report was received. (Id.). Dr. Ackerson’s evaluation report, which was completed following her last interview with Merriweather on September 24, 2007, was inconclusive. The report noted that Merriweather exhibited strong indicators of mental illness, but commented that Merriweather’s self-admitted history of drug use “serves to complicate the clinical picture.” (Def. Ex. 34 at 2). Moreover, Dr. Ackerson indicated that she was at an impasse with Merriweather, who refused to participate. (Id.). Dr. Ackerson strongly recommended that further evaluation be conducted at a facility that would be able to provide 24-hour observation with properly-trained mental health professionals available. (Def. Ex. 34 at 2). 8. In light of Dr. Ackerson’s recommendations, Judge Ott, in his October 12, 2007 order, referred Merriweather to the Bureau of Prisons for in-patient evaluation and treatment “to 4 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 5 of 124 discern competency issues and to afford Defendant appropriate mental health treatment.” (Doc. 22 at 3). 9. From November 2, 2007 through January 14, 2008, Merriweather was housed at the United States Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP Springfield”) where he was evaluated by Dr. Christina Pietz. (Doc. 24, sealed). At the conclusion of Merriweather’s stay at MCFP Springfield, Dr. Pietz issued two formal reports: (1) a report regarding Merriweather’s competency to proceed to trial (Doc. 24, sealed at 1-17), and (2) a report regarding Merriweather’s mental state at the time of the crime. (Id. at 18-27). In Dr. Pietz’s report regarding Merriweather’s competency to stand trial, she acknowledged testimony from Merriweather’s family describing psychotic behavior, but concluded that such symptoms were best explained by Merriweather’s illicit drug use. (Id. at 11-12). The report concluded that Merriweather “does not currently suffer from a mental illness” (id. at 13) and that Merriweather “is currently competent to stand trial and make other decisions regarding his case.” (Id. at 15). 10. After his mental evaluations were conducted at MCFP Springfield, Merriweather was returned to the Jefferson County Jail. (Doc. 7 at 4). 11. On June 3, 2008, the United States filed its formal Notice of Intent to Seek the Death Penalty. (Doc. 29). Pursuant to 18 U.S.C. § 3005, Judge Ott appointed Richard S. Jaffe and J. Derek Drennan to represent Merriweather. (Docs. 33 and 36). 12. On November 10, 2008, almost a year after Merriweather’s evaluation at MCFP Springfield was completed, Jaffe first expressed his concern to the Government that, based on information discovered by the Defense mitigation team, Merriweather was “decompensating”5 5 “Decompensation” has been defined as a breakdown in the psychological defense mechanisms that help 5 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 6 of 124 and would not be competent to assist in his defense. (Doc. 70 at 5). Jaffe repeated his concerns on May 14, 2009, when he again informed the Government that Merriweather was decompensating and having “conversations in his head.” (Doc. 70 at 5). 13. On December 9, 2008, Judge Ott granted the Defense’s request for a mitigation investigator and a victim liaison. (Doc. 47). 14. On January 26, 2009, Dr. Richard G. Dudley, a psychiatrist retained by the Defense, interviewed Merriweather (Def. Ex. 9 at 2) and later produced an affidavit declaring his belief that Merriweather “is unable to understand the charges against him and is unable to assist his lawyers or [Dudley] with [Merriweather’s] case.” (Def. Ex. 66 at 1). On April 30, 2009, Dr. James Merikangas, another psychiatrist retained by the Defense, interviewed Merriweather for approximately one and a half hours (Doc. 148, Tr. Vol. VII, 1128) 6 and concluded in a two-sentence letter addressed to the Defense that Merriweather was incompetent to stand trial. (Doc. 66). The Defense did not notify the Government of either of those evaluations. (Doc. 70 at 6-7). 15. Dr. Robert Hunter, a psychiatrist at the Jefferson County Jail, testified that he was called upon to examine Merriweather on two occasions -- in April and July 2009. On April 16, 2009, Dr. Hunter was called to examine Merriweather after he fasted enough to slip through the food door, and was able to slide under the gate. (Doc. 146, Tr. Vol. V, 886, Def. Ex. 36 at 1). After escaping his cell, Merriweather assaulted another prisoner. (Id.). Dr. Hunter testified that Merriweather was calm and cooperative during the interview and did not show any outward signs individuals maintain good mental functioning. Decompensation may occur under stress or in mental disorders such as anxiety, depression, or psychoses with hallucinations or delusions. ADA P. KAHN & JAN FAWCETT, THE ENCYCLOPEDIA OF MENTAL HEALTH 127 (1993). 6 The first competency hearing was held from July 25 to August 3, 2011. 6 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 7 of 124 of psychosis. (Def. Ex. 36 at 1). During his second examination on July 31, 2009, however, Dr. Hunter testified that Merriweather’s behavior was markedly different. (Doc. 146, Tr. Vol. V, Def. Ex. 36 at 1). Merriweather was “paranoid and preoccupied with the idea that he was housed ‘around homosexuals,’” and his speech and thought processes “were rambling and at times disjointed.” (Id.). Dr. Hunter described Merriweather as irritable and noted that he became increasingly hostile as the interview progressed, which forced Dr. Hunter to terminate the interview. (Id.). 16. On August 5, 2009, the Defense moved to have Merriweather declared incompetent to stand trial and requested that he be remanded to the custody of the Attorney General to be placed in a federal mental health facility until competency was restored. (Doc. 65). In support of its motion, the Defense filed Dr. Merikangas’s letter as a sealed ex parte pleading. (Doc. 70 at 6-7). 17. Judge Ott conducted a telephone conference with the parties on August 10, 2009, to ascertain their positions regarding the motion. (Doc. 70 at 7). Apprehensive about the impartiality of the previously undisclosed psychiatrists hired by the Defense, the United States requested that Merriweather undergo another mental evaluation by the Bureau of Prisons to obtain a more current and impartial determination as to whether Merriweather had actually decompensated since his evaluation at MCFP Springfield. (Doc. 70 at 7-8). 18. The Defense responded with a request that the court appoint a private independent psychiatrist(s) -- rather than the Bureau of Prisons -- to evaluate Merriweather’s competency due to allegations that Dr. Pietz was biased in favor of the Government. (Doc. 72). The Defense also moved the court to exclude Dr. Pietz from participating in any future evaluations should the court nonetheless remand Merriweather to the Bureau of Prisons for reevaluation. (Doc. 72). 7 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 8 of 124 19. A hearing was convened on August 20, 2009, and the parties submitted post-hearing briefs. (Doc. 79 at 1-2). After considering the respective arguments and applicable law, on November 16, 2009, Judge Ott ordered that Merriweather undergo a new evaluation at FMC Butner. (Doc. 79). At the insistence of Defense counsel, Judge Ott further ordered that all interviews with Merriweather be videotaped, and that the final report include input by a neuropsychiatrist and/or neurologist. (Doc. 79 at 14). 20. From December 9, 2009, until April 18, 2011, Merriweather underwent an extended in-patient competency evaluation at FMC Butner. (Doc. 145, Comp. Hrg. Vol. IV at 583). During his 496-day stay at FMC Butner, Merriweather was kept under constant surveillance by medical professionals and staff who checked on him continuously. (Doc. 145, Comp. Hrg. Vol. IV at 584). 21. As a general matter, Merriweather’s behavior during his time at FMC Butner appears to have been stable. According to Eugene Singleton, a federal corrections officer who saw Merriweather on a regular basis, Merriweather had the calm demeanor of an ordinary inmate doing his time. (Doc. 145, Comp. Hrg. Vol. VIII at 1265-66). Singleton never observed Merriweather reacting to hallucinations or paranoid delusions. (Id.). Merriweather was never aggressive or rude toward the corrections officers. (Doc. 145, Comp. Hrg. Vol. VIII at 1267). Merriweather generally spent his time sleeping, but he would chat from time to time with Singleton when he made his periodic rounds, sometimes requesting peanut butter, or something to read. (Doc. 145, Comp. Hrg. Vol. VIII at 1268-69). 22. In compliance with Judge Ott’s second requirement, the Bureau of Prisons secured the services of two outside consultants, Alan Mirsky, Ph.D., a neuropsychologist, and Thomas Gualtieri, M.D., a neuropsychiatrist, to evaluate Merriweather in addition to the evaluation 8 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 9 of 124 performed by FMC Butner staff. Their reports were reviewed and summarized by Dr. Edward Landis, the Deputy Chief Psychologist at FMC Butner, who passed them to the psychiatrist charged with supervising Merriweather’s evaluation at FMC Butner, Staff Psychiatrist Bruce Berger, M.D. (Doc. 145, Comp. Hrg. Vol. VIII at 1288). 23. Dr. Berger reviewed the reports submitted by Drs. Mirsky, Gualtieri, and Pietz (Doc. 145, Comp. Hrg. Vol. IV at 585) as well as collateral reports by Drs. Dudley, Hunter, and Merikangas. (Doc. 145, Comp. Hrg. Vol. IV at 587). Dr. Berger, who was assisted by Dr. Jill Grant and a team of mental health professionals, conducted four videotaped formal interviews in addition to seeing Merriweather on a daily basis for 496 days. (Doc. 145, Comp. Hrg. Vol. IV at 586). On April 1, 2011, Dr. Berger issued a report in which he concluded that Merriweather “does currently possess the capacity to understand his current charges, understand courtroom functioning, and could, should he so choose, work affirmatively with his attorney in a rational way…[and that] he is competent to proceed.” (Gov’t Ex. 10 at 10). 24. After his evaluation at FMC Butner, Merriweather was returned to the Northern District of Alabama on April 20, 2011, and housed at the Shelby County Jail. (Doc. 148, Comp. Hrg. Vol. VII at 1015). 25. Upon his return to the Shelby County Jail, Merriweather initially refused to eat for nine days, but instead requested Ensure from medical staff. (Doc. 148, Comp. Hrg. Vol. VII at 1215). On the ninth day (April 29, 2011), Merriweather resumed eating with a renewed appetite; he would ask for extra trays and often consumed two or three trays per meal. (Id.). According to Officer Tim Laatsch, a corrections officer with the Shelby County Sheriff’s Office, Merriweather ate regularly until he was moved from his segregation unit into an intermediate housing unit closer to the general prison inmate population. (Id. at 1215-16). After being relocated, Merriweather 9 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 10 of 124 again refused to eat. (Id. at 1216). Officer Laatsch testified that Merriweather had apparently told another inmate that he (Merriweather) would not eat anything wet or shiny.7 (Id.). Because he refused to eat, Merriweather lost a significant amount of weight and was consequently relocated to the medical unit of the jail where he could be more closely monitored. (Id.). Although Merriweather refused the food prepared by the facility, Officer Laatsch was able to procure pre-packaged store items, which Merriweather did consume. (Id. at 1217). 26. After beginning his stay at the Shelby County Jail, Merriweather refused to bathe regularly, showering only every third or fourth day.8 (Doc. 148, Comp. Hrg. Vol. VII at 1219). 27. During three days in June 2011, Dr. Merikangas and Dr. Dudley, the expert witnesses retained by the Defense to evaluate Merriweather some two years earlier, attempted to meet with Merriweather at the Shelby County Jail; Merriweather refused to engage with them. (Doc. 148, Comp. Hrg. Vol. VI at 946; Doc. 148, Comp. Hrg. Vol. VII at 1148). 28. On June 22, 2011, Dr. Merikangas visited Merriweather in the Shelby County Jail. (Tr. Vol. VII, 1146, 1149). When Dr. Merikangas attempted to interview Merriweather in a small attorney-client interview room, Merriweather ignored him. (Id. at 1148). Dr. Merikangas noticed that Merriweather’s weight had dropped dramatically. (Id.). Dr. Merikangas visited Merriweather again on June 23, 2011. (Id. at 1149). Again, Merriweather was unresponsive. Dr. Merikangas noted that, when he asked about Merriweather, the correctional officers who accompanied him 7 That inmate reported Merriweather’s statement to another officer, who conveyed the information to Officer Laatsch. (Doc. 148, Comp. Hrg. Vol. VII at 1216). The inmate’s statement to the other officer and the unidentified officer’s statement to Officer Laatsch both appear to be examples of hearsay without exception, but neither side objected to the testimony. 8 Officer Laatsch testified that Merriweather was offered the opportunity each day to leave his cell and be escorted to a shower. During most of the days when Officer Laatsch was tasked with escorting Merriweather to shower, Merriweather refused. 10 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 11 of 124 into the room indicated that Merriweather’s behavior towards Dr. Merikangas was not different from his behavior towards the guards and they expressed sympathy for Merriweather. (Id. at 1151). 29. On June 24, 2011, Dr. Dudley visited Merriweather in his cell at the Shelby County Jail. (Def. Ex. 9 at 2; Tr. Vol. VI, 945). The first thing Dr. Dudley noticed was the smell; he had been told by correctional officers that Merriweather had not been showering. (Tr. Vol. VI, 944-45). Dr. Dudley recounted that correctional officers had told him that Merriweather was not eating food prepared by the jail, but was eating sealed, packaged food. (Id. at 945). When Dr. Dudley attempted to communicate with Merriweather, the only responses he was able to elicit were “the hand signals and the verbal refusal to speak.” (Id. at 946). On June 27, 2011, in the presence of Mr. Jack Earley, a lawyer retained by the Defense as a criminal law expert, Merriweather engaged in an extensive conversation with Defense counsel. (Tr. Vol. V, 823). 30. Also on June 27, 2011, Judge Ott entered an order authorizing personnel at the Shelby County Jail to take any reasonable steps necessary to ensure Merriweather’s health was not further compromised, including forcibly feeding and bathing him. (Doc. 109). 31. Following the court order, Diana Shirley, Director of Nursing at the Shelby County Sheriff’s Office, was scheduled to insert a feeding tube through Merriweather’s nose. (Tr. Vol. VII, 1233). Director Shirley testified that Merriweather was unhappy about this prospect, and volunteered that he “might try to eat” if she would not insert the feeding tube. (Id. at 1234). Shirley responded that the offer to maybe “try to eat” was not a real offer; either Merriweather would eat or the tube would be inserted. (Id. at 1234). Merriweather promptly agreed to eat. (Id.). Shirley further testified that Merriweather resumed eating normally after that confrontation and never again complained about food that was wet or shiny nor expressed concerns that he was being 11 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 12 of 124 poisoned. (Tr. Vol. VII, 1236). Shirley further noted that she never observed Merriweather having conversations in his head while at the Shelby County Jail. (Tr. Vol. III, 1245). 32. Kelly Hammonds, another nurse at the Shelby County Jail who interacted with Merriweather, testified that Merriweather showered daily following the court order authorizing prison staff to take necessary procedures to ensure that Merriweather bathed and ate.9 (Tr. Vol. VII, 1249). Hammonds further testified that Merriweather spoke clearly and articulately, had no difficulty communicating with prison staff (Id. at 1244), and never mentioned anything about demons, little green men, or a chip in his arm. (Id. at 1245). Moreover, after the court order authorized prison staff to force feed him, Merriweather ate three meals a day and was fully cooperative in doing so. (Id. at 1246). 33. Since being housed at the Shelby County Jail, Merriweather has neither been observed responding to internal stimuli, nor has he given any indication of suffering from delusions or hallucinations. (Id. at 1218, 1236, 1245). 34. On July 25, 2011, this court convened a hearing, pursuant to 18 U.S.C. § 4241(a) and (c), to hear testimony and receive evidence on the issues surrounding Merriweather’s competency to stand trial. The court heard from several Government witnesses, including four mental health experts (Drs. Pietz, Berger, Gualtieri, and Landis), two nurses (Diana Shirley and Kelly Hammonds), and two corrections officers (Laatsch and Eugene Singleton). The Defense presented seven witnesses, including three mental health experts (Drs. Merikangas, Mirsky, and Dudley), an attorney (Jack Earley), Merriweather’s sister (Kim Patton), and Merriweather’s 9 This testimony is consistent with that of Officer Laatsch. (Doc. 148, Comp. Hrg. Vol. VII at 1219). 12 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 13 of 124 former girlfriend (Latisha Simpson).10 Merriweather did not testify. In addition, the court received a total of 106 exhibits into evidence. At the request of the court, the parties submitted briefs as well as proposed findings of facts and conclusions of law. (See Docs. 152 and 153, Gov’t Br. and Proposed Order; Docs. 156 and 154, Def.’s Br. and Proposed Order). 35. On February 5, 2013, the court found that Defendant was competent to stand trial and set this case for trial in January 2014 (Docs. 160 and 161). In advance of that trial setting, Defendant was transported to MCFP Springfield for a criminal responsibility evaluation. 36. Merriweather again asked for a second competency hearing and requested that the prior finding of competency be overturned. (Doc. 203). This court denied the latter request, but because FMC Butner had produced records that had not been previously disclosed, it took the request for a new hearing under advisement. (Doc. 256). 37. During this period, this court additionally considered Merriweather’s request to exclude the use of any testimony, documents, records, and testing performed during his 2007-08 evaluation at Springfield, on the grounds that this information had been obtained prior to the filing of his Rule 12.2 notice, in violation of his Constitutional rights. (Doc. 186, Def.’s Mtn. to Suppress Pietz Evaluation). This court ordered that the Government could not use statements made to Dr. Pietz during the 2007-08 evaluation in its case-in-chief, but could use relevant evidence from that evaluation in rebuttal if Merriweather put his mental state at issue in his case-in-chief. (See Doc. 198 (Order of Magistrate John Ott remanding Merriweather for evaluation at MCPF Springfield . 10 Additionally, the Defense offered evidence from a jail psychiatrist (Dr. Robert Hunter) who did not testify as an expert witness. 13 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 14 of 124 38. When Defendant arrived at MCFP Springfield for his criminal responsibility evaluation, he was initially seen by Dr. Lea Preston-Baecht, Ph.D (“Dr. Preston”) on November 1, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 21; GX 33 at 3). Dr. Preston was initially concerned about the manner which Defendant presented because Merriweather was exhibiting disorganized thinking, which can be an indication of psychosis. (See GX-33 at 3). Unlike the first time that Dr. Preston interviewed Merriweather in 2011, Merriweather was more evasive and less forthcoming during the November 2013 interview. (Doc. 549, Second Comp. Hrg. Vol. I at 23). 39. A few days later, Dr. Pietz met with Defendant. (Doc. 549, Second Comp. Hrg. Vol. I at 24). Dr. Pietz shared Dr. Preston’s initial concerns about Merriweather’s presentation, as he exhibited the same disorganized and tangential speech in the interview with Dr. Pietz. (Doc. 549, Second Comp. Hrg. Vol. I at 23; GX-33 at 4). Those concerns continued when Dr. Pietz saw Defendant on November 8, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 24). Defendant again presented as organized and coherent at times, but disorganized at other times. (Id.). Dr. Pietz reported that Merriweather occasionally had word-finding difficulties, but then would also adopt evasive behaviors such as asking Dr. Pietz questions in response to her questions. When Dr. Pietz refused to answer personal questions, Merriweather would respond that he would not answer her questions either. (Doc. 549, Second Comp. Hrg. Vol. I at 25). This was a different presentation than his initial stay when at MCFP Springfield. 40. Dr. Pietz requested one of her colleagues, psychiatrist Dr. Carlos Tomelleri, to interview Defendant with her on November 13, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 27). Defendant again presented as very disorganized, tangential, and difficult to follow, leading Dr. Tomelleri to suspect psychosis. (Id. at 28). Dr. Tomelleri was also concerned about Defendant’s statements that he did not know what his charges were or that he was facing the death penalty. (Id. 14 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 15 of 124 at 28-29). When Dr. Tomelleri asked Merriweather open-ended questions, Merriweather responded with an unrelated (but nevertheless organized) story. (Id. at 31). 41. Soon after these concerns arose, Dr. Pietz asked a staff member at FPMC Springfield, Correctional Counselor Felicia Williams, about Merriweather. Williams told Dr. Pietz that she believed Merriweather understood his charges and why he was at Springfield. (Doc. 549, Second Comp. Hrg. Vol. I at 27). Williams said that while asking Merriweather about his emergency notification information, Merriweather asked Williams if she was a St. Louis Rams fan. (Id. at 32). When she told him she was actually a Kansas City Chiefs fan, he noted that at that time the Chiefs were undefeated (which was accurate). (Id.). Williams said that she found Defendant was coherent and rational and that he clearly answered her questions. (Id.). 42. Dr. Pietz tried to interview Merriweather again on November 18. He said he would not speak about his case without his legal counsel being present. (Doc. 549, Second Comp. Hrg. Vol. I at 36). Merriweather again told unrelated stories when Dr. Pietz asked him questions. (Id. at 32). However, Dr. Pietz noted that while Merriweather at times seemed perplexed, he could follow the thread of a conversation. Dr. Pietz suspected that Merriweather was intentionally evading her questions to manipulate the conversation. (Id.). Merriweather also refused to take the Minnesota Multiphasic Personality Inventory (MMPI) on three occasions while at Springfield the second time. (Doc. 549, Second Comp. Hrg. Vol. I at 41-42). He had taken the MMPI during his first stay at Springfield. 43. Merriweather maintained that he did not know his charges in an interview Dr. Pietz conducted on November 22. (Doc. 549, Second Comp. Hrg. Vol. I at 43). Dr. Pietz called upon Dr. Robert Sarrazin, Chief of Psychiatry at Springfield, to get his impression of Merriweather. After 15 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 16 of 124 speaking with Merriweather, Dr. Sarrazin concluded that Merriweather did not have a mental illness. (Id. at 45). 44. Dr. Pietz received Judge Ott’s order that all interviews must be videotaped. Thus, Dr. Pietz videotaped her interview with Merriweather on November 27, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 46; GX-19). Dr. Pietz observed that Merriweather’s answers during that interview were coherent and organized. (Id.). He did not appear to experience any visual or auditory hallucinations. (Id. at 48, 52). The staff at FPMC Springfield denied seeing Merriweather experience any hallucinations. (Id. at 53). At times, Merriweather refused to answer or evaded answering questions, but Dr. Pietz concluded that he was doing this intentionally. She believed Merriweather understood the legal process and what roles the judge and his lawyers had in his case. (Id. at 49). Merriweather was not taking any antipsychotic medications while at MCFP Springfield. (Doc. 549, Second Comp. Hrg. Vol. I at 23, 80). 45. Following the November 27th recorded interview, Merriweather stopped speaking with Dr. Pietz. (Doc. 549, Second Comp. Hrg. Vol. I at 54). Instead, he used hand gestures to pantomime answers to Dr. Pietz’s questions, which she interpreted as an unwillingness to speak about the offense – as opposed to signs of schizophrenia or psychosis. (Id. at 54-55). On December 19th, the last morning that Dr. Pietz asked Merriweather to speak with her, he again pantomimed a response, which she interpreted as a “no.” (Id. at 58). 46. In March 2014, Merriweather’s counsel moved the court to conduct a second competency hearing. (Doc. 330). The court granted that motion and ruled that all evidence received during the 2011 hearing would be considered “on the issue of whether [Merriweather] suffers from a mental disease or disorder.” (Docs. 335; 428 at 3). 16 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 17 of 124 47. From July 21 to July 25, 2014, the court again heard evidence on Merriweather’s present competence to stand trial. The court heard from several Government witnesses, including two expert witnesses, Drs. Berger and Pietz, a number of nurses from FMC Butner, and two officers from the Shelby County Jail. The Defense presented two expert witnesses (Drs. Cunningham and Stalcup), and more nurses from FMC Butner, 48. At the second competency hearing, the Government, having borne the burden to prove Merriweather competent by a preponderance of the evidence, was permitted to proceed first at the hearing and also had the opportunity to brief and to reply to Merriweather’s submissions.11 (Docs. 565 and 568, Gov’t Br. and Reply). The Defense submitted briefs in support of its position that Merriweather is incompetent due to schizophrenia. (Docs. 556; 569). The parties’ submissions have been carefully considered along with the testimony of the expert witnesses. II. Findings of Fact 49. The court’s initial competency order discussed Merriweather’s background, including his family, employment, and activities before his arrest. (Doc. 160 at 2-9). The court summarizes that hearing testimony below. 11 Of course, there is a question regarding whether the Government bears the burden of establishing competency, or a defendant bears the burden of establishing that he is incompetent. The language of 18 U.S.C. § 4241 is silent on this point, noting only that the court must find by a preponderance of the evidence that the defendant is incompetent to stand trial. The parties filed briefs on this issue and, thereafter, the Government indicated that it was prepared to undertake the burden of proof on the issue. (Doc. 113 at 6-7). After careful review of relevant case law, the court permitted the Government to bear the burden of establishing competency. (See Section III. Standards and Procedures for Determining Competency to Stand Trial, supra, and Doc. 133). 17 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 18 of 124 A. Testimony Presented at the 2011 Competency Hearing 1. Testimony About Defendant’s Background 50. William Merriweather was born the youngest of three children on May 20, 1976, in Birmingham, Alabama to William Merriweather, Sr. and On Sun Merriweather. (Doc. 24 at 5, Tr. Vol. II, 295; Def. Ex. 7 at 1). His mother was diagnosed with a brain tumor and died when Merriweather was three years old. (Doc. 143, Comp. Hrg. Vol. II at 296). Reportedly, prior to her death, Merriweather’s mother suffered from depression and once attempted suicide. (Doc. 24, Tr. Vol. II, 296). Shortly after On Sun’s death, Merriweather’s father married her younger sister, Kum Cha, and together they raised Merriweather and his siblings, along with two sons born to Kum Cha and Merriweather, Sr. (Doc. 24 at 7; Def. Ex. 7 at 2). Merriweather reported during a psychological examination that he had an otherwise ordinary childhood and adolescence, (Doc. 24 at 5) and experienced no signs of psychosis or mental illness during that time. (Doc. 143, Comp. Hrg. Vol. II at 335). 51. After graduating from high school, Merriweather moved in with his sister, Euknesha Kim Patton (“Patton”), to study at Alabama State University in Montgomery, Alabama. (Doc. 143, Comp. Hrg. Vol. II at 296). He did not complete his education at Alabama State and instead moved back to Birmingham in 1996, enrolling in 2001 at ITT Technical College, where he took courses in electrical work. (Doc. 143, Comp. Hrg. Vol. II at 297-98; Doc. 24 at 5). 52. The record evidence demonstrates that Merriweather has used drugs and alcohol consistently since his adolescence. Much of what is known about Merriweather’s drug use is self-reported; but there have been enough corroborating sources that the court is convinced that Merriweather has participated in substantial drug use. (Doc. 142, Comp. Hrg. Vol. I at 43; Doc. 24 18 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 19 of 124 at 6). Merriweather has reported that he began using alcohol at age 14 and marijuana at 17. (Doc. 142). Merriweather has stated that his marijuana use progressed into substance abuse and addiction, which involved the daily use of marijuana, and the frequent use of cocaine, crystal methamphetamine, alcohol, and ecstasy. (Doc. 142, Comp. Hrg. Vol. I at 43). He began using cocaine at age 22 and at around age 28, he began to use crystal methamphetamine frequently. (Doc. 142, Comp. Hrg. Vol. I at 43). He also acknowledged using “various pills,” “ecstasy,” and shooting heroin intravenously. (Doc. 142, Comp. Hrg. Vol. I at 43; Doc. 24 at 6). Merriweather would use cocaine up to three times each day when it was available to him. (Doc. 24 at 6). Significantly, while being treated at UAB Hospital for the gunshot wound following his arrest, Merriweather tested positive for opiates. (Doc. 142, Comp. Hrg. Vol. I at 103-04; Def. Ex. 15 at 18). 53. In the evidence at the first competency hearing, Merriweather’s family and friends recounted instances when Merriweather displayed unusual behavior. While Merriweather was a student at Alabama State University in 1995, his then-girlfriend Latisha Simpson testified that he told her that he would at times laugh “when things weren’t funny.” (Doc. 144, Comp. Hrg. Vol. III at 554). She also recalled that Merriweather frequently experienced “visions” and “hallucinati[ons],” which she explained were bad dreams that would cause him to wake up screaming on “several occasions.” (Doc. 144, Comp. Hrg. Vol. III at 554-56).12 54. Merriweather’s family reportedly began observing unusual behavior by Merriweather after he returned to Birmingham in 1996. Between late 2001 and early 2002, Euknesha Kim Patton, Merriweather’s sister, received calls from family members informing her 12 There is some discrepancy between Simpson’s testimony at the first competency hearing and her affidavit, in which Simpson stated that Merriweather woke up screaming “on one occasion.” Simpson testified at the hearing that she meant to say “several occasions” in her affidavit. 19 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 20 of 124 that Merriweather was acting strangely. (Doc. 143, Comp. Hrg. Vol. II at 299). This prompted Patton, who had traveled to Birmingham to visit her family sometime in late 2001 or early 2002, to meet with Merriweather. (Id.). Patton testified that, during the meeting, Merriweather informed her that he was hallucinating, and seeing demons in everyone, including family members. (Id. at 299-300). According to Patton, Merriweather further confided in her that he felt that there was a conspiracy against his life, that he would see signs along the neighborhood and on television directed at him, that he was preoccupied with the letter “C,” that he believed that the government planted a chip in his shoulder, and that he could hear his father’s thoughts without his father speaking. (Doc. 143, Comp. Hrg. Vol. II at 300). At the end of their conversation, Patton asked Merriweather if he had been using substances, to which Merriweather responded that he had; however, according to Patton, Merriweather did not associate his experiences with a lack of rest, stress, or drug use. (Id. at 301). 55. Merriweather’s family did not pursue medical treatment for Merriweather’s behavior or his reported experiences. (Doc. 142, Comp. Hrg. Vol. I at 27-28; Vol. II at 299-300, 335, 349-50; Doc. 24). Patton and her husband decided that it would be in Merriweather’s best interest to invite Merriweather to return with them to Montgomery. (Doc. 143, Comp. Hrg. Vol. II at 302). Merriweather packed a bag and left with them that night. (Id. at 303). Merriweather left his car in Birmingham. (Id. at 304). Merriweather stayed with the Pattons in Montgomery for nine months, sharing a bunk bed with their two young children. (Id. at 303). During the first six months, Patton and her husband took precautions to restrict Merriweather’s exposure to drugs and alcohol. (Id.). 56. According to his sister, Merriweather’s paranoia persisted during his stay in her home. Patton testified that Merriweather told her that he thought her 6 and 4-year-old sons were 20 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 21 of 124 plotting to kill him because they were allegedly speaking in code. (Doc. 143, Comp. Hrg. Vol. II at 305). Merriweather similarly accused Patton and her husband of speaking in code with each other. (Id. at 306). Patton recounted that Merriweather would come into her bedroom to sleep at the foot of her bed, complaining that “he was seeing demons and . . . hearing voices.” (Tr. Vol. II, 306). Patton and her husband “would tap him on the shoulder and ask him to go back to the boys’ room.” (Id.). These incidents, however, did not seem to diminish Merriweather’s ability to trust Patton with his life or Patton’s ability to trust Merriweather with her young children, so it is unclear how seriously Patton took these statements about “seeing demons” and “hearing voices.” 57. At the same time, Patton also testified that Merriweather’s condition appeared to improve somewhat over the course of his stay with her. His conversations became more rational and he experienced fewer “acrimonious” situations after four months. (Doc. 143, Comp. Hrg. Vol. II at 310). Patton attributed this to Merriweather’s church participation. (Id.). 58. Merriweather eventually moved out of the Pattons’ home to live with Alecia Smith, a former girlfriend (Doc. 143, Comp. Hrg. Vol. II at 307, 314). Merriweather took a position working with the Department of Corrections in Montgomery. (Id. at 312). The job lasted approximately sixty days. (Id.). Merriweather and Smith broke up after several months and Merriweather moved into a separate apartment, but he was evicted from that residence after six months. (Id. at 313-14). 59. Patton and her husband took Merriweather back into their home in 2003. (Doc. 143, Comp. Hrg. Vol. II at 315). Merriweather stayed in his sister’s home for another three to four months. (Id.). This final stay in his sister’s home proved more fractious than Merriweather’s prior tenancy. Patton attested that she laid down several house rules Merriweather was expected to abide by during his stay: (1) he would not bring home visitors, (2) he would not smoke cigarettes in the 21 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 22 of 124 house, (3) he would not bring alcoholic beverages into the house, and (4) he would clean up after himself. (Doc. 143, Comp. Hrg. Vol. II at 315). Merriweather broke all of these rules. (Id.). This prompted the Pattons to ask Merriweather to leave, which he did promptly.13 (Id. at 316). 60. Euknesha Patton testified that she continued to maintain contact with Merriweather and saw him the day before he robbed the Bessemer bank. (Doc. 143, Comp. Hrg. Vol. II at 317). She noted that Merriweather’s appearance disturbed her. (Id.). He wore dirty clothes and his manner of dress was different. (Id.). He had shaved his eyebrows and his head except for a patch of hair at the top of his head. (Doc. 143, Comp. Hrg. Vol. II at 317-18). Patton also described finding Merriweather practicing martial arts, chanting “Shaolin Monk, Shaolin Monk.” (Id. at 319). 61. On May 15, 2007, the day after the robbery, Merriweather was interviewed by detectives at the Jefferson County Jail. (Def. Ex. 16 at 1). During this interview, Merriweather’s speech remained rational, coherent, and composed, which was surprising given that he had been shot the day before. (Def. Ex. 16 at 3, 128). His responses, however, were noticeably evasive. On several occasions, Merriweather would try to delay answering a question. Merriweather professed to be ignorant of his mother’s ethnicity. (Def. Ex. 16 at 55). At one point, Merriweather simply told the investigators that he intended not to cooperate. (Def. Ex. 16 at 22) (“I’m going to look over here the whole time you’re talking to me today.”). 62. During that post-arrest interview in the Jefferson County Jail, Merriweather repeatedly indicated to law enforcement that there was an accomplice, despite insistence by the detectives that video surveillance of the robbery revealed no other party to the robbery. (Def. Ex. 16 at 19, 23, 27, 29). Merriweather avoided naming the alleged accomplice, and provided an 13 Patton could not recall the precise year when this happened. (Doc. 143, Comp. Hrg. Vol. II at 316). 22 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 23 of 124 evasive reply when questioned directly. (Def. Ex. 16 at 18) (“[Y]ou know, you can have all types of names.”). Merriweather never named the alleged accomplice at the interview. Deeply skeptical about the existence of such an accomplice, one of the interviewers, Agent Paul Watson, informed Merriweather that the charade was a waste of time because if he were to “go back and tell [investigators], well, Charles, was in the bank with [Merriweather]. . . then they’re actually going to be wasting their time [looking] for somebody that may not exist.” (Def. Ex. 16 at 88). 63. There is evidence that, on one occasion, Merriweather confided in his father about an incident where he was hearing voices. Suspecting drug use, Merriweather’s father asked Merriweather if he had been taking illicit drugs. (Doc. 24 at 7). Merriweather responded in the affirmative, which prompted Merriweather, Sr. to inform him that the voices should cease if Merriweather would stop taking drugs. (Doc. 24 at 7). Merriweather’s sister, Euknesha Kim Patton, recalled a similar experience that prompted her to ask Merriweather if he had been using drugs, and Merriweather admitted to her that he was. (Doc. 143, Comp. Hrg. Vol. II at 301). 2. Dr. Christina Pietz 64. Merriweather’s first court-ordered evaluation occurred at the United States Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP Springfield”) from November 2, 2007 to January 14, 2008. (Doc. 142, Comp. Hrg. Vol. I at 19; Gov’t Exs. 2, 3). Merriweather’s evaluation was overseen by Dr. Christina Pietz, a psychologist with 24 years of experience at MCFP Springfield. (Doc. 142, Comp. Hrg. Vol. I at 15). Dr. Pietz was the first witness called by the Government in both competency hearings. In her first evaluation of Merriweather, Dr. Pietz conducted six formal interviews totaling 12-15 hours, and informal 23 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 24 of 124 interviews in the course of routine rounds on Merriweather’s unit for 75 days. (Doc. 142, Comp. Hrg. Vol. I at 19-20, 32). 65. Over the course of Dr. Pietz’s first evaluation of Merriweather, Dr. Pietz administered five psychological tests: (1) the Validity Indicator Profile; (2) the Shipley Institute of Living Scale; (3) the Minnesota Multiphasic Personality Inventory; (4) the Evaluation of Competency to Stand Trial-Revised (ECST-R);14 and (5) the Structured Interview of Reported Symptoms. (Doc. 24 at 3). She also consulted daily with the mental health care and correctional staff members who kept Merriweather under constant observation and reviewed collateral information, such as Dr. Ackerson’s findings, investigative reports concerning the robbery, and Merriweather’s phone conversations after the arrest. (Doc. 142, Comp. Hrg. Vol. I at 24-26). 66. Dr. Pietz filed two reports with the court, one dealing with Merriweather’s competency to stand trial and another concerning Merriweather’s mental state at the time of the offense. (Doc. 24). In Dr. Pietz’s report on Merriweather’s competency to stand trial, she diagnosed Merriweather with adult antisocial behavior and attributed Merriweather’s behavior to polysubstance dependence. (Doc. 24 at 14). She concluded, “Merriweather does not currently suffer from a mental illness, and therefore, by definition does not meet the criteria for being found not competent.” (Doc. 24 at 14). Pietz based this conclusion on Merriweather’s responses to the psychological tests, his responses during interviews, and a review of relevant literature. (Tr. Vol. I, 63). Dr. Pietz ruled out malingering as a possible explanation for Merriweather’s behavior, noting 14 The Evaluation of Competency to Stand Trial-Revised (“ECST-R”) is a checklist of questions designed to measure a defendant’s ability to understand the nature and consequences of the proceedings against him, as well as his ability to assist his lawyers in his own defense. (Doc. 148, Comp. Hrg. Vol. VII at 1186). 24 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 25 of 124 that both she and Dr. Mirsky administered tests to detect malingering and neither doctor found evidence of malingering. (Doc. 142, Comp. Hrg. Vol. I at 67; 87. 67. Most notably, Dr. Pietz found that Merriweather’s scores on the ECST-R suggested no impairment in his ability to consult with his attorney or have a rational understanding of court proceedings. (Doc. 24 at 14). Indeed, Dr. Pietz indicated that Merriweather performed “exceptionally well” on the ECST-R – even better than one of her students. (Doc. 143, Comp. Hrg. Vol. II at 256; Doc. 142, Comp. Hrg. Vol. I at 59). 68. There was one exception to Merriweather’s otherwise strong performance on the ECST-R: his score suggested moderate impairment in his ability to have a factual understanding of court proceedings. (Doc. 24 at 14). Dr. Pietz found this result to be surprising given that Merriweather had clearly demonstrated that he had a factual understanding of court proceedings in other interviews. (Id.). When asked about the roles of various actors in legal proceedings, Merriweather was able to correctly identify the roles of the judge, the prosecutor, and the Defense counsel. (Id. at 15). He understood that a jury of 12-14 jurors would be selected from his community, though he did not know that a guilty verdict required a unanimous decision and stated that “[t]he role of the jury is to find the defendant guilty.” (Id.). When asked about possible pleas, Merriweather had no difficulty articulating his understanding of various pleas available to him. He explained, for example, that “[t]he insanity plea is…instructs that at that moment at the time of what happened, [Merriweather] wasn’t [him]self because of illegal drugs that [Merriweather] had taken…from the pills, marijuana and cocaine.” (Doc. 24 at 15). Merriweather demonstrated that he understood what it means to plead guilty or not guilty and the consequences of entering a plea bargain, commenting that “a defendant should discuss the options of a plea bargain with his 25 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 26 of 124 attorney.” (Id.). Merriweather further acknowledged that, if found guilty, he may receive “possible life in prison or the death penalty.” (Id.). 69. Conflicts among various statements given by Merriweather are not limited to discrepancies between his performance on the ECST-R and his answers in interviews. Dr. Pietz’s interviews with Merriweather are littered with references to inconsistent statements he made that, when taken together, reveal a pattern of evasive behavior undertaken by Merriweather to conceal the extent of his knowledge and culpability. For example, when asked about the charges against him, Merriweather initially claimed that he had no knowledge that he was charged with murder. (Doc. 24 at 14). In a subsequent interview, Merriweather acknowledged the murder charge and indicated that his attorney and investigating officers informed him of the charges against him soon after his arrest. (Doc. 24 at 14). When questioned about the events leading up to the arrest, Merriweather initially asserted that he could recall only a few details of the alleged offenses. (Doc. 24 at 14). During subsequent interviews, however, Merriweather provided clear, detailed, and coherent recollections of the robbery, including a written description of his memory of the events. (Doc. 24 at 15). 70. The details of the robbery provided by Merriweather, however, varied with each interview. One jarring inconsistency in Merriweather’s recollection of the robbery was his indication in earlier interviews of the presence of an accomplice named “Charlie.” (Doc. 24 at 15). During five of the first six interviews, Merriweather provided a different rendition of the robbery with Charlie featured in a new role with each telling. (Doc. 142, Comp. Hrg. Vol. I at 32-33). In one version, for example, Charlie took Merriweather to the bank to “cash a check.” (Id. at 33). In another version, Charlie was actually the person who got shot escaping the crime scene. (Id.). In yet another version, Charlie simply told Merriweather to follow him into the bank, placing 26 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 27 of 124 Merriweather at the wrong place at the wrong time. (Id.). From all of these accounts, Dr. Pietz was left with the impression that Merriweather was trying to minimize responsibility by “trying to blame others.” (Id. at 35). Dr. Pietz noted that when she directed Merriweather’s attention to a discrepancy between his stories and the investigative record, Merriweather would “try[] to come up with a different response that made more sense.” (Id.). 71. Merriweather requested the sixth interview he had with Dr. Pietz, and during that interview gave an account of the robbery in which “Charlie” was absent and Merriweather took responsibility for the robbery. (Doc. 142, Comp. Hrg. Vol. I at 34). In that interview, Merriweather stated that he had received a “message” that described the inside of the bank and the identity of the manager. (Id.). 72. While Merriweather gave different descriptions of his involvement in the bank robbery, Dr. Pietz found that there was never any doubt that Merriweather understood what he was charged with and why he was incarcerated. (Doc. 142, Comp. Hrg. Vol. I at 32-35). Dr. Pietz attributed these inconsistencies to evasive behavior rather than mental illness. (Id. at 34-35). 73. Further supporting her position that Merriweather was more likely manipulative than mentally infirm, Dr. Pietz found Merriweather’s speech and behavior to be inconsistent with symptoms typically associated with mental illness. Dr. Pietz testified that persons suffering from mental illness are disorganized in their thoughts and speech, struggle to provide information, and typically provide inaccurate information tainted by delusional thought. (Doc. 142, Comp. Hrg. Vol. I at 30). Concealing disorganized speech (and, therefore, concealing a mental illness) is not easy and will likely reveal itself over time during conversations or meetings involving persons genuinely suffering from a psychotic illness. (Id. at 54). Throughout Merriweather’s 75-day evaluation at MCFP Springfield, his speech was never observed to be disorganized, but was 27 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 28 of 124 instead described as rational, coherent, and organized. (Id. at 27-30, 41, 44, 46-47, 54-55). If anything, Dr. Pietz characterized Merriweather’s responses to questions relating to the robbery as “cautious.” (Doc. 143, Comp. Hrg. Vol. II at 272, 275). Merriweather’s behavior was similarly inconsistent with symptoms typical of mental illness. There were no signs of memory deficit. (Doc. 142, Comp. Hrg. Vol. I at 57). Merriweather maintained a clean cell and bathed regularly during his stay at MCFP Springfield. (Id. at 45). Merriweather was never mute, though he did take time to think through his responses. (Id. at 46, 57). 74. Dr. Pietz also found no negative signs of schizophrenia.15 With regard to positive signs of schizophrenia, there were two incidents that, if genuine, could be construed as evincing positive signs of schizophrenia. Dr. Pietz, however, found both instances to be suspect. (Doc. 142, Comp. Hrg. Vol. I at 51, 90). 75. In the first incident, Merriweather reported to Dr. Leanne Preston, the on-call psychologist, that he was seeing gremlins in his cell. (Doc. 142, Comp. Hrg. Vol. I at 39, 90). Merriweather told Dr. Preston that he thought he might be suicidal. (Id. at 40). Dr. Preston placed Merriweather under suicide watch, but wrote in her report that Merriweather’s claim that he saw gremlins was suspect. (Id.). Dr. Pietz, who was the medical professional charged with assessing him, found Merriweather’s claims to be questionable for at least five reasons. First, as Dr. Pietz noted, it is very rare for truly psychotic people to experience visual hallucinations. (Id.). Visual 15 The Diagnostic and Statistical Manual of Mental Disorders (DSM) is a manual compiled by the American Psychiatric Association that organizes and defines conditions that the American Psychiatric Association classifies as mental disorders. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2014). Schizophrenic symptoms are categorized into positive and negative signs. Positive signs include abnormally excessive expressions of mental functioning, such as hallucinations, disorganized speech, delusions, and grossly disorganized or catatonic behavior. Negative signs of schizophrenia include abnormally diminished functioning in speech and behavior, such as a flat affect and alogia. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 299 (4th ed. 2000). 28 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 29 of 124 hallucinations are actually more consistent with illicit substance abuse than psychosis. (Id.). Second, even in the rare cases when someone actually experiences visual hallucinations, the hallucinations are usually frightening and not casually mentioned. (Id. at 42). Third, people who complain about being suicidal are typically not truly suicidal since drawing attention to themselves increases the chances that a suicide attempt would be thwarted. (Id. at 41). Fourth, when placed under suicide watch, Merriweather was more upset about losing his privacy because of the constant surveillance imposed by the watch than he was due to any perceived gremlins or alleged suicidal tendencies. Indeed, Merriweather actually requested to be taken off suicide watch as soon as possible. (Id.). Finally, Dr. Pietz testified that generally hallucinations do not completely go away, even for psychotic individuals who are medicated. (Id. at 42). Merriweather did not mention gremlins when he requested to be taken off the suicide watch or anytime afterwards. (Id. at 41). Dr. Pietz therefore found Merriweather’s alleged hallucination suspect. (Id. at 40). 76. The second incident involved Merriweather scraping his arms with a spork. (Doc. 142, Comp. Hrg. Vol. I at 42). He told a nurse that there were bugs in the room, which may have been a visual hallucination. (Id.). Merriweather, however, did not seem overly concerned about it. (Id.). Dr. Pietz discounted this incident because visual hallucinations are typically sufficiently frightening to the patient to warrant more than a single, casual mention. (Id.). In this case, Merriweather mentioned the bugs casually, but did not appear disturbed by them nor did he mention seeing bugs in his room again. (Id.). 77. Based on her observations of Merriweather during his first 75-day evaluation at MCFP Springfield, his responses to psychological tests, and a review of collateral sources, Dr. Pietz found that Merriweather was not mentally ill. (Doc. 142, Comp. Hrg. Vol. I at 52-53). She diagnosed Merriweather with two disorders found in the Diagnostic and Statistical Manual of 29 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 30 of 124 Mental Disorders: substance-induced psychotic disorder, and adult antisocial behavior. (Doc. 549, Second Comp. Hrg. Vol. I at 18). She concluded that he was competent to stand trial.16 3. Dr. Bruce Berger 78. Reports from Drs. Gualtieri, Mirsky, and Landis were ultimately transmitted to the doctor charged with supervising Merriweather’s evaluation at FMC Butner, Dr. Bruce Berger, a board-certified forensic psychiatrist with more than 20 years of experience. Dr. Berger oversaw Merriweather’s evaluation during which he, with assistance from Dr. Jill Grant and a team of mental health professionals, observed Merriweather every day for 496 days, conducted four videotaped formal interviews, and reviewed the reports by the other expert examiners and collateral source information. (Doc. 145, Comp. Hrg. Vol. IV at 586). Based on this evidence, Dr. Berger concluded that Merriweather’s behavior could be best ascribed to drug use, not a psychotic disorder. On April 1, 2011, Dr. Berger issued a report in which he concluded that Merriweather “does currently possess the capacity to understand his current charges, understand courtroom functioning, and could, should he so choose, work affirmatively with his attorney in a rational way…[and that] he is competent to proceed.” (Gov’t Ex. 10 at 10). 79. In reaching his conclusion that Merriweather’s behavior results from drug use (as opposed to a psychotic disorder), Dr. Berger considered Merriweather’s history of substance use. During his initial interview, Merriweather reported that he had used substances, such as alcohol, marijuana, and cocaine, on a daily basis before the robbery. (Doc. 145, Comp. Hrg. Vol. IV at 604). Such drugs were not available to him during his stay at FMC Butner and Merriweather had 16 The ultimate question of whether Merriweather is competent to stand trial is a legal determination that the court must make. 30 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 31 of 124 never been prescribed psychotropic medication before arriving at FMC Butner, nor was he placed on any medication during his stay at FMC Butner (with the exception of a cream for dry skin, medication for constipation, and a nutritional supplement). (Id. at 588). 80. During Merriweather’s 496-day stay at FMC Butner, a time when he was neither treated for mental illness nor under the influence of drugs, Merriweather was generally not observed to exhibit psychotic behavior. Although Dr. Berger acknowledged that there are nurses’ notes17 suggesting that Merriweather may have been responding to internal stimuli and presented other behaviors that could be viewed as psychotic symptomology, Dr. Berger never observed Merriweather responding to stimuli nor were there any consistent reports of such symptoms from his staff. (Doc. 145, Comp. Hrg. Vol. IV at 598). Eugene Singleton, who interacted directly with Merriweather on a daily basis as one of several staff members who (while working) checked on Merriweather every 15 minutes, observed no significant behavioral problems. (Doc. 150, Comp. Hrg. Vol. VIII at 1266-67). Singleton noted simply that Merriweather’s behavior was fairly ordinary for someone waiting his time. (Id. at 1266). Consistent with Singleton’s observations, Dr. Berger mentioned that Merriweather maintained a clean cell (Id. at 1266-67, 1272), maintained acceptable hygiene (Doc. 145, Comp. Hrg. Vol. IV at 593-94), and exhibited no positive or negative signs of schizophrenia. (Id. at 593-94, 597-98, 610-11, 618, 621). Merriweather’s speech pattern was clear and sophisticated (Id. at 602, 605-06), and he had no difficulty communicating with staff. (Id. at 596-97). 81. Indeed, many of Merriweather’s actions indicate a rational mind at work. Merriweather repositioned the bed in his cell for greater privacy. (Doc. 145, Comp. Hrg. Vol. IV at 17 Nurses’ notes were a major point of emphasis during the Second Competency Hearing and will be addressed by the court infra. 31 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 32 of 124 594; Doc. 150, Comp. Hrg. Vol. VIII at 1272-73). As an additional assurance of privacy, he posted a “no solicitation” sign on his door. (Doc. 145, Comp. Hrg. Vol. IV at 598-99). When he obtained a radio that was nonoperational, Merriweather was able to successfully reconfigure it to work with the type of battery available to him. (Id. at 614). To pass the time, Merriweather also would often request novels and magazines to read. (Doc. 150, Comp. Hrg. Vol. VIII at 1268-69). 82. However, Merriweather also engaged in curious behavioral patterns that might potentially raise a suspicion of mental illness. Specifically, Merriweather, while at FMC Butner, as in other facilities, would undergo periods of protracted muteness, abstain from eating, and speak incoherently during taped interviews. (Doc. 145, Comp. Hrg. Vol. IV at 599, 589-93, 601-10). 83. Nonetheless, although he considered the possibility that Merriweather might be suffering from mental illness, in light of Merriweather’s demonstrated capacity for rational behavior, Dr. Berger eventually came to conclude that Merriweather’s infirmities were feigned. 84. With regard to Merriweather’s periods of protracted muteness, Dr. Berger explained that there is a difference between actual mutism and selective silence. Actual mutism refers to a situation where a patient cannot speak, even if the patient desires to communicate. (Doc. 144, Comp. Hrg. Vol. III, 433; Tr. Vol. IV, 599). Selective silence, on the other hand, describes a scenario where a patient is able to communicate when he chooses, but chooses not to communicate when it suits him. (Id. at 430). Dr. Berger found Merriweather able to communicate when it served Merriweather’s own interests. (Doc. 145, Comp. Hrg. Vol. IV, 596-97, 616). Therefore, Dr. Berger concluded that Merriweather’s silence was not a symptom of a mental disorder, but rather manipulative behavior. (Id.). 85. Similarly, Dr. Berger considered Merriweather’s eating patterns to be less indicative of a mental disorder than of a strong will and a willingness to use nutrition as leverage to 32 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 33 of 124 attain his goals. Merriweather consumed both sealed, pre-packaged meals (e.g., Ensure, T.V. dinners) as well as the regular trays provided at FMC Butner, so it did not appear that he was actually concerned about being poisoned. (Doc. 145, Comp. Hrg. Vol. IV at 591). He did, however, twice alter his eating habits in order to force the facility to place him under higher surveillance, which in turn meant that he was reassigned to a better cell. (Id. at 591-92, 617, 663). 86. Dr. Berger noted that Merriweather was calm and collected during the interviews, which was not something he would expect from someone who was decompensating. (Tr. Vol. IV, 605). After the first two interviews, Merriweather refused further interviews until Judge Ott issued an order compelling Merriweather to participate in the videotaped interviews. (Doc. 145, Comp. Hrg. Vol. IV at 606). During the recorded interviews, Merriweather pretended not to know who Dr. Berger was, despite communicating with him without difficulty on a daily basis when not being videotaped. (Id. at 601-04, 608-10; Gov’t Ex. 11). Merriweather was focused when the conversation was about routine matters. (Id. at 593). These behaviors led Dr. Berger to ultimately conclude that Merriweather (1) was not mentally ill, and (2) his unusual behavior represented various attempts to manipulate his environment.18 (Id. at 601-09). 4. Dr. Richard G. Dudley, Jr. 87. Dr. Richard G. Dudley Jr., a forensic psychiatrist, evaluated Merriweather for mental illness and testified for the Defense at the initial competency hearing. (Doc. 147, Comp. Hrg. Vol. VI at 912-17). Dr. Dudley has extensive experience in diagnosing and treating people 18 Although the Defense argues that he ignored nursing charts in performing his evaluation, Dr. Berger clarified that he reviewed the nurses’ progress notes and spoke directly to the nursing staff about Merriweather. (Doc. 145, Comp. Hrg. Vol. IV at 645). Moreover, Dr. Berger had prescribed that his staff check on Merriweather every 15 minutes. (Doc. 150, Comp. Hrg. Vol. VIII at 1266-67). 33 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 34 of 124 who are both schizophrenic and substance abusers based upon the time he spent running a community mental health clinic in Harlem, New York. (Id. at 940). Dr. Dudley met with Merriweather on three separate occasions. The first interview, conducted over two days, began on January 26, 2009. (Def. Ex. 9 at 2). Dr. Dudley also met with Merriweather on August 17, 2009 (Def. Ex. 66 at 1), and again on June 24, 2011, after Merriweather returned from his second extended evaluation at FMC Butner.19 (Def. Ex. 9 at 2). During that final meeting, however, Merriweather refused to communicate with Dr. Dudley. (Doc. 147, Comp. Hrg. Vol. VI at 946, 962, 1006-07). Altogether, Dr. Dudley estimates that he spent a total of 16 hours with Merriweather over the course of three sessions. (Id. at 921). Dr. Dudley also reviewed previous evaluations and other collateral sources of information regarding Merriweather’s background and history, which he considered vital to his evaluation. (Doc. 147, Comp. Hrg. Vol. VI at 920-21). 88. Dr. Dudley concluded that the most appropriate and accurate diagnosis was that Merriweather is a person who suffers from schizophrenia and who also uses drugs. (Doc. 147, Comp. Hrg. Vol. VI at 926-27). Dr. Dudley defined schizophrenia as “characterized by an episode of illness that lasts for approximately six months.” (Doc. 147, Comp. Hrg. Vol. VI at 927; see AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 2000) (DSM-5).20 That episode of illness, Dr. Dudley testified, has three phases: (1) a prodromal period where the person’s ability to function begins to deteriorate; (2) the active phase of the illness (which must span at least one month of that six-month period) where the 19 Dr. Dudley’s 2011 consultation with Merriweather lasted only a few minutes, so the vast bulk of his evaluation took place in 2009. Also, during his cross-examination, he admitted that while sitting in on two days of the hearings (prior to his own testimony), he did not look at or observe Merriweather during that time. 20 Dr. Dudley’s description of schizophrenia is consistent with the definition provided in the fourth edition of the DSM. 34 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 35 of 124 individual is exhibiting the full spectrum of schizophrenia symptoms, both positive and negative; and (3) a period afterwards that is similar to the prodromal period during which the person is pulling himself back together. (Id.). The course the illness may run varies; that is, individuals will alternate between periods of illness and stability. (Id.). Dr. Dudley stated that: [t]here are people who have some residual symptoms in between episodes of illness and then many people, if untreated, gradually deteriorate over time, and the residual symptoms that are there between episodes become more and more severe and so that it begins to look like a pattern of continuous illness with the onset of this whole disorder. (Id. at 928). 89. Dr. Dudley testified that the symptoms Merriweather’s family recounted were exhibited by Merriweather, 21 and the change in Merriweather’s condition between Dudley’s initial interview in 2009 and what he saw in 2011, were consistent with “classic” schizophrenia. (Doc. 147, Comp. Hrg. Vol. VI at 928-29, 957). 90. Dr. Dudley testified that when he saw Merriweather in 2009, Merriweather was verbal, but disorganized and distracted. Merriweather appeared to be responding to internal stimuli, and his responses were bizarre. According to Dr. Dudley, Merriweather evinced no understanding of the nature of the case, the charges against him, and the possible outcomes of his case. Merriweather talked about his imminent release and expressed the view that he had been held longer than he expected. Dr. Dudley found Merriweather’s affect to be flat, and testified that Merriweather would interrupt him with inappropriate laughter. In a subsequent meeting in 2009, 21 Much of Dr. Dudley’s understanding of Merriweather’s life before the robbery appears to have come from Patton and Simpson. For reasons mentioned earlier, the court finds that the testimony of Merriweather’s sister and former girlfriend regarding his condition before the robbery were inconsistent in some important aspects. 35 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 36 of 124 Merriweather expressed to Dr. Dudley that he felt he was at risk of being harmed, perhaps poisoned. (Doc. 147, Comp. Hrg. Vol. VI at 943-44). 91. An important factor in Dr. Dudley’s diagnosis was Merriweather’s substantial weight loss. (Doc. 147, Comp. Hrg. Vol. VI at 923-30, 996). He did, however, concede that Merriweather’s later decision to continue eating, arising from his aversion to the needles and tubes that would have been used to inject nutrition into him, reflected a choice by Merriweather to realize a clear preference. (Id. at 1022). 92. Also important to Dr. Dudley’s evaluation was Merriweather’s refusal to communicate with him during Dr. Dudley’s visits to the Shelby County Jail in June 2011. (Doc. 147, Comp. Hrg. Vol. VI at 946). Dr. Dudley interpreted Merriweather’s refusal to communicate with him showing that he was unable to communicate. (Id. at 951).22 93. Dr. Dudley dismissed the role of illicit drugs in the context of Merriweather’s diagnosis because (1) Merriweather’s symptoms seemed to be present when he was not using drugs, and (2) there was a lack of information to identify a drug, or indicate that drugs were used in the quantity or for the duration necessary to cause the symptoms. (Doc. 147, Comp. Hrg. Vol. VI at 925). However, Dr. Dudley did note that, in addition to marijuana use, there is evidence that Merriweather used other illegal drugs.23 (Id. at 958, 978). 22 Dr. Dudley interpreted this as an inability to communicate, rather than unwillingness to do so. This conclusion is questionable, however, because the day after Merriweather failed to speak with Dr. Dudley, Merriweather engaged in an extended conversation with his lawyers and Jack Early. (Doc. 146, Comp. Hrg. Vol. V at 823). 23 Dr. Dudley’s approach to analyzing the potential for drug use is, at best, puzzling. The record has both anecdotal and empirical evidence of Merriweather’s drug use, including (1) Merriweather’s self-reports of the use of other drugs and (2) the lab tests conducted at UAB on the day after the bank robbery that indicate his use of opiates. (Doc. 142, Comp. Hrg. Vol. I at 103-04; Def. Ex. 15 at 18). Moreover, even if the court were to only consider the anecdotal evidence in isolation, Dr. Dudley selectively credited certain reports (e.g., reports that Merriweather was obsessed with the letter “C”), but dismissed others (e.g., that Merriweather was a frequent drug user) in reaching his 36 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 37 of 124 94. Dr. Dudley considered but ruled out malingering, in part because mimicking the negative symptoms of schizophrenia, even if one were to assume that the patient knows what they are, would be difficult. (Doc. 147, Comp. Hrg. Vol. VI at 937-39). Dudley admitted, however, that he was unfamiliar with the Test of Memory Malingering (“TOMM”) and was not an expert in malingering. (Id. at 956, 1003). 95. Dr. Dudley recommended to counsel that a neurological expert be retained to determine, among other things, whether scans and MRIs of Merriweather’s brain were normal. (Doc. 147, Comp. Hrg. Vol. VI at 953). 5. Dr. James Merikangas 96. On April 30, 2009, while Merriweather was still incarcerated in the Jefferson County Jail, Dr. James Merikangas, a board-certified forensic neuropsychiatrist retained by the Defense, interviewed Merriweather for one and a half to two hours. (Doc. 148, Comp. Hrg. Vol. VII at 1128). In connection with this meeting, Dr. Merikangas reviewed extensive collateral material and requested an MRI and a PET scan of Merriweather’s brain to detect any physical abnormalities. (Id. at 1129). During the initial meeting, Dr. Merikangas formed an impression that Merriweather was psychotic, suffered from hallucinations, ideas of reference, ideas of influence, and that his grasp on reality was impaired. Merriweather reported to Dr. Merikangas that television presenters were speaking directly to him, he thought that he could control people with his thoughts, and once asked if they were in a movie. Dr. Merikangas observed positive symptoms of schizophrenia – namely, paranoia, hallucinations, and delusions. (Id. at 1129-31). diagnosis. 37 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 38 of 124 97. Two years later, in June 2011, Dr. Merikangas visited Merriweather for a second time. This occurred after Merriweather had returned from custodial evaluations at FMC Butner. Dr. Merikangas reported that he attempted to interview Merriweather in a small attorney-client room, this time at the Shelby County Jail, but Merriweather remained quiet during the meeting. (Doc. 148, Comp. Hrg. Vol. VII at 1146). Dr. Merikangas returned the next day to assess whether Merriweather was competent to stand trial using the ECST. (Id. at 1149). Dr. Merikangas also reviewed records from Merriweather’s stay at FMC Butner, jail records from the Shelby County Jail, and reports and interviews conducted by other medical experts. (Doc. 148, Comp. Hrg. Vol. VII at 1147). 98. Dr. Merikangas found that Merriweather is unable to cooperate with counsel. (Doc. 148, Comp. Hrg. Vol. VII at 1144). Dr. Merikangas concluded that Merriweather’s lack of cooperation with counsel was due to an inability to communicate (rather than a deliberate refusal to do so), and was not the result of malingering. Dr. Merikangas reached the conclusion that Merriweather is not malingering based on two observations: (1) it is difficult to maintain a lie for an extended period of time and Merriweather’s behavior was consistent during his 16-month stay at FMC Butner, and (2) Merriweather has no incentive to lie. (Id. at 1151, 1163). With regard to the first observation, Dr. Merikangas stated that “the real determinative thing is to have observations of the patient over a period of time as there are very few people who can totally fake their illnesses in ways that are consistent with their disease under 24-hour observation for weeks and months at a time.” (Id. at 1126).24 When asked whether he thought Merriweather has an 24 The court finds this statement perplexing given Dr. Merikangas’s opinion regarding Dr. Berger’s evaluation in this case. Dr. Merikangas, who interviewed Merriweather for no more than two hours (Doc. 148, Comp. Hrg. Vol. VII at 1129), criticized the evaluation by Dr. Berger, who interviewed Merriweather over the 38 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 39 of 124 incentive to malinger, Dr. Merikangas initially testified that Merriweather has no incentive to misrepresent his current mental capacity because the result of this competency determination will merely decide whether Merriweather spends the rest of his life in prison or the rest of his life in a hospital setting. (Doc. 148, Comp. Hrg. Vol. III at 163). Of course, as Dr. Merikangas’s response makes clear, he failed to take into account that the death penalty is being sought in this case.25 The court rejects Dr. Merikangas’s opinion that Merriweather has no incentive to malinger in this case. (Id. at 1163-64). 99. Based on his interviews and a review of these records, Dr. Merikangas concluded that Merriweather suffers from psychosis due to schizophrenia and recommended that Merriweather be given antipsychotic and mood-stabilizing medication. (Doc. 148, Comp. Hrg. Vol. VII at 1142-43). Dr. Merikangas opined that Merriweather is not competent to stand trial because of his psychosis due to schizophrenia and his inability to cooperate with counsel. (Doc. 148, Comp. Hrg. Vol. III at 1144). 100. In reaching his conclusion that Merriweather is afflicted with psychosis due to schizophrenia, Merikangas relied upon MRI and PET scan images.26 While testifying about his course of 16 months, as “negligent” (Doc. 148, Comp. Hrg. Vol. VII at 1145), “deficient,” and “incompetent.” (Doc. 148, Comp. Hrg. Vol. VII at 1152). The court concludes that, even applying Dr. Merikangas’ “real determinative” test, Dr. Berger was in a much better position to evaluate Merriweather on a consistent basis. 25 Given Dr. Merikangas’s vehement opposition to the death penalty (discussed more fully below), the court concludes he would have to be extremely naive to not have comprehended that the United States seeks imposition of the death penalty in this case. The court does not believe Dr. Merikangas is so naive. 26 All of the medical experts, including Dr. Merikangas, agree that brain imaging cannot be used to diagnose schizophrenia. (Doc. 148, Comp. Hrg. Vol. VII at 1137, 1139-40, 1188). While Dr. Merikangas testified that brain imaging can reveal abnormalities commonly found in people with mental diseases, such as schizophrenia, or any other disease that affects the brain, he cautioned that these images should not be used to reach a diagnosis. (Doc. 148, Comp. Hrg. Vol. VII at 1139-40). “There is,” Dr. Merikangas admitted, “no objective test for schizophrenia.” (Doc. 148, Comp. Hrg. Vol. VII at 1207). 39 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 40 of 124 interpretation of the MRI and PET scan images, Dr. Merikangas directed attention to thinning in the posterior corpus callosum and atrophy in the right parietal lobe. (Tr. Vol. VII, 1135-36, 1138). However, Dr. Merikangas acknowledged that the thinning of cerebral tissue like that observed in the images could be symptomatic of a large number of medical conditions, including but not limited to lupus, autoimmune diseases, post-encephalitis, some types of demyelinating disease, traumatic brain injuries, a viral infection that affects the brain (such as measles or HIV), and metabolic disturbances like thyroid diseases or disorders of calcium metabolism. (Doc. 148, Comp. Hrg. Vol. VII at 1141). 101. Furthermore, Dr. Merikangas cautioned that he did not conduct the scans himself and that the images he presented to the court are “for illustrative purposes.” He noted that he “wouldn’t presume to look at [the scans] and say [he could] make a diagnosis from these tiny images.” (Doc. 148, Comp. Hrg. Vol. VII at 1139-40). Nevertheless, Dr. Merikangas diagnosed “psychosis because of schizophrenia” based on the MRI and PET scan images. (Doc. 148, Comp. Hrg. Vol. VII at 1141-42). Dr. Merikangas noted that the type of atrophy observed in the images is frequently seen in patients with schizophrenia. (Id. at 1134-39). He further testified that the brain abnormalities observed cannot be the result of teenage or adult substance abuse because studies have shown that the brain abnormalities caused by illicit substances are of an entirely different nature. (Id. at 1142). 102. After meeting with Merriweather and reviewing the brain scans, Dr. Merikangas recommended that Merriweather be prescribed anti-psychotic and mood-stabilizing drugs. (Tr. Vol. VII, 1142). Based on one and a half to two hours spent with Merriweather, Dr. Merikangas concluded that Merriweather suffers from a mental disease, most likely schizophrenia, that should be medicated, and is not competent to stand trial. (Id. at 1143-44). Dr. Merikangas conceded that a 40 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 41 of 124 schizophrenic could still be found competent to stand trial, citing the case of Ted Kaczynski.27 (Doc. 148, Comp. Hrg. Vol. VII at 1156). 103. Since 1998, Dr. Merikangas has testified in 97 murder proceedings, twice for the prosecution or the court and 95 times for the Defense. (Doc. 148, Comp. Hrg. Vol. VII at 1165). He acknowledges that he is a staunch opponent of the death penalty and believes it should be abolished. (Doc. 148, Comp. Hrg. Vol. VII at 1165-66). 104. Shortly before the second competency hearing, the Defense filed an affidavit from Dr. Merikangas dated July 8, 2014. (Doc. 509-2, sealed). The court has reviewed that document. In September 2013, Dr. Merikangas met again with Defendant and later reviewed the additional records from FMC Butner which included the ESH/AD status forms and the clinical encounters with Mr. Merriweather. Dr. Merikangas maintained his opinion that Merriweather suffers from schizophrenia and is incompetent to stand trial. The court has considered the affidavit, but is aware that the Government was not given an opportunity to test the conclusions in it through cross-examination. Thus, the court accords the affidavit the evidentiary weight appropriate under the circumstances. 6. Dr. C. Thomas Gualtieri 105. In accordance with Judge Ott’s order requiring Merriweather’s competency evaluation at FMC Butner to include input by a neurologist and/or a neuropsychiatrist (Doc. 79 at 27 Between 1978 and 1995, Theodore John “Ted” Kaczynski (born May 22, 1942), also known as the “Unabomber,” engaged in a nationwide bombing campaign against modern technology, planting or mailing numerous homemade bombs, killing three people and injuring 23 others. See generally Adam K. Magid, The Unabomber Revisited: Reexamining the Use of Mental Disorder Diagnoses as Evidence of the Mental Condition of Criminal Defendants, 84 IND. L.J. SUPPLEMENT 1 (2009) (discussing the implications of a diagnosis of paranoid schizophrenia on the criminal proceedings against Ted Kaczynski). 41 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 42 of 124 14), Dr. C. Thomas Gualtieri, a board certified psychiatrist with 42 years of medical experience, was asked by FMC Butner’s chief psychiatrist, Dr. Jean Zula, to conduct an independent neuropsychiatric evaluation of Merriweather while he was at FMC Butner. (Doc. 144, Comp. Hrg. Vol. III at 381, 385; Gov’t Exs. 5 & 6). 106. Dr. Gualtieri’s evaluation consisted of an approximately two and a half to three hour interview and testing conducted on May 19, 2010. (Doc. 144, Comp. Hrg. Vol. III at 389-99). During Dr. Gualtieri’s evaluation, Merriweather was calm, polite, attentive, sufficiently groomed, spoke in a level voice, and was able to appropriately sit in his chair and establish good eye contact. (Doc. 144, Comp. Hrg. Vol. III at 401-02, 463, 498, 502; Gov’t Exs. 6, 7, and 8). 107. When engaged in small talk with Dr. Gualtieri, Merriweather behaved appropriately and gave straightforward answers. (Tr. Vol. III, 401). When questioned about the robbery or other serious matters, however, Merriweather became evasive, playful, and nonsensical. (Doc. 144, Comp. Hrg. Vol. III at 402; Gov’t Exs. 6, 7, and 8). Similar to his behavior during the videotaped interviews with Dr. Berger, Merriweather’s responses to Dr. Gualtieri’s questions were often circuitous, circumstantial, and flowed like a stream of consciousness. (Doc. 144, Comp. Hrg. Vol. III at 402, 452-54; Gov’t Exs. 6, 7 and 8). Dr. Gualtieri detected, however, that Merriweather was “focused very clearly during the entire evaluation on what was in his interests.” (Doc. 144, Comp. Hrg. Vol. III at 403). 108. Dr. Gualtieri testified that Merriweather’s test results suggest that Merriweather was malingering. (Id. at 417). Dr. Gualtieri found that Merriweather had performed well on hard tests, but poorly on easy tests, a pattern that he associated with malingering. (Id. at 417). Merriweather performed worse in subsequent administrations of the Verbal Fluency Test, which suggested malingering to Dr. Gualtieri. (Tr. Vol. III, 421). When interpreting tests for malingering, 42 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 43 of 124 Dr. Gualtieri emphasized that not finding malingering on a malingering test does not necessarily mean that the person is not malingering. (Doc. 144, Comp. Hrg. Vol. III at 423). 109. Based on his interview, test results, and a review of relevant literature, Dr. Gualtieri testified that he thought that Merriweather is competent to stand trial.28 (Doc. 144, Comp. Hrg. Vol. III at 438-39). 7. Dr. Allan F. Mirsky 110. Dr. Allan F. Mirsky, a neuropsychologist with over 50 years of experience in the field, was, like Dr. Gualtieri, asked to conduct additional psychological testing of Merriweather at FMC Butner pursuant to Judge Ott’s order. (Doc. 147, Comp. Hrg. Vol. VI at 1032, 1043-46). Dr. Mirsky has devoted much of his 50-year career to the study of schizophrenia. (Id. at 1032-43). During his extensive career, Dr. Mirsky conducted three or four other competency determinations before evaluating Merriweather. (Id. at 1085). To evaluate Merriweather’s mental condition, Dr. Mirsky interviewed Merriweather for about four and a half hours at FMC Butner. (Id. at 1089-90). 111. During the interview, Dr. Mirsky conducted several tests of Merriweather’s mental performance, including tests he developed himself to detect attention deficits. (Tr. Vol. VI, 1045). The first test, the Test of Sustained Attention, measures the ability of the patient to respond to the letter X when it appeared among other letters of the alphabet. (Id. at 1049). The second test, the AX-Test, requires the patient to respond to the letter X if it follows the letter A. (Id.). The third test, the Auditory Tone Test, requires the patient to distinguish one tone from other tones. (Id.). Dr. 28 At the risk of redundancy, the court again notes that the ultimate question of whether Merriweather is competent to stand trial is a legal determination that the court must make. 43 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 44 of 124 Mirsky also subjected Merriweather to the Wisconsin Card Sorting Test, the TOMM, the Test of Verbal Fluency, and the Reciprocal Motor Programs Test. (Id. at 1048-50). 112. Merriweather performed poorly on the Test of Sustained Attention, the AX-Test, the Auditory Tone Test, and the Wisconsin Card Sorting Test. (Doc. 146, Comp. Hrg. Vol. VI at 1050). Dr. Mirsky testified during the hearing that he believed the results of these tests were consistent with a diagnosis of schizophrenia. (Id. at 1051). Current research, Dr. Mirsky stated, suggests that schizophrenia is a disease of attention deficits and verbal memory deficits. (Id. at 1043-44). 113. On the other hand, Merriweather performed within the normal range on the Test of Memory Malingering (TOMM), the Test of Verbal Fluency, and the Reciprocal Motor Programs Test. (Doc. 146, Comp. Hrg. Vol. VI at 1051). Dr. Mirsky interpreted these results to mean that Merriweather was not malingering because “somebody who is faking a disorder just does poorly on everything.” (Doc. 146, Comp. Hrg. Vol. VI at 1051). Further, Dr. Mirsky noted, the TOMM failed to detect malingering. (Doc. 146, Comp. Hrg. Vol. VI at 1048). Dr. Mirsky trusted that Merriweather was not malingering because, he noted, it is very difficult for a person, even one who is familiar with the disease’s features, to mimic the symptoms of schizophrenia. (Doc. 146, Comp. Hrg. Vol. VI at 1060). 114. The Government asserts that Dr. Mirsky never firmly opined that Merriweather was incompetent, only that certain test results suggest that conclusion. (Doc. 152 at 38). In any event, his failure to probe into such things as Merriweather’s understanding of (1) the charges against him, (2) the role of his lawyers, the prosecution, and the court, (3) the facts of the case, (4) the nature of the proceedings, and (5) the elements of the crime (as well as defenses available to him) has rendered his opinion testimony less than helpful. 44 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 45 of 124 115. Shortly before the second competency hearing, the Defense filed an affidavit from Dr. Mirsky dated July 7, 2014. (Doc. 509-1, sealed). The court has reviewed Dr. Mirsky’s affidavit. In September 2013, Dr. Mirsky met with Defendant, and based upon that interview, Dr. Mirsky continues to believe–for the reasons stated herein–that Defendant suffers from a major mental illness and is incompetent to stand trial. Dr. Mirsky also stated that he administered several tests designed to detect malingering or that contained scales that would expose malingering. Dr. Mirsky found that Merriweather was not malingering on any of the tests. (Doc. 509-1 at 3). Dr. Mirsky also found that Merriweather’s I.Q. score dropped fifteen points, which Dr. Mirsky attributed to the trajectory of schizophrenia. (Id.). The court has considered this affidavit, but is aware that the Government has not had an opportunity to test the truth or credibility of Dr. Mirsky’s findings through cross-examination. The court this gives this affidavit appropriate weight in light of the circumstances. 8. Dr. Edward E. Landis 116. Dr. Edward E. Landis, Ph.D., the deputy chief psychologist at FMC Butner, reviewed and analyzed all psychological testing performed on Merriweather in preparation for Dr. Berger’s evaluation report, including the tests administered by Dr. Mirsky. (Doc. 150, Comp. Hrg. Vol. VIII at 1282, 1286, 1287-88). Dr. Landis has worked at FMC Butner for approximately 25 years and has testified 137 times in criminal proceedings, primarily on competency issues. 117. Dr. Landis criticized Dr. Mirsky’s approach to diagnosing Merriweather with schizophrenia. Rather than observe Merriweather for positive or negative signs of schizophrenia, Dr. Mirsky tested Merriweather’s mental performance and found attention deficits. While there is a theoretical connection between schizophrenia and some lower-level functional processes, such 45 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 46 of 124 as attention and concentration, attention deficits are not generally accepted as a primary symptom in diagnosing schizophrenia. (Doc. 150, Comp. Hrg. Vol. VIII at 1292). Under current standards and accepted diagnosing criteria, Dr. Landis commented, schizophrenia cannot be diagnosed based on deficits in cognitive processing, such as attention. (Id. at 1298-99). Testing that endeavors to identify deficits in attention, while useful in recovery and rehabilitation, is presently not accepted and will not be accepted in the foreseeable future as part of the differential diagnosis system for diagnosing schizophrenia. (Id. at 1299). 9. Jack Earley 118. Mr. Jack Earley, a California-based public defender retained by the Defense, accompanied Mr. Jaffe and Mr. Drennan to see Merriweather on June 27, 2011. (Doc. 146, Comp. Hrg. Vol. V at 819). Merriweather was initially unresponsive; however, as the three began to leave, a guard stopped them and told them that Merriweather recognized Mr. Jaffe and wished to speak with him. (Id. at 822). This eventually led to a conversation that lasted hours. (Id. at 823). Among the issues discussed during the conversation, Mr. Earley recalled that Merriweather was dismissive of the efficacy of retaining additional medical experts, telling his lawyer that “the judge was the one that was going to make the ultimate decisions in the case, and the judge didn’t need to hear from defense lawyers or a defense doctor, especially since he already had doctors that he could rely upon.” (Id. at 833). Earley testified that Merriweather’s speech during this conversation, while somewhat incoherent to others, seemingly was organized to Merriweather. (Id. at 838). B. Testimony Presented at the 2014 Competency Hearing 119. At the Second Competency Hearing, the court heard testimony from seven expert witnesses: one called by the Government (Dr. Christina Pietz), and three called by the Defense 46 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 47 of 124 (Drs. Mark Cunningham, Alex Stalcup, and Bruce Berger).29 The court also heard testimony from thirteen lay witnesses, including correctional staff from MCFP Springfield, the Shelby County Jail, the Atlanta Federal Penitentiary, and nine nurses from FMC Butner. 1. Dr. Christina Pietz’s Second Evaluation of Merriweather 120. As previously discussed, Dr. Pietz reevaluated Merriweather at MCFP Springfield in November 2013 and was recalled by the Government at Merriweather’s Second Competency Hearing. (Doc. 549, Second Comp. Hrg. Vol. I). 121. When Defendant arrived at MCFP Springfield for his criminal responsibility evaluation, he was initially seen by Dr. Lea Preston on November 1, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 21; GX 33 at 3). Dr. Preston was initially concerned about Merriweather’s affect because he was exhibiting disorganized thinking, which could have been an indication of psychosis. (See GX-33 at 3). Unlike the first time that Dr. Preston interviewed Merriweather in 2011, Merriweather was more evasive and less forthcoming during the November 2013 interview. (Doc. 549, Second Comp. Hrg. Vol. I at 23). 122. A few days later, Dr. Pietz met with Defendant. (Doc. 549, Second Comp. Hrg. Vol. I at 24). Dr. Pietz shared Dr. Preston’s initial concerns about Merriweather’s presentation, as he exhibited the same disorganized and tangential speech in the interview with Dr. Pietz. (Doc. 549, Second Comp. Hrg. Vol. I at 23; GX-33 at 4). Those concerns continued when Dr. Pietz saw Defendant on November 8, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 24). Defendant again presented as organized and coherent at times, but disorganized at other times. (Id.). Dr. Pietz reported that Merriweather occasionally had word-finding difficulties, but then would also adopt 29 To be clear, Dr. Berger was called by the Defense as an adverse witness. 47 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 48 of 124 evasive behaviors such as asking Dr. Pietz questions in response to her questions. When Dr. Pietz refused to answer personal questions, Merriweather would respond that he would not answer her questions either. (Doc. 549, Second Comp. Hrg. Vol. I at 25). This was different than his initial presentation when at MCFP Springfield. 123. Dr. Pietz requested one of her colleagues, psychiatrist Dr. Carlos Tomelleri, to interview Defendant with her on November 13, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 27). Defendant again presented as disorganized, tangential, and difficult to follow, leading Dr. Tomelleri to suspect psychosis. (Id. at 28). Dr. Tomelleri was also concerned about Defendant’s statements that he did not know what his charges were or that he was facing the death penalty (Id. at 28-29). When Dr. Tomelleri asked Merriweather open-ended questions, Merriweather responded with an unrelated (but nevertheless organized) story. (Id. at 29). 124. Soon after these concerns arose, Dr. Pietz asked a staff member at FPMC Springfield, Correctional Counselor Felicia Williams, about Merriweather. Williams told Dr. Pietz that she believed Merriweather understood his charges and why he was at Springfield. (Doc. 549, Second Comp. Hrg. Vol. I at 30). Williams said that while asking Merriweather about his emergency notification information, Merriweather asked Williams if she was a St. Louis Rams fan. (Id. at 32). When she told him she was actually a Kansas City Chiefs fan, he noted that at that time the Chiefs were undefeated (which was accurate). (Id. at 32). Williams said that she found Defendant was coherent and rational and that he clearly answered her questions. (Id.). 125. Dr. Pietz attempted to reinterview Merriweather on November 19, 2013. He said he would not speak about his case without his legal counsel being present. (Doc. 549, Second Comp. Hrg. Vol. I at 36-37). Merriweather again told unrelated stories when Dr. Pietz asked him questions. (Id. at 32). However, Dr. Pietz noted that while Merriweather at times seemed 48 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 49 of 124 perplexed, he could follow the thread of a conversation. Dr. Pietz suspected that Merriweather was intentionally evading her questions to manipulate the conversation. (Id.). Merriweather also refused to take the Minnesota Multiphasic Personality Inventory (MMPI) on three occasions while at Springfield the second time. (Doc. 549, Second Comp. Hrg. Vol. I at 24, 41-42). He had taken the MMPI during his first stay at Springfield. 126. Merriweather maintained that he did not know his charges in an interview Dr. Pietz conducted on November 22, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 43). Dr. Pietz called upon Dr. Robert Sarrazin, Chief of Psychiatry at Springfield, to get his impression of Merriweather. After speaking with Merriweather, Dr. Sarrazin concluded that Merriweather did not have a mental illness. (Id. at 45). 127. Dr. Pietz received Judge Ott’s order that all interviews must be videotaped. Dr. Pietz videotaped her interview with Merriweather on November 27, 2013. (Doc. 549, Second Comp. Hrg. Vol. I at 46; GX-19). Dr. Pietz observed that Merriweather’s answers during that interview were coherent and organized. (Id.). He did not appear to experience any visual or auditory hallucinations. (Id. at 48, 52). The staff at FPMC Springfield denied seeing Merriweather experience any hallucinations. (Id. at 53). At times, Merriweather refused to answer or evaded answering questions, but Dr. Pietz concluded that he was doing this intentionally. Merriweather, in Dr. Pietz’s view, understood the legal process and what roles the judge and his lawyers had in his case. (Id. at 49). Merriweather was not taking any antipsychotic medications while at MCFP Springfield. (Doc. 549, Second Comp. Hrg. Vol. I at 23 at 80). 128. Following the November 27th recorded interview, Merriweather stopped speaking with Dr. Pietz. (Doc. 549, Second Comp. Hrg. Vol. I at 54). Instead, he used hand gestures to pantomime answers to Dr. Pietz’s questions, which she interpreted as an unwillingness to speak 49 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 50 of 124 about the offense – as opposed to signs of schizophrenia or psychosis. (Id. at 54-55). On December 19, 2013, the last morning that Dr. Pietz asked Merriweather to speak with her, he again pantomimed a response, which she interpreted as a “no.” (Id. at 58). 2. Dr. Pietz’s Assessment of Other Evaluators’ Findings 129. Dr. Pietz disagreed with the other evaluators, namely Drs. Cunningham and Stalcup, who found that Merriweather was schizophrenic. (Doc. 549, Second Comp. Hrg. Vol. I at 66). Those behaviors that other evaluators saw as indicating mental illness, Dr. Pietz interpreted as malingering or exaggerating symptoms of mental illness. For example, Dr. Stalcup, recounted Merriweather’s behavior when, during an interview with his counsel, he “abruptly fell mute, looked dazed for 20 several seconds, and then woke up saying, ‘Whoa, I think I went off on a fantasy there. I don't represent it,’” as an example of psychosis. (Def. Ex. 193). Dr. Pietz construed the incident instead as an attempt to malinger mental illness. (Doc. 549, Second Comp. Hrg. Vol. I at 81).30 She concluded that Merriweather’s “alleged psychosis appeared when he didn't want to be cooperative, when he didn't want to answer certain questions. But then when there was something that was important to him, like he wanted a commissary list or he wanted to talk about food or he wanted to talk to staff about something, there was no evidence of any psychotic behavior.” (Id. at 93). 130. Dr. Pietz also disagreed with the opinion of Dr. Mark Cunningham, who felt that Dr. Pietz overemphasized Merriweather’s drug use and misattributed his unusual preoffense behavior and reports of hallucinations and delusions to the effects of drug use. (Doc. 549, Second 30 Dr. Pietz did agree with some of the other evaluators’ findings, such as one by Dr. Stalcup, who observed in his report that “[o]n occasion, he [Merriweather] purposefully changed the subject to avoid answering the question in apparently purposeful behavior.” (Id. at 83). 50 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 51 of 124 Comp. Hrg. Vol. I at 84; Def. Ex. 190 at 45). Dr. Cunningham, as discussed below, found that Merriweather’s behaviors and visions were better diagnosed as “a prodromal phase of schizophrenia.” (Doc. 549, Second Comp. Hrg. Vol. I at 88). In contrast, Dr. Pietz attributed Merriweather’s preoffense behaviors that Dr. Cunningham felt were negative signs of schizophrenia -- such as lapses in personal hygiene, having an unkempt house, and not showing up for work -- to drug abuse. (Id. at 124). Dr. Pietz noted that Merriweather reported heavy drug use and having hallucinations after using drugs, both of which his family confirmed. (Id. at 88-91). 131. Dr. Pietz acknowledged that some of Merriweather’s behaviors, particularly during the offense, were inexplicable. One behavior during the offense seemed to indicate that Merriweather believed that he had a premonition or vision of the bank manager of the bank before the robbery, telling Dr. Pietz, “I got a message.” (Doc. 549, Second Comp. Hrg. Vol. I at 161). During the robbery, Merriweather told a bank employee that she looked like the bank manager (whom Merriweather had envisioned). Dr. Pietz said that she could not tell if Merriweather had fabricated having the vision because he had given six versions of what happened on the day of the offense. (Id.). 132. Dr. Pietz found that Merriweather showed no positive signs of schizophrenia (such as delusions, hallucinations or catatonic or disorganized behavior). (Doc. 549, Second Comp. Hrg. Vol. I at 68-69). Initially, Dr. Pietz was concerned about Merriweather’s disorganized speech and mutism, but felt that neither was indicative of schizophrenia. (Id. at 69, 74). While Dr. Pietz observed that Merriweather has a flat affect, she did not believe his presentation to indicate schizophrenia. (Id. at 69). She saw no signs of disorganization in his cell. (Id. at 56). Dr. Pietz did conclude, however, that Merriweather was showing symptoms that “would suggest some sort of psychotic disorder,” and because she did not believe that he suffered from psychosis, she 51 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 52 of 124 concluded that he was malingering. (Id. at 76). Overall, she concluded in her most current evaluation of Merriweather that he is competent to stand trial and that he is malingering memory deficits and psychotic symptoms. (Id. at 120, 252). 3. Felicia Williams 133. Felicia Williams is a correctional counselor at MCFP Springfield, Missouri, where she has worked for twelve years. Williams worked in the mental health unit when Merriweather was at MCFP Springfield. (Doc. 551, Second Comp. Hrg. Vol. II at 315). As a liaison between the institution’s staff and the inmates, Williams has ongoing interaction with prisoners at MCFP Springfield. (Id. at 316). She formally interviewed Merriweather twice when he was at MCFP in November 2013 and saw him occasionally in his cell when she was on her rounds. (Id. at 328). 134. Dr. Christina Pietz asked Felicia Williams to speak to Merriweather when he refused to speak with her. (Doc. 549, Second Comp. Hrg. Vol. I at 322). In a conversation with Merriweather, Williams viewed him as clean, coherent, and intelligent. Merriweather denied experiencing any hallucinations. (Id. at 320). He declined to give an emergency contact for any of his family members. (Id. at 346). 135. Merriweather freely spoke about his background and family; Williams observed nothing odd in his speech or affect. (Id. at 323). He refused to speak directly about the charges that resulted in him being at Springfield, but did acknowledge that he got “around the wrong crowd.” (Id. at 342). Merriweather asked Williams some personal questions that she did not answer, but he continued the conversation by changing the topic to the Kansas City Chiefs football team’s then-undefeated season. (Id. at 324, 326). Williams found Merriweather to be high-functioning,31 31 Williams indicated in her testimony that she meant that Merriweather was “high functioning” in his 52 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 53 of 124 well-spoken, and unremarkable in hygiene or speech. (Id. at 320, 361). Williams did not notice any of the disorganized speech that Dr. Pietz reported. (Id. at 329). 4. Shelby County Jail Correctional Officers 136. Shelby County Sheriff's Department corrections officers Ronald Higgins and Joseph Szafranski testified about their impressions of Merriweather in the county jail. (Doc. 551, Second Comp. Hrg. Vol. II at 367). Officer Higgins observed Merriweather for two days every other week. (Id. at 368). Higgins occasionally spoke with Merriweather about sports, noticing nothing unusual about Merriweather’s speech, affect, or eating patterns. (Id. at 371, 373). Higgins testified that Merriweather showers when scheduled and his hygiene at the jail is unremarkable. (Id. at 374). Overall, Merriweather seems to be an average, albeit introverted, inmate for Officer Higgins. (Id.). 137. The impressions that Corrections Officer Joseph Szafranski had of Merriweather mirrored those of Higgins. (Id. at 383). Szafranski observed that Merriweather’s cell was typical of inmate’s cells. Merriweather appeared clean over the seven months that Szafranski observed him at the jail. (Id. at 387-88). Generally, Szafranski testified, Merriweather spends his day in his bunk with his head covered. (Id. at 384). Szafranski said that he has never cited Merriweather for a disciplinary infraction, has seen Merriweather get a commissary order only once, and rarely sees him interacting with other inmates. Szafranski testified that Merriweather “has never personally engaged me in conversation and I have never seen him really engage anyone else.” (Id. at 392). In two years, Szafranski testified, he has observed “maybe two” out of 400 prisoners as reserved as Merriweather. (Id. at 391-92). Overall, both officers noted that Merriweather was generally interactions compared with other inmates and was not referring to I.Q. (Doc. 549, Second Comp. Hrg. Vol. I at 363-64). 53 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 54 of 124 reserved and compliant. (Id. at 374-75, 392, 395, 89-90). Neither detected any issue with Merriweather’s hygiene or the state of his cell. (Id. at 368-69). 5. Dr. Mark Cunningham 138. Dr. Mark Cunningham is a clinical and forensic psychologist in private practice and an independent research scientist. He is licensed to practice in twenty-two states, including Alabama. (Doc. 551, Second Comp. Hrg. Vol. II at 456). At the request of the Defense, Dr. Cunningham interviewed Merriweather for approximately ten hours on October 8, 2013, and on February 15, 2014. (Id. at 463). Dr. Cunningham diagnosed Merriweather with schizophrenia. (Id. at 474). He based this diagnosis on his evaluation of Merriweather, his review of court and institutional records, and interviews with a number of Merriweather’s family and friends.32 (Id. at 462-64). Dr. Cunningham noted that Merriweather’s reported symptoms began at the expected age of onset for schizophrenia: his late teens and early twenties. (Id. at 490). Dr. Cunningham found that Merriweather met four of the DSM-5’s five criteria for determining schizophrenia: delusions; hallucinations; disorganized speech (such as neologisms or invented words that Merriweather used); and negative symptoms (such as diminished emotional expression or avolition).33 (Id. at 483). Dr. Cunningham found less evidence of the fifth criteria of grossly disorganized or catatonic behavior and found that the evidence did not support it. (Id. at 484). 32 Dr. Cunningham conducted in-person interviews with family friends Charles and Chin Geter and Merriweather’s sister Kim Patton as well as telephone interviews with family friends Martha Green and Chun Ok Jones, his father William Merriweather, Sr., former girlfriend Melanie Jackson, and Dr. Robert Hunter, a physician who had treated Merriweather at the Shelby County jail in 2009. 33 To make a diagnostic finding of schizophrenia, an evaluator must find at least two or more of these criteria and that condition must be present for a significant time during a one-month period. (DSM-5 at 99 (Schizophrenia, Diagnostic Criteria . 54 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 55 of 124 (a) Delusions 139. Dr. Cunningham acknowledged that because there have been no recent reports of actual delusions from Merriweather during the years he has been at Butner, Springfield, or the Shelby County Jail, that “makes it a little bit more difficult to diagnose a schizophrenic disorder than if he was displaying as if he was reacting to internal stimuli expressing or openly expressing delusional beliefs.” (Doc. 552, Second Comp. Hrg. Vol. III at 667). Therefore, Dr. Cunningham primarily relied on descriptions of Merriweather’s preoffense behavior from family and friends, such as the following: reports that Merriweather told them that he had a chip implanted in him; that he could see and hear demons in people; that he could hear others’ thoughts; and that he believed that his preschool-age nephews were plotting against him. (Doc. 551, Second Comp. Hrg. Vol. II at 490-94; Def. Ex. 190). The fact that Merriweather reported experiencing some of these delusions during a five-to-six month period of alleged abstinence from drugs led Dr. Cunningham to conclude these symptoms were not drug induced. (Id. 496-97). Dr. Cunningham found that the evidence of negative symptoms and documentation of delusions and hallucinations at FMC Butner further supported his findings that Merriweather’s reported delusions were a product of mental illness rather than the effects of drug use. (Id. at 497). (b) Disorganized Speech 140. Dr. Cunningham found that Merriweather displayed disorganized speech, a proxy for disorganized thought, “characterized by things such as speaking tangentially where you move from topic to topic or circumstantially where you are not directly speaking on point to or addressing the issue before you.” (Doc. 551, Second Comp. Hrg. Vol. II at 475, 483). Dr. Cunningham also cited Merriweather’s use of neologisms, or invented words, that shows the type of disorganized thought consistent with schizophrenia. (Id. at 475). As an example of 55 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 56 of 124 Merriweather using a neologism, Dr. Cunningham related that when he asked Merriweather why he would not tell him his birthdate Merriweather responded, “that would be a depricote.” (Id. at 476). Dr. Cunningham disagreed with Dr. Pietz’s conclusion that neologisms had to occur more frequently to be symptomatic. (Id. at 475). Dr. Cunningham noted that both the Government and Defense’s experts have “observed disorganized, random, tangential, elliptical speech, periods of time in which he was mute, periods of time in which he wouldn't make eye contact.” (Doc. 552, Second Comp. Hrg. Vol. III at 748). Dr. Cunningham, like Drs. Berger, Pietz, and Dudley, found that Merriweather was selectively disorganized in his speech. Dr. Cunningham testified that Merriweather “becomes disorganized in his speech as you delve into issues of case or historical significance. He … is responsive and more organized on simple interactions.” (Doc. 552, Second Comp. Hrg. Vol. III at 662; see also Doc. 551, Second Comp. Hrg. Vol. II at 467-68). Nevertheless, Dr. Cunningham concluded that Merriweather’s overall speech pattern reflected a symptom of schizophrenia that is “exceedingly difficult to malinger on a recurrent and fluid ongoing basis.” (Id. at 477). (c) Negative Symptoms of Schizophrenia 141. Dr. Cunningham noted the following indicators of negative symptoms of schizophrenia in his evaluation of Merriweather: “impoverished speech or affective flattening, social withdrawal, reclusiveness, reduced attention to hygiene, loss of motivation and ambition.” (Doc. 551, Second Comp. Hrg. Vol. II at 483). Dr. Cunningham found that the evidence of Merriweather’s poor hygiene was a highly significant indicator of negative symptoms of schizophrenia. (Doc. 552, Second Comp. Hrg. Vol. III at 662). Dr. Cunningham interpreted Merriweather’s failure to shower for three months at FMC Butner and that nurses’ notes reflected that he showered only once from mid-October 2010 to mid-February 2011 at FMC Butner to be a 56 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 57 of 124 sign of significant social withdrawal. (Doc. 552, Second Comp. Hrg. Vol. III at 663). At FMC Butner, Dr. Cunningham noted that reports showed that Merriweather only went out once for recreation in one 37-week period and left his cell for recreation sixteen times in 450 days. (Doc. 551, Second Comp. Hrg. Vol. II at 505). 142. Dr. Cunningham explained the differences in his conclusions about Merriweather’s hygiene and those of Dr. Berger, who evaluated Merriweather at Butner from December 2009 to until April 2011. (Id. at 527). Dr. Cunningham noted that Dr. Berger reported Merriweather’s personal and cell hygiene as adequate on December 3, 2010, when by Dr. Cunningham’s estimation, Merriweather had gone for seven weeks without going to the facility’s showers. (Id. at 527; GX-26 at 129). Dr. Cunningham again noted that Berger noted during a January 19, 2011 clinical encounter that Merriweather’s hygiene was good, but Dr. Cunningham noted that Merriweather had “now gone three months without a shower at the point that Dr. Burger says his hygiene [was] adequate.” (Id. at 528; GX-26 at 163). Based on Dr. Cunningham’s reading of FMC Butner’s medical reports and the assessments of the nursing staff, Dr. Cunningham concluded that Dr. Berger’s evaluations of Merriweather’s hygiene and psychological status were inaccurate. (Id. at 530). (d) Drug Induced Cause of Symptoms 143. Dr. Cunningham rejected Dr. Pietz’s conclusions that some of Merriweather’s abnormal behavior could be attributed to polysubstance abuse or toxic psychosis. Dr. Cunningham felt that the effects of drug abuse on speech would resolve within a few weeks and be absent after a significant period away from drugs. (Doc. 552, Second Comp. Hrg. Vol. III at 738). 57 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 58 of 124 (e) Malingering 144. Dr. Cunningham ruled out malingering as a diagnosis or a factor in Merriweather’s behavior or presentation. He did not administer a test to Merriweather to measure the presence or absence of malingering. (Doc. 552, Second Comp. Hrg. Vol. III at 747). However, Dr. Cunningham noted that there was no evidence of malingering on the Test of Memory Malingering or on the Structured Interview of Reported Symptoms that Dr. Pietz administered in 2007. (Doc. 551, Second Comp. Hrg. Vol. II at 577; Doc. 552, Second Comp. Hrg. Vol. III at 677, 688). Dr. Cunningham also observed that Merriweather consistently denied hallucinations or delusions during mental health evaluations. (Doc. 552, Second Comp. Hrg. Vol. III at 677). Merriweather’s denials of symptomatic behavior in mental health evaluations made an impact on Dr. Cunningham’s assessment of malingering. Dr. Cunningham testified that Merriweather is “effectively negating [his] defense” which is “profoundly self-defeating” behavior. (Id. at 606). 145. Dr. Cunningham emphasized that if Merriweather is malingering negative symptoms of schizophrenia, he is doing so in “an extremely atypical way.” (Doc. 552, Second Comp. Hrg. Vol. III at 677). People who are malingering, Dr. Cunningham testified, exaggerate positive symptoms of mental illness far more than Merriweather – to the extent that if an evaluator does not ask about the delusional thought, the subject will call attention to his or her bizarre behavior. (Id. at 467; 515). Dr. Cunningham found that Merriweather, in contrast, did not report delusions at any of the institutions where he was housed after the offense. Dr. Cunningham also found Merriweather’s presentation at FMC Butner or FMC Springfield contrary to the expected conduct of someone faking a mental disease: the nurses’ notes contained references to hallucinations or disorganized speech instead of Merriweather presenting them in front of the doctors; in Merriweather, negative rather than positive symptoms of schizophrenia predominate; 58 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 59 of 124 and Merriweather’s behavior has a “high response cost”: meaning that most rational people would find his behaviors of social isolation, not eating or bathing, and low activity “to be unbearable.” (Doc. 551, Second Comp. Hrg. Vol. II at 510). 146. Dr. Cunningham testified that a lack of any identifiable gain to Merriweather’s conduct also convinced him that Merriweather was not faking mental disease. Dr. Cunningham saw no secondary gain to Merriweather’s withholding information about preoffense, non-criminal conduct, particularly in light of the inconsistency of Merriweather’s refusals to talk about his background. As noted above, Dr. Cunningham similarly rejected conclusions that the occasional nature of Merriweather’s disorganized speech showed malingering. (Doc. 551, Second Comp. Hrg. Vol. II at 477). Dr. Cunningham feels that disorganized speech is “a symptom of schizophrenia that is exceedingly difficult to malinger on a recurrent and fluid ongoing basis” because a certain level of cognition in a normally functioning brain “is inescapable.” (Doc. 551, Second Comp. Hrg. Vol. II at 477). 147. While Dr. Cunningham did not believe that Merriweather was feigning symptoms such as disorganized speech or bathing, he [Cunningham] did acknowledge that Merriweather chooses to withhold information from evaluators. Merriweather is an unreliable witness on his own history, Dr. Cunningham noted, and it is difficult to extract reliable historical information from Merriweather such as his birthdate, the legal charges against him, or other background information. Nevertheless, Dr. Cunningham believes that Merriweather knows what he is charged with and that Merriweather is acting volitionally when refusing to discuss the offense. (Doc. 551, Second Comp. Hrg. Vol. II at 519). Dr. Cunningham theorized that when Merriweather is questioned about his past -- when he had a job, recreations, family, and emotional health -- his realization of the contrast between that and his current life of relative reclusion and isolation is too 59 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 60 of 124 much of an emotional load for him to bear. Dr. Cunningham analogized Merriweather’s failing coping capabilities to monitoring a patient with heart disease on a treadmill – a heart patient may seem fine initially, but as the treadmill’s ramp is elevated, the patient begins to show more subjective symptoms. (Doc. 551, Second Comp. Hrg. Vol. II at 469). Psychological issues operate the same way, Dr. Cunningham explained, in terms of the demands put on the system, and he observed that Merriweather deteriorates under stress. (Id. at 585-87). 148. Dr. Cunningham was asked why his opinion differed so significantly from Drs. Berger and Pietz who saw Merriweather over far longer periods, whose evaluations were supported by the observations of institutional and medical staff, and who saw Merriweather in a living environment where it may be assumed an evaluator can gain a comprehensive understanding of a subject’s daily life and mental health. The Government’s experts, he noted, did not have access to all of the documentary, institutional, and historical data that he had over different periods of Merriweather’s life and incarceration. (Doc. 551, Second Comp. Hrg. Vol. II at 502). 149. Dr. Cunningham thus disagreed with Dr. Pietz’s finding that Merriweather was malingering symptoms of mental illness. To explain their differing opinions, Dr. Cunningham noted that Dr. Pietz’s previous diagnosis at FMC Springfield (attributing Merriweather’s symptoms to drug induced psychosis) may have had a “subconscious” biasing effect on Dr. Berger’s findings that Merriweather was competent. (Doc. 552, Second Comp. Hrg. Vol. III at 668-69). Dr. Cunningham also noted that putting aside Merriweather’s reported drug use, Dr. Berger did not have the third-party data that he [Dr. Cunningham] had and was not able to go through notes as he did. (Id. at 679). Dr. Cunningham also surmised that Defendant’s affect can be interpreted as stubbornness, which may “end[] up tainting the evaluation as well because there is 60 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 61 of 124 this sense of frustration” with Merriweather. (Id. at 672). Dr. Cunningham found that Merriweather’s behavior was more indicative of schizophrenia. (f) Ability to Assist Counsel 150. Dr. Cunningham concluded that Merriweather’s schizophrenia compromises his ability to assist presently counsel with his defense. Merriweather, with treatment in Dr. Cunningham’s opinion, can be restored to competency. Dr. Cunningham discounted Merriweather’s memory as having no substantial effect on the defendant’s ability to presently assist counsel. (Id. at 637). 6. Dr. Alex Stalcup 151. Alex Stalcup, M.D., was called by the Defense. (Doc. 552, Second Comp. Hrg. Vol. III at 695). Dr. Stalcup is board certified in pediatrics, focusing on pulmonary and critical care medicine. However, since 1995, Dr. Stalcup has been the medical director of the New Leaf Treatment Center in Lafayette, California that specializes in alcohol and drug abuse. He evaluated Merriweather as a specialist in addiction medicine. (Id. at 695-96, 698, 776). 152. Dr. Stalcup diagnosed Merriweather with paranoid schizophrenia, stating that Merriweather was a “low to mid-level functioning paranoid schizophrenic” and was “floridly psychotic.” (Doc. 552, Second Comp. Hrg. Vol. III at 754, 841). Dr. Stalcup accompanied Merriweather’s counsel to interview Merriweather in March 2014, but concluded after an hour and a half encounter that Merriweather seemed to “just too disorganized [and] too psychotic to comply” with his attorneys’ request to cooperate with the evaluation. (Doc. 552, Second Comp. Hrg. Vol. III at 711). As with other evaluators who tried to interview him, Merriweather evaded Dr. Stalcup’s questions by changing the subject, or he “babbled,” “said nonsensical things, [like] 61 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 62 of 124 describ[ing] the sky or food,” or simply refused to discuss certain topics such as drug use. (Id. at 713). Dr. Stalcup observed that Merriweather seemed frightened and at one point tried to leave the interview room. (Id. at 712). While Merriweather responded to a few questions about his drug use, Dr. Stalcup felt that he could not give credence to them because Defendant “couldn’t maintain linear thought long enough to be able to finish his answer.” (Id. at 713). 153. Dr. Stalcup rejected Dr. Pietz’s findings that Merriweather was malingering signs of mental illness. Dr. Stalcup stated that he “could not imagine” Merriweather being able to malinger negative symptoms of schizophrenia such as “random, tangential, elliptical speech, periods of time in which he was mute, [and] periods of time in which he wouldn't make eye contact.” (Id. at 747-78). Dr. Stalcup noted that it is “much easier to fake positive symptoms” because schizophrenic patients have no idea what negative symptoms are or that they are doing them. (Id. at 748). Moreover, Dr. Stalcup pointed out that recently Merriweather has denied having hallucinations and delusions. (Id.). When asked why the institutional doctors saw no evidence of Merriweather’s mental state deteriorating as may be expected with a person with schizophrenia, Dr. Stalcup suggested that clinicians in institutional settings, such as FMC Butner and FMC Springfield, would not interpret Merriweather’s behaviors as symptomatic of mental illness because Merriweather was not causing any problems. (Id. at 750). When a prisoner causes no problems, Dr. Stalcup suggested, institutional staff may not notice unusual behaviors. (Id.). 154. Dr. Stalcup further ruled out “with a reasonable degree of medical certainty that [Merriweather] suffered from drug-induced psychosis” (id. at 742), contradicting Dr. Pietz’s conclusion attributing the reports of Merriweather’s delusions and hallucinations to toxic psychosis. Dr. Stalcup acknowledged that a person experiencing toxic psychosis will exhibit behaviors that are “very similar to paranoid schizophrenia,” but the persistence of hallucinations or 62 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 63 of 124 delusions after a person stops using drugs indicates mental illness. (Id. at 811, 812). For an individual to experience toxic drug psychosis, a person first has to be addicted to the substance or using hallucinogens, (id. at 721-22), and Dr. Stalcup found “no evidence” that Merriweather was addicted to drugs before the offense. (Id. at 724). Furthermore, Dr. Stalcup said, the drugs that Merriweather reports using -- including marijuana, cocaine, methamphetamine, and opiates -- would not cause him to have toxic psychosis. Dr. Stalcup emphasized that “only stimulants and use of hallucinogens are associated with psychosis. Opiates don't produce psychosis.” (Id. at 728, 734). He testified that even with heroin abuse, “most psychotic symptoms clear with a good sleep.” (Id. at 722). Dr. Stalcup denied that Merriweather’s psychotic symptoms could have resulted from his use of stimulants such as methamphetamine or crack cocaine. Any psychotic symptoms from such stimulants, Dr. Stalcup said, would be of a short duration: from one to six weeks. (Id. at 725). Dr. Stalcup stated that drug withdrawal would not be responsible for Merriweather’s behavior because “opiate use doesn’t produce psychosis,” and “under no circumstances are they delusional or hallucinatory.” (Id. at 733-34). Thus, withdrawal from opiates cannot produce toxic psychosis and were not the cause of Merriweather’s behavior, Dr. Stalcup concluded. (Id.). 7. Dr. Bruce Berger 155. Dr. Bruce Berger testified at the second evidentiary hearing about his evaluation of Merriweather while he was at FMC Butner from 2009-11. (Doc. 553, Second Comp. Hrg. Vol. IV at 949). Dr. Berger was recalled as a witness presumably to address the information in the Butner records belatedly turned over to the Defense. In 2011, Dr. Berger diagnosed Merriweather with unknown substance abuse, currently in remission in a controlled environment. (Id. at 1034). Dr. Berger retired from FMC Butner in 2012. (Id. at 1067). 63 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 64 of 124 156. At Butner, Dr. Berger noted that Merriweather would refuse to eat at times or would refuse the institution’s prepared meals, instead requesting cans of Ensure or a TV dinner. (Id. at 952). Dr. Berger testified that while he did not know why Merriweather would refuse to eat institutional meals, in his opinion the refusals “didn't appear focused on any sort of psychotic or delusional belief that he shared with us, and ultimately to me it appeared to be a way that he could control his environment.” (Id. at 954, 969-70). 157. Dr. Berger also did not believe that Merriweather’s reticence to answer assessment questions at FMC Butner to be symptomatic of psychosis. Instead, Dr. Berger felt that Merriweather’s guardedness could result from being in a new environment. (Id. at 966). Dr. Berger also noted that some of Merriweather’s odder statements made while at FMC Butner were not bizarre in context. (Id. at 970-71). For example, when Merriweather was asked why he refused a dinner tray, Merriweather said that he did not want to have a nervous reaction. When a nurse asked him what he meant by that statement, Merriweather replied that his water pressure in his shower went up, and he would not be able to drink any water. When further asked what he meant, Merriweather laughed and said, “I was just checking on you.” (Id. at 969-70). Dr. Berger did not see that exchange as symptomatic of psychosis. Instead, Dr. Berger saw Merriweather’s response as teasing and noted that water pressure is in fact an issue in the segregation unit where Merriweather was housed. (Id. at 970-71). 158. Dr. Berger also discussed the significance of the ESH/ADs in his patient evaluations. Dr. Berger acknowledged that he did not rely on the ESH/ADs because he was not sure of the accuracy of the entries and because his practice was to speak to the staff directly about their observations of patients. (Id. at 999). Typically, Dr. Berger would arrive to work early, between 6:00 to 6:30, shortly before the change at 7:00 to find out from both the officers and 64 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 65 of 124 nurses what had gone on with the patients. (Id. at 1037). If the staff saw something about the way Merriweather was presenting that bothered them during the shift, the staff would have brought that to Dr. Berger’s attention. (Id. at 1038). If the same information recorded on the ESH/ADs had been in the nurses’ narrative notes, Dr. Berger stated that he might have given it more credence. (Id. at 1055). He testified that a narrative note “would generally have potentially much more accurate information” than an ESH/AD. (Id. at 1068). With the ESH/ADs, Dr. Berger was concerned about the notes’ accuracy and consistency, given that the nurses might have little time to complete them during a shift. (Id. at 1043, 1067). 159. Dr. Berger stated that the ESH/ADs were not clinically relevant for him as they were quickly filled in by the nurses “as one of the least important things the nurses would do.” (Id. at 1003). While the ESH/AD might show patterns of behavior, Dr. Berger remained concerned about the accuracy of those observations. (Id. at 1003). Dr. Berger testified that he “put much greater weight on [a nurse’s verbal report] because that is a hard thing to do in a busy unit and shows that something much more has changed. … most of the clinical people give little credence to [ESH/ADs]. (Id. at 1067). 160. Dr. Berger was also unconvinced that Merriweather’s varying responses to being offered food indicated schizophrenia because of the way that Merriweather refused food – at times teasing or in a manipulative manner. (Id. at 1046). Dr. Berger also noted that prisoners at FMC Butner will sometimes forgo showers and just sponge bathe in the sink. (Id. at 1048). Dr. Berger felt that Merriweather’s reversal from refusing to eat and bathe to deciding to do so when the court issued a force-feeding order was not consistent with delusional thinking. (Id. at 1058-59). 161. Dr. Berger agreed with Dr. Cunningham’s treadmill analogy that if a schizophrenic person is in a structured environment, that helps them organize their thoughts. (Id. at 1058). 65 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 66 of 124 Turning on a video camera can make some people more suspicious or nervous which could create stress. (Id. at 1059). 162. Dr. Berger did not agree with Dr. Cunningham’s assessment of Merriweather’s pattern of disorganized speech patterns being something that only a genius could fake. (Id. at 1060). Dr. Berger believed that “most people could do that, should they want to, for period of times.” (Id. at 1061). Dr. Berger did not see any evidence that Merriweather was malingering mental illness during his evaluation. (Id. at 1028). As Dr. Berger noted, “I don't think it meant a tremendous amount to him to be truthful or forthcoming to people at all times.” (Id. at 1028). Dr. Berger acknowledged that at times Merriweather said things to the nurses that indicated disorganized thinking and distrust of staff and the institution (see id. at 963-95), but Dr. Berger felt that as a whole, Merriweather did not exhibit significant and consistent signs of psychosis. (Id. at 996-97). 8. Dr. Gabriela Ramirez-Leon 163. Dr. Gabriela Ramirez-Leon, a psychologist with the United States Penitentiary, Atlanta, testified about her psychological screening of Merriweather on October 30, 2013. (Doc. 551, Second Comp. Hrg. Vol. II at 435). Dr. Ramirez-Leon oversees psychological screening and mental health for prisoners in transit. (Id.). Dr. Ramirez-Leon conducted a 10-15 minute assessment of Merriweather within twenty-four hours of his arrival at the Atlanta facility because of Merriweather’s Bureau of Prison’s psychological designation. (Id. at 442, 455). She found Merriweather to be appropriately oriented, calm, and normal in his presentation. (Id. at 450). He reported no delusions or hallucinations. (Id. at 455). 66 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 67 of 124 9. Nursing staff (a) Vickey Cross 164. Vickey Cross, a clinical nurse with the Bureau of Prisons for 20 years, testified about Merriweather’s time at MCFP Springfield. (Doc. 551, Second Comp. Hrg. Vol. II at 367). She came into contact with Merriweather in her duties in passing out medications and administering medications. (Doc. 551, Second Comp. Hrg. Vol. II at 406). Cross found Merriweather’s behavior and thought content to be appropriate. (Id. at 414). (b) Robin Peterson 165. Nurse Robin Peterson testified about the ESH/AD reports at FMC Butner, where Peterson has worked for fifteen years. Peterson is the nurse manager for the ambulatory care unit and camp ambulatory care at FMC Butner and has worked in the mental health unit. (Doc. 552, Second Comp. Hrg. Vol. III at 858). She did not work in the area where Merriweather was housed at Butner and has no personal knowledge about him. (Id. at 869). Peterson testified that nurses are instructed to communicate with and observe patients and to fill in information about the patients’ condition on the ESH/AD documents. (Id. at 863). Nurses are to track patients’ hygiene on the ESH/AD, Peterson testified, to control infection, to ensure that patients are kept clean, and to observe whether symptoms of mental illness may be present. (Id. at 864). For mental status observations, nurses speak with the patients to make sure patients are oriented to time, place, name, person and to note on the ESH/ADs any changes in a patient’s mental health that might indicate a problem. (Id. at 865). 166. Peterson stated that, in her opinion, the function of the ESH/AD sheets are to comply with the administrative requirements placed on the institution by the Joint Committee on 67 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 68 of 124 Accreditation. Peterson felt that ESH/ADs serve less of a role in patient care: she has never seen doctors look at them and does not believe that ESH/ADs are valuable in providing care. (Id. at 870-71, 873). Peterson also testified that she knew and worked with Dr. Bruce Berger at FMC Butner. Peterson confirmed that Dr. Berger’s normal practice was to speak with the nurses and correctional staff about the patients at the start of his rounds rather than look at the ESH/ADs. (Id. at 886). (c) Carlene A. Beasley 167. Carlene A. Beasley is a nurse assigned to the mental health unit at FMC Butner. (Doc. 552, Second Comp. Hrg. Vol. III at 887). She has worked at Butner for nineteen years. (Id. at 888). She worked on the unit where Merriweather was housed at Butner and observed him from December 11, 2009 to 2011. Beasley noted that Merriweather had refused meals and had to be encouraged to drink water to water to prevent dehydration. (Id. at 909). She noted that Merriweather would laugh inappropriately at times and would respond to questions or statements that had no relevance to the questions asked. (Id.). He avoided making eye contact with staff and at times requested to have the lights turned off in his cell. (Id.). Merriweather was once offered a cup for water to keep in his cell but declined, stating that he knew he was in a hospital but felt like that “would make him look like too much of a patient.” (Id. at 911). 168. Beasley found Merriweather to have poor hygiene and suspicious moods, reported “paranoid and bizarre” delusions, and noted that he occasionally had disorganized thought. (Id. at 912-13). Merriweather began eating sparingly and would communicate with staff only selectively during the latter part of his stay at FMC Butner, getting down to 126 pounds. (Id. at 913, 947-48). Merriweather would communicate by hand gestures rather than speech, and Beasley noted that, at times, Merriweather refused to communicate. (Id. at 915, 917). 68 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 69 of 124 169. Nurse Beasley explained that ESH/ADs are flow sheets made to document the nurses’ observations of patients’ conditions during each shift in lieu of writing out a longhand note. (Doc. 553, Second Comp. Hrg. Vol. IV at 932). Doctors normally do not use the ESH/ADs because the doctors tend to ask the nursing and correctional staff directly about the patients’ welfare. (Id.). (d) Chidinma Nweke 170. Chidinma Nweke has been a clinical nurse at Butner since 2006, about six and a half years (Doc. 553, Second Comp. Hrg. Vol. IV at 1072). Merriweather was very quiet and other than occasionally saying one word or responding to one question, he did not talk much, Nweke observed. (Id. at 1080). 171. Regarding the ESH/ADs, nurses make notes but not diagnoses because the nurses are not qualified to make diagnoses. Nweke said that she puts down on the ESH/ADs what she sees, “be it a display, be it real. I just put down what I am being shown or what I see.” (Id. at 1084-85). Nweke just writes down what the individual reporting says they are feeling, for example, if a patient says that he is hallucinating, she puts down on the ESH/AD that he is hallucinating. (Id. at 1087). When an inmate shows something significant, nurses will fill out a Butner Electronic Medical Records (“BEMR”) noting what is unusual about the patient’s condition. (Id. at 1086). Nurses are told about ESH/AD forms, instructed to complete them, and what they are used for. (Id. at 1073). The nurses received no special training on completing the sheets (id. at 1085) and do not make determinations or diagnoses. (Id. at 1087-88). (e) Theresa McKinney 172. Theresa McKinney has been a nurse at FMC Butner since 2007. (Doc. 553, Second Comp. Hrg. Vol. IV at 1106). She observed Merriweather while assigned to his unit from 69 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 70 of 124 approximately December 2009 to February 2010. (Id. at 1109-11). She remembered that Merriweather was “a bit reserved” in his demeanor. (Id. at 1113). (f) Janet Oakley 173. Janet Oakley has been a nurse at FMC Butner for 13 years. (Doc. 554, Second Comp. Hrg. Vol. V at 1127). She testified that ESH/ADs are used by the nurses to observe and assess inmates. (Id. at 1130). The observations recorded on the ESH/ADs are generally made during rounds where the unit nurses interact with inmates at the window of the cell door. (Id. at 1131). Oakley testified that ESH/AD sheets are subjective: nurses “just put down on the sheets what [the inmates] tell you.” (Id. at 1132). When nurses want to communicate with a doctor about an inmate’s condition, Oakley said, they write BEMR notes, email the doctors, or communicate with them in person. (Id. at 1133). (g) Justine Nixon 174. Justine Nixon is a Lieutenant Commander with United States Public Health Service and has been a psychiatric nurse for 21 years (Doc. 554, Second Comp. Hrg. Vol. V at 1145-46). She works at FMC Butner. Nixon testified that nurses do not diagnose conditions on ESH/AD sheets. (Id. at 1149). She received no training to learn how to complete ESH/ADs. (Id.). Nixon stated that she is aware of occasions when, because of time or because a nurse temporarily assigned to the unit, a nurse did not personally assess an inmate using the ESH/AD but simply copied down the assessments of the shift before. (Id.). She did not remember Merriweather ever being in distress while he was on the unit at FMC Butner. (Id. at 1153). She also knows Dr. Bruce Berger and explained that his normal practice at FMC Butner was to arrive early and speak to the nurses to discuss what happened during the night shift. (Id. at 1154). 70 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 71 of 124 (h) Angela Richardson 175. Angela Richardson, a nurse at FMC Butner for almost 14 years, discussed the role of ESH/ADs. (Doc. 554, Second Comp. Hrg. Vol. V at 1162). She remembered that Merriweather spoke to Butner staff selectively. (Id. at 1165). Richardson confirmed Justine Nixon’s statement that nurses receive no training on filling out or using ESH/AD forms. (Id. at 1165). To Richardson’s knowledge, no one in the institution uses the forms except to comply with the Joint Committee on Accreditation. (Id. at 1166). Indeed, Nurse Richardson candidly testified that “I don't know anyone who uses them other than attorneys to try to either win their cases, like this case.” (Id. at 1166, 1171). Nurse Richardson acknowledged that what a previous shift nurse writes may have an impact with what a subsequent nurse writes, particularly “if we’re not as familiar with the patient.” (Id. at 1167). (i) Elizabeth Loziuk 176. Elizabeth Loziuk has worked as a nurse at FMC Butner since 2003. She confirmed that she received no formal training in completing the ESH/AD forms. (Id. at 1177). Loziuk said she was unaware of any psychologist or psychiatrist reviewing ESH/ADs at Butner. (Id. at 1179). Instead, when she wishes to communicate with doctors in writing, she sends an email or makes a note in the BEMR system. Her experiences with Dr. Berger is that he would arrive early to speak to the night shift. (Id.). On the ESH/ADs, Loziuk stated that she bases any notations that she makes about hallucinations or delusions, “on what the inmate tells you.” (Id. at 1178). III. Standards and Procedures for Determining Competency to Stand Trial The procedures for determining competency in a federal case are governed by statutory and constitutional requirements. The Fifth Amendment’s Due Process Clause requires that a criminal defendant may not be tried unless he is mentally competent. Pate v. Robinson, 383 U.S. 71 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 72 of 124 375, 385 (1966). See also Godinez v. Moran, , 396 (1993); Drope v. Missouri, , 172-73 (1975); United States v. Rahim, 431 F.3d 753, 759 (11th Cir. 2005) (“The Due Process Clause of the Fifth Amendment prohibits the government from trying a defendant who is incompetent.”); James v. Singletary, 957 F.2d 1562, 1569-70 (11th Cir. 1992). A. Legal Standards to Determine Competency to Stand Trial The Supreme Court set forth the test standard for competency to stand trial in Dusky v. United States, (1960) (per curiam). In Dusky, the Court held that competency is determined by whether the defendant has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and has “a rational as well as factual understanding of the proceedings against him.” Id. at 402. The Court further elaborated on the Dusky standard in Drope v. Missouri, (1975), in which the Court stated that it “has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Id. at 171; see Indiana v. Edwards, 554 U.S. 164, 169-70 (2008) (“The two cases that set forth the Constitution’s ‘mental competence’ standard, Dusky v. United States and Drope v. Missouri, specify that the Constitution does not permit trial of an individual who lacks ‘mental competency;’” “Drope repeats [the Dusky] standard” “that focuses directly upon a defendant's “present ability to consult with his lawyer,” a “capacity ... to consult with counsel,” and an ability “to assist [counsel] in preparing his defense”) (internal citations omitted). See also Godinez v. Moran, , 396 (1993) (in defining the competency standard, quoting Drope’s language prohibiting a criminal defendant from being tried if he “lacks the capacity to understand the nature and object 72 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 73 of 124 of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial”); Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1256 (11th Cir. 2002) (in order to be considered competent for trial, a defendant must have “‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,’” and he must have a “‘rational and factual understanding of the proceedings against him.’”); Watts v. Singletary, 87 F.3d 1282, 1286 (11th Cir. 1996) (competence to assist counsel at trial “is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right of effective assistance of counsel.”); United States v. Saingerard, 621 F.3d 1341, 1342 (11th Cir. 2010) (noting the continuing viability of Dusky). The federal competency statute codified the Dusky standard for determination of mental competency to stand trial. 18 U.S.C. § 4241(a). See Insanity Defense Reform Act of 1984, Sen. R. No. 98-225, at 236 (1983), reprinted in 1984 U.S.C.C.A.N. (98 Stat.) 3182, 3418 (“This test of competency, in essence, adopts the standards set forth by the Supreme Court in Dusky v. United States.”); United States v. Cornejo-Sandoval, 564 F.3d 1225, 1233 (10th Cir. 2009) (describing Senate Judiciary Report on 18 U.S.C. § 4241(a) that federal competency statute was based on Pate’s procedural protections); United States v. Wiggin, 429 F.3d 31, 37 n. 8 (1st Cir. 2005). Section 4241(d) outlines a two-prong legal standard for determination of a defendant’s mental competency to stand trial: If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable [1] to understand the nature and consequences of the proceedings against him or 73 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 74 of 124 [2] to assist properly in his defense the court shall commit the defendant to the custody of the Attorney General [for hospitalization].... Determination of Mental Competency to Stand Trial, 18 U.S.C. § 4241(d) (2006) (emphasis added and spacing modified). B. Procedural Requirements to Determine Competency When a criminal defendant’s competency is called in question, 18 U.S.C. § 4241(d) requires the court undertake certain proceedings to make a preliminary finding as to whether a preponderance of the evidence shows that the defendant is, in fact, incompetent – i.e., whether a “mental disease or defect” renders him “unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” The court must conduct a hearing at which the defendant, represented by counsel, is afforded an opportunity to testify and to call and confront witnesses. See 18 U.S.C. §§ 4241(a), (c) and 4247(d). The district court “may order” a psychiatric or psychological examination of the defendant before the competency hearing. Id. § 4241(b). Under § 4247(b), the court may also order the defendant committed “for placement in a suitable facility” for a “reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future [the defendant] will attain the capacity to permit the trial to proceed.” 18 U.S.C. § 4241(d)(1). These procedures were followed in this case. C. Burden of Proof As indicated in the court’s initial competency order, there is some question about where the burden of proving competency to stand trial lies in federal criminal trials. (Doc. 160 at 19, n.14). In passing Section 4241, Congress was silent on whether the burden of proof for proving competency lies with the Defendant or the Government. See 18 U.S.C. §§ 4241, 4247 (requiring 74 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 75 of 124 that the court must find by a preponderance of the evidence that a defendant is incompetent to stand trial). See United States v. Richardson, 3:08-cr-302-J032TEM, 2009 WL 1490552, at *3 (M.D. Fla. May 27, 2009) (observing that “[w]hich party has the burden of proof concerning competency is not fully decided”); United States v. Gigante, 996 F. Supp. 194, 199 (E.D.N.Y. 1998) (“Legislative history [on § 4241] does little to provide additional guidance.”). In Cooper v. Oklahoma, (1996), the Supreme Court briefly addressed this issue, but did so in dictum while referring to the various burdens of proof required among the states. 34 See generally, United States v. Patel, 524 F. Supp. 2d 107, 112 (D. Mass. 2007) (finding that statement in Cooper assigning burden of proof was not binding as the Court has not referred to it again). The Eleventh Circuit has interpreted Cooper to place the burden for proving competency on the moving party, which the Defense argues is the Government. (Doc. 556, Def.’s Competency Brf. at 1). See, e.g., United States v. Izquierdo, 448 F.3d 1269, 1277 (11th Cir. 2006) (“… the Supreme Court has stated, albeit in dicta, that the burden of establishing incompetence rests with the defendant”… “the relevant competency statute [18 U.S.C. § 4241] arguably contemplates that the burden will lie with the party making a motion to determine competency.”); United States v. Bradley, 644 F.3d 1213, 1268 (11th Cir. 2011) (placing the burden of proving incompetence on the defendant does not violate due process); United States v. Rothman, No. 08-20895-CR, 2010 WL 3259927, at *6, n. 4 (S.D. Fla. Aug. 18, 2010) (finding 34 The Court stated in Cooper that “a number of States place no burden on the defendant at all, but rather require the prosecutor to prove the defendant’s competence to stand trial once a question about competency has been credibly raised. The situation is no different in federal court. Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence.” 517 U.S. at 361-62. 75 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 76 of 124 that § 4241 “does not speak in terms of whether the government or defendant has the burden of proof; it only mandates that whoever is seeking to prove incompetence has the burden”). In this case, the Government has expressly offered to assume the burden of proof. (Doc. 133). Finding neither a statutory bar to the Government’s offer, nor any disadvantage to the Defendant in assigning the burden to the Government, the court granted the Government’s request. The court finds support in the decision of United States v. Talley, in which the court noted that if placing the burden of proof on a defendant does not violate due process under Eleventh Circuit precedent, then surely placing the burden of proof on the Government offends no constitutional rights of the accused. No. 10-MJ-2835-AMS, 2010 WL 4791821, at *10 (S.D. Fla. Nov. 18, 2010). Furthermore, because the court finds that the evidence of competency is not in equipoise, allocating the burden of proof to the Government has not altered the outcome of the competency determination. See Medina v. California, 505 U.S. 437, 441 (1992). IV. Summary of Credibility Findings In this second competency hearing, the court is again confronted with competing (and irreconcilable) opinions by two groups of trained and competent expert witnesses. As the Supreme Court has stated, “[p]sychiatry is not … an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, [and] on cure and treatment….” Ake v. Oklahoma, 470 U.S. 68, 81 (1985). However, a medical opinion of experts about a defendant’s competency to stand trial “is not binding on the court, since the law imposes the duty and responsibility for making the ultimate decision of such a legal question on the court and not upon medical experts.” United States v. Abernathy, No. 08-20103, 2009 WL 982794 (E.D. Mich. Apr. 13, 2009), quoting FED. PROC. § 22:549 (Hearing and Determination as to Competency). 76 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 77 of 124 To weigh the expert opinions, the court considered the familiarity and exposure each expert witness had with (and to) Merriweather, the thoroughness of the evaluation performed, and the care with which the respective experts reached their conclusions. Because of the particular set of facts in this case, one measurement effectively encapsulates all of these criteria: the duration of continuous interaction between the expert and Merriweather.35 The importance of the time spent with Merriweather in evaluating an expert witness’ credibility is undisputed between the parties.36 To be clear, the court does not mean that a mathematical tally of the number of hours each expert spent with Merriweather is determinative. Simply comparing hours could work to the Defense’s disadvantage, as the Defense would likely never have the same access to a prisoner that institutional mental health experts would have. Nevertheless, the amount of time that an evaluator had to observe Merriweather is of great importance because the evidence of incompetency centers largely on negative symptoms of schizophrenia: selective mutism, neglect of hygiene and nutritional intake, and diminished interest in social interaction. Much of the relevant evidence presented at the hearings focused on what Merriweather has not done or does not do – and to establish that Merriweather’s lack of activity is symptomatic of mental illness, the opportunity to observe and monitor his behavior patterns is critical. Given this focus on negative symptoms, Drs. Berger and Pietz had the greatest ability to observe and monitor such manifestations of schizophrenia in Merriweather’s 35 Namely, the court notes the great disparity between the amount of time Drs. Pietz and Berger invested in evaluating Merriweather, and the time spent by all other expert examiners. 36 For example, in its brief after the first competency hearing, the Defense suggested that the court should completely discredit the evaluations conducted by Dr. Gualtieri because “[h]is exposure to Merriweather was limited.” (Doc. 156 at 42). However, again, what is sauce for the goose is sauce for the gander; if the court were to discredit every expert witness who had limited exposure to Merriweather, it would have to discredit several of the Defense’s expert witnesses. The court declines to go so far. 77 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 78 of 124 daily life, collectively observing Merriweather over one and a half years at their institutions. Moreover, Dr. Berger and Pietz’s observations and evaluations are supported by the continuous observation of Merriweather by other medical and correctional staff at their respective institutions. In contrast, the Defense’s expert witnesses cumulatively spent less than 48 hours with Merriweather.37 Thus, although it is not a controlling factor, the court notes that Drs. Pietz and Berger separately spent more time evaluating and observing Merriweather’s symptoms than all the other medical experts combined. See, e.g., United States v. Hoyt, 200 F. Supp. 2d 790, 794 (N.D. Ohio 2002) (crediting expert in competency proceeding who “was able to observe and treat Defendant … for a significantly longer period of time than that which [the Defense expert] treated Defendant” … who could “supplement his own observations with those of other members of the nursing and correctional staff”). To be clear, the amount of time spent with Merriweather is not the only factor that the court has considered in crediting the testimony of Drs. Pietz and Berger. Indeed, the court was impressed with the testimony of both Drs. Pietz and Berger. During the initial competency hearing, Dr. Berger appeared to be the most balanced and careful and did not appear to be an “advocate” for either side. Leading up to the second competency hearing, Dr. Pietz was methodical in noting changes in Merriweather’s presentation. In fact, her initial concerns about Merriweather’s presentation immediately after his arrival at FMC Springfield in late 2013, in part, prompted the second competency hearing. Dr. Pietz’s actions evidence her efforts to be 37 The sum total of the time spent by Drs. Merikangas (1.5 hours), Dudley (16 hours), Mirsky (4.5 hours), Cunningham (10 hours), (see Doc. 551, Second Comp. Hrg. Vol. III at 463), and Stalcup (1.5 hours), (see Doc. 552, Second Comp. Hrg. Vol. III at 220) was about 33.5 hours. Given Merriweather’s resistance to answering Dr. Stalcup’s questions, the court understands why Dr. Stalcup’s evaluation was short (See Doc. 552, Second Comp. Hrg. Vol. III at 771). 78 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 79 of 124 professionally balanced, and also demonstrate her efforts to ensure that Merriweather received a thorough diagnosis. The Government attempts to show that, although Merriweather may have experienced drug-related psychotic symptoms in the past, he is not presently suffering from a mental disease or defect. (Doc. 152 at 10; Doc. 565 at 29 (sealed . Rather, the Government insists that Merriweather’s current symptoms are feigned and his apparent inability to communicate with Defense counsel is deliberate. The Defense presented evidence at both competency hearings that Merriweather is afflicted with schizophrenia as evidenced by his alleged history of hallucinations, odd behavior, and his lack of engagement with counsel. After the first competency hearing, considering the reports and records submitted by the parties, video recordings of Merriweather’s interviews at FMC Butner, the testimony delivered at the hearing, and applying the governing legal standards, the court concluded that the Government carried its burden of proving by a preponderance of the evidence that Merriweather was not currently suffering from any mental disease or defect, including schizophrenia. At the second competency proceeding, Defense counsel relies on three main points to support their argument that Merriweather is incompetent: 1) the notations contained in FMC Butner’s nursing notes (the ESH/ADs); 2) the opinions offered by expert witnesses Dr. Mark Cunningham, Ph.D., and Dr. Alex Stalcup, M.D.; and 3) attacks on the credibility of the Government’s experts. The court addresses each in turn below. A. FMC Butner Nursing Notes In the second competency hearing, the Defense introduced nurses’ notes from FMC Butner ESH/ADs that are flowsheets with single letter notations for different conditions such as (e.g., “P” (for poor hygiene) or “F” (for flat affect . The Defense emphasizes the number of 79 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 80 of 124 nurse observations of Merriweather that indicated conditions consistent with negative symptoms of schizophrenia. (See Doc. 556, Def.’s Brf. at 28-29 (“In reviewing the ESH/ADs created while Mr. Merriweather was housed at FMC Butner, Dr. Cunningham observed a number of symptoms of psychosis displayed by William including 519 observations of flat or inappropriate affect, 707 observations of poor insight and judgment, 74 observations of hallucinations, 419 observations of delusions, and 572 observations of suspicious mood.” . The volume of these observations, however, does not paint the full picture about their context or meaning. As noted above, the nurses testified uniformly that the ESH/ADs chart notations reflect subjective, cursory observations that are not used by the institution for any diagnostic or medical purpose other than to comply with requirements imposed by the Joint Committee on Accreditation. (See, e.g., Doc. 552, Second Comp. Hrg. Vol. III at 870-71, 873 (testimony of Robin Peterson that the function of the ESH/AD sheets are to comply with the administrative requirements placed on the institution by the Joint Committee on Accreditation ; Doc. 554, Second Comp. Hrg. Vol. V at 1166 (testimony of Angela Richardson . The nurses also uniformly testified that the ESH/ADs had little significance or role in patient care. Nurse Robin Peterson testified that she never saw doctors look at them and did not believe that ESH/ADs were valuable in providing care. (Doc. 552, Second Comp. Hrg. Vol. III at 870-71, 873); see also id. at 932 (testimony of Carlene Beasley that doctors normally do not use ESH/ADs, tending instead to ask nursing and correctional staff directly about the patients’ welfare); Doc. 552, Second Comp. Hrg. Vol. V at 1132 (testimony of Janet Oakley stating her opinion that the ESH/AD sheets are subjective and nurses “just put down on the sheets what they [the inmates] tell you”); id. at 1166 (testimony of Angela Richardson, stating that the institutional staff do not 80 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 81 of 124 use the ESH/ADs for medical purposes; the sheets are used to comply with accreditation requirements . The Defense relies heavily on the nurses’ notations on the ESH/ADs to refute Dr. Pietz and Dr. Berger’s conclusions that Merriweather is not schizophrenic; however, no one at those institutions credits ESH/ADs as a diagnostic tool or even a reliable indicator of a patient’s condition, even the nurses who actually make the notations. The nurses testified that they receive no formal training on documenting hallucinations, delusions, hygiene, affect, or patients’ presentations on the ESH/ADs. (See Doc. 553, Second Comp. Hrg. Vol. IV at 1085 (testimony of Chidinma Nweke); Doc. 554, Second Comp. Hrg. Vol. V at 1166 (testimony of Angela Richardson); Doc. 554, Second Comp. Hrg. Vol. V at 1177 (testimony of Elizabeth Loziuk . Nurse Angela Richardson testified that the only people that use ESH/ADs were “attorneys [who] look at to see if they can use any information to win their cases or defend their clients.” (Doc. 554, Second Comp. Hrg. Vol. V at 1171). The nurses testified that ESH/ADs have little medical significance for several reasons. First, Butner’s doctors tend to read narrative notes or ask the staff about patients’ conditions rather than try to interpret symbols marked on the ESH/ADs. (See Doc. 553, Second Comp. Hrg. Vol. IV at 1037-38 (testimony of Dr. Berger); Doc. 552, Second Comp. Hrg. Vol. III at 932 (testimony of Carlene Beasley . Second, the notations are entirely subjective – some nurses put down what they observe; others reportedly simply note what inmates self-report about their mental states or moods; still others may be influenced by the previous nurse’s notations. Third, the nurses understand that the ESH/ADs are a documentation requirement, not a diagnostic tool, so when nurses need to communicate medical information, it is typically done in an email or narrative note (such as BEMR). (See Doc. 552, Second Comp. Hrg. Vol. III at 886 (testimony of 81 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 82 of 124 Robin Peterson that Dr. Berger’s normal practice was to speak with the nurses and correctional staff about the patients at the start of his rounds rather than look at the ESH/ADs); Doc. 553, Second Comp. Hrg. Vol. IV at 1054 (testimony of Dr. Berger that he gives narrative notes more credence than ESH/ADs . Based on the court’s review of these forms and the unanimity of opinion among FMC Butner’s medical staff that the ESH/ADs do not have substantial medical value, and particularly because Dr. Berger explained why he did not factor those into his analysis -- but instead talked directly to the nursing staff, correctional staff and his colleagues, reviewed narrative reports, and personally observed Merriweather -- the court does not give the records substantial weight in determining Merriweather’s competency.38 B. Evaluations of Dr. Cunningham and Dr. Stalcup Drs. Cunningham and Stalcup were the two new Defense expert witnesses at the second competency hearing. The court discusses their evaluations below. 1. Dr. Cunningham’s Evaluation On balance, the court found Dr. Cunningham to be a direct, cogent, and impressive witness. However, Dr. Cunningham’s evaluation, as he acknowledged during his testimony, is necessarily hampered by Merriweather’s lack of cooperation and the fact that there have been no verified positive symptoms of schizophrenia since Merriweather was first sent for a mental health evaluation in 2009. Moreover, while Merriweather has not been prescribed psychiatric drugs since his arrest, he has not deteriorated as might be expected if he was in an active or acute 38 Dr. Cunningham, a Defense expert, similarly acknowledged the debatable value of relying on nurses’ observations of Merriweather’s hygiene recorded with only a letter notation without any detail to explain what the reporting nurses meant by their designations. (Doc. 552, Second Comp. Hrg. Vol. III at 670). 82 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 83 of 124 phase of schizophrenia. 39 Dr. Cunningham has based his conclusion that Merriweather is incompetent to stand trial largely on preoffense conduct and on the negative symptoms of schizophrenia that Merriweather purportedly displayed since his arrest. (Doc. 552, Second Comp. Hrg. Vol. III at 667 (Dr. Cunningham’s testimony that there have been no recent reports of actual delusions from Merriweather during the years he has been at Butner, Springfield, or the Shelby County Jail, which “makes it a little bit more difficult to diagnose a schizophrenic disorder than if he was displaying as if he was reacting to internal stimuli expressing or openly expressing delusional beliefs.” . Both of the foundations of this preoffense behavior and social withdrawal are complicated, however, by other equally plausible explanations for Merriweather’s conduct. Dr. Cunningham recognized this point himself when he testified that the experts who have evaluated Merriweather have “all described a similar pattern of [] avolitional speech, isolation, poor hygiene, poor diet, long period of times where he just stared in the window or stared out the window or laid on his cot with a blanket over his head.” (Doc. 552, Second Comp. Hrg. Vol. III at 731). It is what the various experts made of this behavior that separates the evaluators’ conclusions in Dr. Cunningham’s opinion. (Id. at 731). Merriweather’s reported hallucinations, delusions, and bizarre speech before the offense could be attributed to his drug use or to co-morbidity of substance abuse and mental illness. Dr. Cunningham found that these symptoms were not drug induced because Merriweather reported experiencing some delusions during a five-to-six month period of alleged abstinence from drugs. (Id. 496-97). However, the court does not find this point compelling as it rests on several 39 See, e.g., United States v. Battle, 264 F. Supp. 2d 1088, 1114 (N.D. Ga. 2003) (expert’s testimony that with schizophrenia “the general course is one of deterioration, especially without treatment, and Defendant has not had any treatment for a psychotic disorder over the last nine years”), aff’d, 03-14908, 2005 WL 1561799 (11th Cir. July 6, 2005) opinion withdrawn and superseded, 419 F.3d 1292 (11th Cir. 2005). 83 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 84 of 124 assumptions: Merriweather’s and the witnesses’ reports about the periods of substance abuse abstinence are accurate; the reports of the times that Merriweather was symptom-free are also accurate; and Merriweather had no residual reaction to drugs that manifested after he stopped taking them. Of course, even if Merriweather were found to have a mental illness, that would not be determinative of competency. As one district court has noted, “[m]ental illness does not necessarily equate to incompetence.” Grant v. Brown, 312 F. App’x 71, 73 (9th Cir. 2009). The issue is whether Merriweather has an inability to assist counsel or understand the charges against him. Dr. Cunningham believes that Merriweather knows what he is charged with and that he is acting volitionally when refusing to discuss the offense or communicate with his lawyers. (Doc. 551, Second Comp. Hrg. Vol. II at 519). Dr. Cunningham simply concludes that Merriweather’s unwillingness to cooperate shows irrationality. (Id. at 520). Merriweather’s behavior is irrational, Dr. Cunningham testified, because Merriweather is “effectively negating [his] defense” which is the kind of “profoundly self-defeating” course that no rational person would take. (Id. at 606). The court does not disagree that Merriweather’s behavior may be viewed as self-defeating, but some of his behaviors that are consistent with negative symptoms of schizophrenia are also goal-directed and not necessarily driven by schizophrenia. For example, Merriweather has at times refused to eat or been selective about what he eats. This is consistent with negative symptoms of schizophrenia, but limiting his caloric intake also allowed Merriweather to force the facility to house him in a better cell (Doc. 146, Comp. Hrg. Vol. V at 761); to dictate what kind of meals he received (Doc. 146, Comp. Hrg. Vol. IV at 938, 950 (testimony that Merriweather refused food trays but requested Ensure and TV dinner sealed trays ; and even to designate from whom he would accept meals (Doc. 553, Second Comp. Hrg. Vol. IV at 1019 84 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 85 of 124 (Defense counsel stating that for about four weeks, the flow sheet indicates that the only person that Merriweather is eating for, with few exceptions, was Nurse Nweke .40 Simply put, mental illness does not end the inquiry into competency. See Walton v. Angelone, 321 F.3d 442, 460 (4th Cir. 2003) (“Not every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges.” (citation and internal quotation marks omitted ; Bassett v. McCarthy, 549 F.2d 616, 619 (9th Cir. 1977) (schizophrenia diagnosis “do[es] not necessarily imply that [petitioner] did not understand the proceeding or could not cooperate with his counsel”); Broaster v. Soto, CV 13-3965-DOC AS, 2014 WL 3672928 (C.D. Cal. July 18, 2014) (finding no bona fide doubt of incompetency where paranoid delusions did not limit the petitioner’s “ability to interact with his counsel, whom he apparently did not fear, nor [did] they indicate that [the inmate] failed to understand the proceedings against him.”), citing Boyde v. Brown, 404 F.3d 1159, 1166 (9th Cir. 2005) (inmate's depression and paranoid delusions did not raise a doubt regarding his competence to stand trial). The court also notes Dr. Cunningham’s disagreement with Dr. Pietz’s finding that Merriweather is malingering mental illness. During the experts’ testimony in the hearing, the court sensed that some of the disagreement about malingering was because the experts were comparing apples to oranges. Dr. Pietz noted specific incidents where she believed that Merriweather was malingering symptoms. The court did not understand Dr. Pietz to be saying that Merriweather was faking all of the behaviors that Dr. Cunningham identified as negative 40 Dr. Berger viewed Merriweather’s mealtime requests as “a way that he could control his environment. As you can imagine, [Merriweather] has very limited choices in what he can do with his body and with himself under current circumstances, and that is one.” (Doc. 553, Second Comp. Hrg. Vol. IV at 954). Dr. Berger stated during the first competency hearing that Merriweather’s behavior could be attention-seeking: “[i]f he went back here with a post-competency hearing or an environment he didn't like and he wanted to get attention, hygiene is a way to get attention just like significant weight loss.” (Id. at 963). 85 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 86 of 124 symptoms of schizophrenia (Doc. 551, Second Comp. Hrg. Vol. II at 510 (testimony about social isolation, not eating or bathing, and low activity . Dr. Pietz found that Merriweather’s selective silence, at least during the second evaluation, was volitional and not a sign of mental illness. Dr. Pietz further found that Merriweather was likely pretending not to know what his charges were and why he was being evaluated. The court does not see either of those conclusions as controversial, given that an array of Government and Defense experts, including Dr. Cunningham, found similar behavior. While Dr. Cunningham did not believe that Merriweather was feigning symptoms such as disorganized speech or bathing, Cunningham testified that Merriweather chooses to withhold information from evaluators. (See Doc. 552, Second Comp. Hrg. III at 689 (testimony of Dr. Cunningham that “when I asked [Merriweather] about delusional information from the symptoms he reported, like family members, for example, prearrest, it immediately devolved either I'm not going to address that or it devolved into a disorganized response” . The court does not find that Merriweather’s resistance to inquiries about his past or his family is as inexplicable as Dr. Cunningham does. The fact that Merriweather’s resistance manifests in selective or nonsensical speech does not show that it is caused by psychosis, particularly given the compelling evidence that he frequently starts speaking in a disorganized way to deflect inquiry into areas that he does not want to discuss. Ultimately, the evidence the Defense advanced suggesting that schizophrenia is preventing Merriweather from rationally understanding the proceedings and from assisting his counsel is insufficient to overcome the strong evidence that Merriweather understands the court proceedings and his charges, and is able to communicate and act in his own interests when he so chooses. 86 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 87 of 124 2. Dr. Stalcup’s Findings The court has no doubt that Dr. Stalcup gave his impressions of Merriweather in good faith, based on his extensive experience in addiction medicine. Dr. Stalcup’s conclusion that Merriweather has schizophrenia rests heavily on the evidence of preoffense hallucinations and delusions. Dr. Stalcup decided that the evidence was better interpreted as symptomatic of schizophrenia rather than manifesting substance-induced psychosis and interpreted Merriweather’s withdrawn behavior as additional support for that diagnosis. But the court finds that Dr. Stalcup’s conclusions were occasionally inconsistent. The court was particularly concerned about his categorical denial that drugs other than hallucinogenics and methamphetamine can cause toxic psychosis, which is contradicted by the DSM. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS at 11 (5th ed. 2013) (DSM-5). As the court noted during the competency hearing, the DSM-5’s chart for substance/medication-induced psychotic disorders includes the substances that Merriweather and his family reported that he was using before the offense: heroin, cocaine, amphetamines, and marijuana, including other substances such as alcohol and inhalants. Id. at 111.41 Dr. Stalcup did not give the court a convincing explanation for his position that the American Psychiatric Association did not mean to include other classes of substances among stimulants that can cause toxic psychosis in the DSM-5.42 (Id. at 803-04). The court asked Dr. 41 According to the DSM, a clinician may consider the diagnostic criteria for substance/medication- induced psychotic disorder when finding the presence of one or both symptoms of delusions or hallucinations, when the disturbance does not occur exclusively during the course of delirium, and when the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning, and this disturbance is not better explained by a psychotic disorder that is not substance/ medication-induced. DSM-5 at 111. 42 The court notes that even marijuana, which Dr. Stalcup said cannot on its own cause psychosis, has been known to be contaminated, unbeknownst to the user, with hallucinogenic substances such as phencyclidine (“PCP,” 87 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 88 of 124 Stalcup to reconcile his categorical position that the drugs that Merriweather reportedly took could not have caused toxic psychosis, or would have done so only briefly, with the DSM-5’s inclusion of marijuana and cocaine among the substances that can cause psychotic disorders. When asked about this discrepancy, Dr. Stalcup said that he did not understand the DSM chart to reflect an official medical position that such drugs can cause psychotic symptoms. After some additional probing by the court, Dr. Stalcup eventually acknowledged that “many drugs can produce symptoms that in the transient look psychotic … [and can] mimic psychotic symptoms.” (Id. at 811). Dr. Stalcup also discounted the evidence from Merriweather and his family tying his drug use with occasions when he experienced hallucinations and delusions because he saw no evidence of drug dependence. (Id. at 724). The record evidence simply belies Dr. Stalcup’s conclusion that Merriweather was not consistently using drugs when Merriweather reports that he used marijuana daily, and frequently used cocaine (up to three times daily), crystal methamphetamine, alcohol, ecstasy, and heroin intravenously. (Doc. 142, Comp. Hrg. Vol. I at 43; Doc. 24 at 6). Given these reports, along with the findings of Merriweather’s other experts an illegal substance which can induce hallucinations, delusional ideas, loss of coordination, unpredictable or violent behavior and psychoses). To be sure, the court is not suggesting that the marijuana used by Merriweather was laced with PCP, but simply notes that there are unknown variables about Merriweather’s drug use that caution against categorical statements about the effect of those substances. As one court noted, “unlike alcohol, unlawful street drugs are frequently not the substance they purport to be or are contaminated with other substances not apparent to the naked eye. In particular, marijuana is frequently contaminated with PCP or other psychoactive drugs.” United States v. Bindley, 157 F.3d 1235, 1242 (10th Cir. 1998); see also Taylor v. Cain, CIV.A. 12-03057, 2013 WL 5718543 (W.D. La. Oct. 21, 2013) (rejecting defendant’s claim that he was not responsible for his actions because, earlier in on the day of the offense, he had been smoking a marijuana cigarette that was laced with PCP); United States v. F.D.L., 836 F.2d 1113 (8th Cir. 1988) (discussing defense of temporary insanity due to involuntary drug intoxication when PCP was added to marijuana cigarettes), citing People v. Velez, 175 Cal.App.3d 785, 221 Cal. Rptr. 631 (1985) (rejecting involuntary intoxication defense based on defendant’s smoking a marijuana cigarette unaware it contained PCP; court noted that “a reasonable person has no right to assume that a marijuana cigarette furnished to him at a social gathering will not contain PCP; nor may such a person assume such a marijuana cigarette will produce any predictable intoxicating effect.”). 88 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 89 of 124 that he used a substantial amounts of drugs, and absent any contrary evidence, Dr. Stalcup’s resistance to the evidence about Merriweather’s serious drug use is inexplicable. While Dr. Stalcup denied that the reported drug use could be a contributing cause of Merriweather’s preoffense hallucinations and delusions, the as-yet uncontroverted evidence before the court is that Merriweather reported using substantial quantities of drugs on a daily basis. As Drs. Pietz and Dudley concluded, such drug use would have affected his behavior and perceptions. C. The Defense’s Challenge to the Credibility of the Government’s Experts The Defense has attacked the professional credibility of the Government’s expert witnesses by accusing them of having performed their duties with “extreme negligence” (Doc. 156 at 42), professional “carelessness,” and bias towards the Government. (Doc. 556, Def.’s Comp. Brf. at 12-17).43 Such accusations should not be made lightly; once they are made, they must be evaluated seriously. The main reason the Defense provides for asserting that Drs. Pietz, Berger, and Gualtieri44 have acted with “extreme negligence” is that each one of them ultimately found that Merriweather does not have schizophrenia. (Doc. 156 at 39-41).45 43 The Defense challenged the credibility of Drs. Pietz, Berger, and Gualtieri in the first and second competency hearings. (Doc. 156 at 38-42). 44 The Defense also challenged Dr. Gualtieri’s testimony at the first competency hearing during cross-examination by drawing the court’s attention to Wyatt v. Rogers, 985 F. Supp. 1356, 1387 n.109 (M.D. Ala. 1997), a case in which a court discredited Dr. Gualtieri’s expert testimony. In a footnote, the Wyatt court discredited Dr. Gualtieri’s testimony “because of an attempt to mislead [the court], through charts purporting to give a national average, that was in fact not such an average” and a “failure to correct known error that went to the substance of some very important conclusions.” Id. This court has conducted a thorough review of the transcripts in Wyatt, and finds that the reasons given for discrediting Dr. Gualtieri’s testimony in Wyatt are far wide of the mark; accordingly, the court gives this attempt at impeachment of Dr. Gualtieri no weight. In Wyatt, by all accounts, the court discredited Dr. Gualtieri’s testimony for two reasons: (1) when testifying about the rehospitalization rates of patients in Alabama mental institutions (Wyatt Tr. 1097:20) compared to rehospitalization rates nationally (Wyatt Tr. 1085:13), Dr. Gualtieri used a chart as demonstrative evidence that included numbers labeled as national averages (Wyatt Tr. 895:24-25); and (2) Dr. Gualtieri gave an inaccurate description of a confrontation between two employees at a mental institution. Regarding the first reason, the Wyatt court objected to the use of the term “national average,” which it seemed to expect to be computed as the simple 89 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 90 of 124 The loose bolt in that logic is the assumption that the existence of some symptoms commonly present in a particular disease or condition should automatically lead to a diagnosis of that condition. First, many mental conditions share symptomatology. See, e.g., Parsons v. Heckler, 739 F.2d 1334, 1337 n.5 (8th Cir. 1984) (disability claimant received “differential diagnosis” of a range of six disorders from psychogenic pain disorder to schizoid personality mean of rehospitalization rates from all 50 states. (Wyatt Tr. 1088:4). As Dr. Gualtieri testified, however, the figures he used to represent national “averages” actually described rates aggregated from available data from other hospitals as compiled by a research paper (William S. Edell et al., Effects of Long-Term Psychiatric Hospitalization for Young, Treatment-Refractory Patients, 41 HOSP. & COMMUNITY PSYCHIATRY 780 (July 1990 . (Wyatt Tr. 1085:12-16). Although the Wyatt court found this misleading, it is quite clear to this court that Dr. Gualtieri had candidly discussed his methodology on direct examination (Wyatt Tr. 1097:6-9), and no one contested the truth of Dr. Gualtieri’s facts. The confusion surrounding the term “average” is unfortunate, but it appears to have been used, not as an attempt to mislead the court, but as a shorthand for Dr. Gualtieri to convey his principal point: that rehospitalization rates in Alabama mental institutions are lower than in most other states. The second reason the Wyatt court disregarded Dr. Gualtieri’s testimony was that Dr. Gualtieri recited an inaccurate account of a confrontation between two employees at a mental institution. Wyatt, 985 F. Supp. at 1387 n.109 (citing Wyatt Tr. 1313-27). Specifically, Dr. Gualtieri wrote in his report that no knife fights occurred in the presence of children because there were no knife fights at the institution. After preparing his report, Dr. Gualtieri discovered (the week before he testified) that he was wrong, and candidly admitted as much at the hearing. (Wyatt Tr. 1322:5-6). The reason for his mistake is simple, and readily apparent from even a cursory review of the hearing transcript. Dr. Gualtieri called staff at the mental institution, including the center’s director, the center’s clinical director, and the department director of institutions, to ask about the alleged knife fight. (Wyatt Tr. 1314:16-18, 20-21, 23-25). He was assured “that no such thing happened” and relied upon that statement in preparing his report. (Wyatt Tr. 1321:21-22). Dr. Gualtieri may have been wrong, but there is nothing in that case’s record (and nothing in the record here) to support a finding that he made any attempt to deceive the court in Wyatt. 45 In essence, the structure of this syllogism follows a peculiar logical pattern: 1) 2) 3) Merriweather’s symptoms include X, Y & Z; Symptoms X & Y could indicate schizophrenia, though other explanations exist; and Therefore, it follows that all of these doctors must have acted with extreme negligence when they ultimately concluded that symptoms X & Y are better explained by something other than schizophrenia. This argument fails because of its faulty logic. For example, the Defense could just as well argue that it would be “extremely negligent” to conclude that Merriweather does not have a condition like ovarian cancer because 1) he had significant weight loss and loss of appetite; 2) significant weight loss and loss of appetite can indicate ovarian cancer, though other explanations exist; and 3) therefore, all of these doctors must have acted with extreme negligence when they ultimately concluded that Merriweather’s weight loss and loss of appetite are better explained by something other than ovarian cancer. This analogy leads to an absurd result and that is the point – the conclusion that Drs. Berger and Pietz were negligent is based on the incorrect premise that severe mental illness is the only explanation for Merriweather’s behavior. 90 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 91 of 124 disorder “because many disorders have symptoms which are very similar, and at early stages of treatment a therapist may have insufficient information to determine which specific disorder is present”).46 Second, symptoms of mental illness can be faked. Doctors, by virtue of their training and experience, may use their extensive medical knowledge to identify a diagnosis that best fits the observed symptoms. Therefore, while it is true that Drs. Pietz, Berger, and Gualtieri have each testified that some of the behaviors arguably exhibited47 by Merriweather could be interpreted to be consistent with a diagnosis of schizophrenia, they all found that those behaviors are better explained by other causes.48 In its competency motion, the Defense argues that, in light of the belatedly-released documents from FMC Butner (the ESH/ADs and clinical encounter notes), 46 Throughout the cases addressing mental health assessments in other contexts, experts agree that substance abuse symptoms can mimic psychiatric disorders. See, e.g., Lake v. Astrue, 8:07-CV-1115-T-17MSS, 2008 WL 4279667 (M.D. Fla. Sept. 16, 2008) (psychologist testified that “what confounds the various diagnoses is [the disability claimant’s] history of substance abuse, which can mimic or cause Major Depression, Schizophrenia, paranoia, and mania, particularly due to LSD and crack cocaine. … the [reported] hallucinations and ideas of reference may be residuals from substance abuse.”); Cribbs v. State, W200601381CCAR3PD, 2009 WL 1905454 (Tenn. Crim. App. July 1, 2009) (expert testimony that “some types of drugs like cocaine ... mimic some of the paranoid symptoms of schizophrenia, although, the negative symptoms are not so mimicked usually by cocaine abuse.”); Albert R. v. Arizona Dep't of Econ. Sec., 2 CA-JV 2007-0055, 2008 WL 4643891 (Ariz. Ct. App. Jan. 10, 2008) (expert testified in termination of parental rights case that a person under the influence of drugs “may exhibit psychotic symptoms and that the withdrawal phase of drug abuse can ‘mimic schizophrenia’ to the extent that the two are ‘almost indistinguishable.’”); Billiot v. State, 655 So. 2d 1, 6 (Miss. 1995) (in examination of competency to be executed, court recounted psychologist’s testimony that “cocaine, speed, downers, LSD, PCP, marijuana, etc., could result in a condition that mimics schizophrenia if taken in high enough dosage or over a long period of time.”). 47 The experts called by the Government affirmed when asked by Defense counsel that Merriweather exhibits symptoms that could be consistent with schizophrenia. (See Doc. 142, Comp. Hrg. Vol. I at 111-12; Doc. 145, Comp. Hrg. Vol. IV at 666; Doc. 144, Comp. Hrg. Vol. III at 549). The experts, however, ultimately concluded that Merriweather did not have schizophrenia. (See Doc. 142, Comp. Hrg. Vol. I at 46-47; Doc. 145, Comp. Hrg. Vol. IV at 663-64; Doc. 144, Comp. Hrg. Vol. III at 436). 48 These doctors’ recognition that some of Merriweather’s behavior in isolation could be considered symptomatic of schizophrenia bolsters the credibility of their final assessments because they have shown that they considered, but separately and affirmatively rejected, the conclusion that these manifestations point to a diagnosis of schizophrenia. 91 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 92 of 124 the only conclusion that can be drawn is that Dr. Berger intended to commit a fraud upon the parties and the Court and that the failure to comply with the Court’s Orders regarding disclosure was intentional. The reason for this is simple: Dr. Berger had two choices based upon what was in Merriweather’s file and what Dr. Berger claims was in his purview: 1) that Mr. Merriweather has a severe mental illness or 2) Mr. Merriweather was malingering a mental illness. For whatever reasons that are personal to Dr. Berger, he was never going to choose the first irrespective of the evidence in front of him. (Doc. 330 at 16). The court declines to place the responsibility for the delayed FMC Butner records on Dr. Berger personally. Nor does it find, as the Defense insists without any basis in fact, that Dr. Berger was complicit in withholding the Butner records so that “the [D]efense could not challenge [his] testimony because [the Defense] did not have the material.” (Doc. 330 at 18). At the second competency hearing, the Defense was given a full and fair opportunity to confront Dr. Berger about any “lies” about Merriweather’s condition while at Butner, but failed do so. (Doc. 330 at 18, n. 35).49 49 The Defense highlights a troubling clinical encounter note by FMC Butner nurse Patrice Yoder that she saw Merriweather playing with feces on February 8, 2010. (Doc. 330 at 14; 330-5 at 32, the encounter note reads: “S- Laughs at nurse and states stench is from "bad food". 0- Found playing c feces. A- Inappropriate behavior. P- Plan cell move c custody and psychiatrist when staff available for 3 man hold”). Yoder did not testify at the competency hearing. The Defense charges Dr. Berger with intentionally withholding records like Nurse Yoder’s report to conceal testimonial “lies” that Merriweather generally had acceptable hygiene over the 496 days that he was housed at FMC Butner. See Doc. 330 at 14, n. 35 (“To the extent that it could be found that Berger would have told the same exact lies even in the face of this contradictory documentation, such a conclusion cannot definitively be disputed as he may well have simply said that playing with one’s feces is normal behavior.”). The Defense asked Dr. Berger to read Yoder’s note during the competency hearing, but did not question him further about that entry. (Doc. 553, Second Comp. Hrg. Vol. IV at 975). Dr. Berger made it clear that he did not read the ESH/ADs or the Clinical Encounter/Administrative Notes, but instead spoke to the staff directly about the inmates’ condition. (Doc. 553, Second Comp. Hrg. Vol. IV at 1037). Moreover, as far as the court has been made aware, Nurse Yoder’s note was the only report of Merriweather “playing with” feces. The court was given no further context for that report. If Merriweather was seen doing that once or twice over the time that he was at Butner, the court does not find that Dr. Berger had any obvious reason to lie about the clinical significance of that behavior. The court is perplexed, however, that the Defense has leveled allegations about Dr. Berger without any evidentiary basis and when, given every opportunity to question him about his role in withholding the Butner documents, the Defense failed to do so. 92 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 93 of 124 Turning to Dr. Pietz, the Defense specially faults her with professional “carelessness” and bias towards the Government. (Doc. 556, Def.’s Comp. Brf. at 12-17). The Defense’s charge of carelessness stems from an unrelated case in which Dr. Pietz allegedly misdiagnosed a federal offender. (Doc. 556, Def.’s Comp. Brf. at 12-13, 16). Dr. Pietz is an experienced and qualified expert, having conducted hundreds of forensic evaluations, approximately half of which specifically addressed the competency of a criminal defendant. See United States v. Simmons, 993 F. Supp. 168, 170 (W.D.N.Y. 1998). In 2011-12, Dr. Pietz evaluated a federal defendant (who for privacy reasons is referred to anonymously here as “John Doe”). Dr. Pietz found that Doe exhibited no schizophrenic symptoms during an examination at MCFP Springfield. (Doc. 556, Def.’s Comp. Brf. at 12-13). However, Doe was later found incompetent to stand trial because of a schizoaffective disorder and was civilly committed in 2013. (Id.). The Defense posits that the Doe case’s disposition shows that “Dr. Pietz has a documented history of misdiagnosing a schizophrenic as being mentally intact.” (Id. at 12). The court finds far less significance in the Doe case than the Defense advocates for two reasons. First, Dr. Pietz’s primary goal was to treat Doe at Springfield, not diagnose him, as the Government points out. (Doc. 568, Govt.’s Comp. Reply Br. at 9). Second, Dr. Pietz did not “miss” Doe’s mental health diagnosis; she simply concluded that she did not see any evidence of symptoms during Doe’s time at Springfield that warranted treatment. (Doc. 568, Govt.’s Comp. Reply Br. at 9). Dr. Pietz stated in her report that she considered Doe’s mental health history and accepted his presenting diagnosis of Schizoaffective Disorder, Bipolar Type from FMC Butner. (Doc. 556, Def.’s Comp. Brf. at 13; Def. Ex. 273). However, as Dr. Pietz wrote in her report, during Doe’s time at MCFP Springfield, he “never exhibited symptoms of a mental illness. Consequently we had no justification to prescribe medication to him. It is my opinion Mr. Doe 93 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 94 of 124 previously met the criteria for Schizoaffective Disorder, Bipolar Type. Currently, these symptoms have abated.” (Doc. 556, Def.’s Comp. Brf. at 13; Def. Ex. 273). As both parties have acknowledged in this case, symptoms of schizophrenia may wax and wane.50 (See Doc. 551 at 490; Doc. 556, Def.’s Comp. Brf. at 28; Doc. 568, Govt.’s Comp. Reply Br. at 10). Doe apparently presented no symptomatic behavior at Springfield. Nothing presented to this court shows that Dr. Pietz was negligent or even incorrect about her conclusion that Doe did not need medication and further treatment at that time. Dr. Pietz explicitly recognized Doe’s schizophrenia diagnosis; she simply saw no evidence of incapacitating mental illness while Doe was at Springfield. Therefore, she concluded that Doe was (at that time) competent to proceed to trial. The reemergence of Doe’s symptoms seven months after he left Springfield and the subsequent incompetency finding does not make Dr. Pietz less reliable as a psychologist. If there was evidence that Doe was manifesting schizophrenia at the time of Dr. Pietz’s evaluation that she ignored, that evidence might be more relevant to the issue of professional competence, but no such allegation is before this court.51 Moreover, the court hesitates to evaluate an expert witness’s credibility based on a single diagnosis in an unrelated case about which the court has limited information. If the test of professional competence depended on whether another court has ever made a finding contrary to an expert witness’ diagnosis, few experts would be permitted to testify again. 50 Defense expert Dr. Mark Cunningham confirmed this point during his testimony, describing schizophrenia as a “heterogeneous disorder” that “takes different forms” in which the symptoms fluctuate in appearance, intensity, timing and duration. (Doc. 551, Second Comp. Hrg. Vol. II at 471-73). 51 At the 2014 competency hearing, Dr. Pietz freely acknowledged that there were occasions when she made mistakes about a patient and had diagnosed a patient as schizophrenic when he was he was actually malingering. (Doc. 549, Second Comp. Hrg. Vol. I at 237-38). 94 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 95 of 124 The court also finds no evidence that bias towards the Government clouded Dr. Pietz’s evaluation of Merriweather. The Defense bases this allegation on an email that Dr. Pietz sent to the Government on December 3, 2013, indicating “that she had determined Mr. Merriweather to be competent” before notifying the court and before receiving a copy of a transcript that she had requested to review for Merriweather’s competency determination. (Doc. 549, Second Comp. Hrg. Tr. I at 229-230; Def. Ex. 174). The Defense faults Dr. Pietz with failing “to keep the Court and the [D]efense informed about material matters.” (Doc. 556, Def.’s Comp. Brf. at 16). The court finds no evidence that the email reflects a bias that affected Dr. Pietz’s diagnosis and evaluation. Indeed, the court notes this argument runs wholly contrary to Dr. Pietz’s initial actions in this case when Merriweather presented for a criminal responsibility evaluation. She delayed the review, called the court, and reported she had concerns about Merriweather’s competence – hardly the conduct one would expect from a biased doctor attempting to favor the Government. It was just these candid concerns articulated by Dr. Pietz about Merriweather’s condition that, at least in part, led to the court’s decision to hold a second competency proceeding. (Doc. 142, Comp. Hrg. Vol. I at 96). This hardly shows a pro-Government bias. D. Merriweather Does Not Currently Suffer from Schizophrenia The Defense’s experts at both competency hearings concluded that Merriweather currently suffers from schizophrenia. (See Doc. 551, Second Comp. Hrg. Vol. II at 567, 594 (Dr. Cunningham’s finding that Merriweather falls on the schizophrenia spectrum) and Doc. 552, Second Comp. Hrg. 2d, Vol. III at 764, 773-74 (Dr. Stalcup’s diagnosis of psychosis and paranoid schizophrenia . The experts concluded that Merriweather’s schizophrenia is evidenced by the following symptoms: (1) hallucinations and delusions, (2) selective mutism and alogia, (3) 95 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 96 of 124 poor hygiene, (4) flat affect, and (5) weight loss.52 The Defense asserts that these symptoms are valid because Merriweather was not found to be malingering on tests designed to identify such behavior. (Doc. 156 at 43). The Defense also argues that brain scans provided objective evidence that Merriweather has schizophrenia. The court discusses these factors below. 1. Hallucinations The court has counted five specific instances where Merriweather was alleged to have responded to internal stimuli (hallucinations).53 As explained more fully below, four of these alleged incidents are questionable; and the other one coincided with his illicit drug use. The first incident was described by Merriweather’s former girlfriend, Latisha Simpson, who testified that Merriweather experienced “visions and hallucinati[ons].” (Doc. 144, Comp. Hrg. Tr. Vol. III at 554). Further questioning revealed that Simpson’s statement about “visions and hallucinati[ons]” actually referred to one bad dream. (Id.). Another incident that could arguably be described as a hallucination was when Merriweather mentioned an alleged accomplice named “Charlie” during his recollection of the robbery in interviews with Dr. Pietz. (See Doc. 142, Comp. Hrg. Tr. Vol. I at 32-33; Doc. 24 at 15). Dr. Pietz dismissed this latter 52 While Defendant’s brief states that “each [expert] testified that behaviors they witnessed could be a positive or negative symptom of schizophrenia,” it never explicitly enumerates which behaviors are believed to evidence schizophrenia. (Doc. 156 at 37). Consequently, the court has scoured the record for all relevant behaviors discussed at the hearing. 53 Dr. Dudley and Dr. Merikangas have mentioned non-specific accounts of Merriweather responding to internal stimuli, but these accounts are insufficiently detailed for the court to evaluate them. Dr. Dudley testified during the hearing that Merriweather appeared to be responding to internal stimuli when he visited him in 2009. (Doc. 147, Comp. Hrg. Vol. VI at 943). However, no mention of internal stimuli was included in Dr. Dudley’s affidavit (Doc. 147, Comp. Hrg. Vol. VI at 965) and further prodding revealed that “internal stimuli” to Dr. Dudley simply referred to “something that was causing [Merriweather] to smile.” (Id. at 965, 1084). Dr. Merikangas similarly testified that he saw Merriweather “responding to some internal stimulus,” but cautioned that he “didn’t know what it was.” (Id. at 1149). Without more information, the court cannot reach any conclusions about these facts without engaging in armchair speculation, which this court declines to do. 96 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 97 of 124 account as an attempt by Merriweather to deflect responsibility for the robbery and noted that Merriweather stopped talking about “Charlie” after she pointed out discrepancies between Merriweather’s account and the investigative record. (Tr. Vol. I, 35).54 The third incident also occurred during Merriweather’s evaluation at MCFP Springfield. On a single occasion, Merriweather told psychologist Dr. Preston that he thought he might be suicidal and reported seeing gremlins. (Doc. 142, Comp. Hrg. Tr. Vol. I at 39). Dr. Preston wrote in her report that she found Merriweather’s claim of seeing gremlins to be suspicious. (Doc. 142, Comp. Hrg. Tr. Vol. I at 40). Dr. Pietz was skeptical of Merriweather’s report for at least five reasons: (1) visual hallucinations are more consistent with illicit substance abuse than psychosis; (2) in the rare cases where an individual actually experiences a visual hallucination, the hallucination is usually frightening and not casually mentioned; (3) generally, people who complain about suicide are typically not actually suicidal since drawing attention to their suicidal inclinations increases the risk that their suicide attempts will be intercepted; (4) after being placed under suicide watch, Merriweather became primarily concerned about the loss of privacy and requested to be taken off suicide watch, and (5) although true hallucinations never completely go away, Merriweather never again mentioned gremlins. The court finds Dr. Pietz’s reasoning persuasive and concludes that Merriweather’s claim of seeing gremlins was most likely pretense, or as Dr. Gualtieri noted, Merriweather may have been teasing his evaluators. (Doc. 144, Comp. Hrg. Tr. Vol. III at 402). 54 One may be led to suspect that Merriweather conceived of “Charlie” following his initial interview at the Jefferson County Jail. (See Def. Ex. 16 at 88). The name is also shared by a sister-in-law of a family friend. (See Def. Ex. 109 at 1). In any case, eyewitness accounts make it clear that there was no accomplice. (Def. Ex. 13). Moreover, after listening to the tape of the police interrogation where “Charlie” was referenced (Def. Ex. 17), the court concludes that this creation by Merriweather was an attempt at deception, not the result of hallucination. 97 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 98 of 124 The fourth incident that could potentially be interpreted as a hallucination was a single occasion when Merriweather was found scraping his arms with a spork and complaining that there were bugs in the room. (Doc. 142, Comp. Hrg. Tr. Vol. I at 42). Merriweather mentioned the bugs casually and never complained about bugs in his cell again. (Id.). For the same reasons she discounted Merriweather’s account of gremlins, Dr. Pietz found this claim similarly suspect. Finally, the fifth incident was related by Merriweather’s sister, Kim Patton, who testified that sometime in either late 2001 or 2002, Merriweather told her that he was hallucinating that there were demons in everybody, including members of his family. (Doc. 143, Comp. Hrg. Tr. Vol. II at 299-300). Patton suspected drug use, which Merriweather confirmed when Patton raised the question. (Doc. 143, Comp. Hrg. Tr. Vol. II at 300). From a review of the record, the court finds that the best theory to explain the association between Merriweather’s hallucinations and his substance abuse is that his substance abuse caused his hallucinations. It is virtually uncontested that Merriweather has used illicit substances. During interviews with Dr. Pietz, Merriweather described a history of substance abuse that began with alcohol at age 14, grew to include marijuana at age 17, and expanded to included cocaine, crystal methamphetamine, and ecstasy by age 22. (Doc. 142, Comp. Hrg. Tr. Vol. I at 43). He also acknowledged using “various pills” and injecting heroin intravenously. (Id.). Following the robbery, Merriweather tested positive for opiates while being treated at UAB Hospital. (Def. Ex. 15 at 18). There are correlations between Merriweather’s history of substance abuse and reports of his odd behavior. As already noted, Merriweather’s complaint to Patton that he was seeing hallucinations was followed by an admission that he had been taking drugs. (Doc. 143, Comp. 98 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 99 of 124 Hrg. Tr. Vol. II at 300). Similarly, when Merriweather told his father that he was hearing voices, it was during the period when Merriweather reported taking illicit drugs. (Doc. 24 at 7). According to Dr. Pietz, hallucinations are actually quite rare, and in any event, more consistent with illicit drug use than psychosis. (Doc. 142, Comp. Hrg. Tr. Vol. I at 40). Substances such as marijuana, cocaine, crystal methamphetamine, alcohol, and ecstasy can cause psychotic symptoms to develop and persist for some time after ingestion. (Doc. 142, Comp. Hrg. Tr. Vol. I at 40, 43, 121-22, 159, 163; Doc. 145, Comp. Hrg. Tr. Vol. IV at 604). Given that prolonged drug use can cause hallucinations and psychotic-like symptoms long after the consumption of such drugs has ceased, it is reasonable to conclude that someone who has not only had a history of extensive drug use, but a history of hallucinations that coincided with that drug use,55 most likely suffers from hallucinations (to the extent that he suffers from actual hallucinations rather than dreams) because of substance abuse, not a mental disease. The court finds this is the case here, and therefore, the court adopts the findings of Drs. Berger and Pietz that Merriweather’s psychotic-like symptoms were most likely drug-induced and not the product of a mental disease. 2. Mutism The great weight of the evidence indicates that Merriweather is acting volitionally when he elects not to communicate verbally. As Dr. Berger explained, there is a difference between actual and selective mutism. People who are actually mute cannot speak whereas people who are 55 The court notes that while interacting with Dr. Mirsky, Merriweather never self-reported any hallucinations or delusions. (Doc. 148, Comp. Hrg. Vol. VI at 1090-91). Indeed, virtually all the reports of these purported symptoms were historical in nature (and, as the court has already noted, this “history,” which was garnered from Merriweather’s family members, is less than credible in some instances). 99 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 100 of 124 selectively silent can speak, but choose not to when it suits them. (Doc. 144, Comp. Hrg. Vol. III at 430; Doc. 145, Comp. Hrg. Vol. IV at 599). Dr. Berger found that Merriweather was being selectively silent. (Doc. 144, Comp. Hrg. Vol. IV at 596-97; Def. Ex. 51 at 1 (Merriweather was “mute with most of the staff but, ... [was] interested and willing to discuss” what Dr. Berger wrote in his report. . Dr. Pietz also found that Merriweather’s decision to stop speaking following a recorded interview on November 27, 2013, reflected his unwillingness to speak about the offense – as opposed to signs of schizophrenia or psychosis. (Doc. 549, Second Comp. Hrg. Vol. I at 54-55). Medical and correctional professionals who observed Merriweather, such as Diana Shirley, Kelly Hammonds, Eugene Singleton, and Timothy Laatsch, Ronald Higgins, and Felicia Williams all communicated freely with Merriweather. (Doc. 148, Comp. Hrg. Vol. VII at 1233-34, 1244; Doc. 150, Comp. Hrg. Vol. VIII at 1268; Doc. 148, Comp. Hrg. Vol. VII at 1229); Doc. 551, Second Comp. Hrg. Vol. II at 371, 373; Doc. 549, Second Comp. Hrg. Vol. I at 323). Dr. Mirsky testified that “[t]here was no period of time when [Merriweather] was mute with [him].” (Doc. 147, Comp. Hrg. Tr. Vol. VI at 1091). Even with respect to those incidents to which the Defense points as evidence of Merriweather’s mutism,56 the record evidence reveals Merriweather’s ability to communicate when he wishes. Dr. Dudley testified that when Merriweather refused to speak with him, he dismissed him with “hand signals and the verbal refusal to speak.” (Doc. 147, Comp. Hrg. Tr. 56 Having reviewed the “silent” tapes from the Shelby County Jail (Def. Ex. 121, 131-35), the court cannot tell whether Merriweather was communicating with his attorneys, deliberately not communicating with his attorneys, or a combination of both. The court does note, however, that the testimony provided by Defense witnesses alleging that Merriweather is unable to communicate is belied by other testimony -- by both Government and Defense witnesses -- indicating that Merriweather engaged in long conversations with his attorneys. (See e.g., Doc. 146, Vol. V at 822-23 (testimony by Jack Earley that Merriweather engaged in conversation with Richard Jaffe for hours . To be sure, the evidence in the record indicates that Merriweather can be less than communicative when he decides to do so. 100 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 101 of 124 Vol. VI at 946). After Merriweather’s attorneys and Jack Earley were initially turned away during a visit on June 27, 2011, Merriweather told a guard to call his lawyers back because he recognized Jaffe and wanted to talk. (Doc. 146, Comp. Hrg. Tr. Vol. V at 821). When Mr. Earley and Mr. Jaffe returned, Merriweather engaged in a conversation with Mr. Jaffe that, according to Earley, lasted for hours. (Doc. 146, Comp. Hrg. Tr. Vol. V at 822-23). Merriweather himself decides when to speak, and when not to. The evidence is persuasive that Merriweather’s silence is not the product of psychosis.57 3. Poor Hygiene The Defense argues that the relationship between personal hygiene and schizophrenia shows that Merriweather is suffering from negative symptoms of schizophrenia. (Doc. 146, Comp. Hrg. Vol. V at 762). Dr. Cunningham found that the evidence of Merriweather’s poor hygiene was a highly significant indicator of negative symptoms of schizophrenia. (Doc. 552, Second Comp. Hrg. Vol. III at 662). Dr. Cunningham interpreted Merriweather’s failure to shower for three months at Butner and that nurses’ notes reflected that he showered only once from mid-October 2010 to mid-February 2011 at Butner to be a sign of significant social withdrawal. (Doc. 552, Second Comp. Hrg. Vol. III at 663). Dr. Berger denied that hygiene was a major issue for Merriweather while he was at FMC Butner and further noted that poor hygiene may be used by a prisoner as a tool to get attention. (Id.). Dr. Berger also noted that prisoners at Butner will sometimes forgo showers and just sponge bathe using the sink. (Id. at 1048). 57 This conclusion is buttressed by the testimony of Dr. Mirsky, who indicated that Merriweather was cooperative during his evaluation. (Doc. 147, Comp. Hrg. Vol. VI at 1089). 101 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 102 of 124 Dr. Dudley suggested that Merriweather’s hygiene was indicative of his inability to take care of himself, which was indicative of Merriweather’s mental condition. (Doc. 147, Comp. Hrg. Tr. Vol. VI at 929). While poor hygiene is not a symptom of schizophrenia, Dr. Dudley offered it as a proxy for Merriweather’s inability to care for himself (i.e., another sign of disorganized behavior). (Id.). When pressed on that point, Dr. Dudley admitted that he was unaware of Judge Ott’s order, issued after Dr. Dudley’s last visit with Merriweather, which directed staff at the Shelby County Jail to force bathe Merriweather if necessary. (Id. at 999). As it turns out, forced bathing was unnecessary because Merriweather, when faced with Judge Ott’s order, began bathing himself daily without issue. (Doc. 148, Comp. Hrg. Tr. Vol. VII at 1220; 1249). Dr. Berger similarly felt that Merriweather’s reversal from refusing to eat and bathe to deciding to do so when the court issued a force-feeding order was not consistent with delusional thinking. (Id. at 1058-59). Therefore, the court finds, in any event that Merriweather had the ability (and mental capacity) to care for his personal hygiene, but simply declined to do so until a court order motivated him to act. 4. Flat or Inappropriate Affect It is uncontested that flat affect can be one negative symptom of schizophrenia. (Doc. 146, Comp. Hrg. Vol. V at 770; Doc. 147, Comp. Hrg. Vol. VI at 933). Merriweather has presented as fairly subdued and occasionally uncommunicative since the last competency hearing, so it is unsurprising that several observers viewed him as having a flat affect. Dr. Cunningham, in his review of Butner’s records, counted 519 nurse observations on ESH/ADs that Merriweather had a flat or inappropriate affect over 71 weeks at FMC Butner. (Doc. 551, Second Comp. Hrg. Vol. II at 505). Drs. Dudley and Pietz also testified to Merriweather 102 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 103 of 124 exhibiting flat affect.58 (See Doc. 147, Comp. Hrg. Vol. VI at 944, 952, 999, 1002 (Dr. Dudley’s testimony that Merriweather’s “affect was largely flat”); Doc. 549, Second Comp. Hrg. Vol. I at 70, 97-98 (Dr. Pietz noting that Merriweather “is always flat.” . Dr. Dudley’s report states that Merriweather’s “affect was often inappropriate, in th[at] he often smiled and laughed while talking about content that didn’t merit such response.” (Def. Ex. 9 at 5). The court has weighed and considered this evidence in determining Merriweather’s competency. Consistent with the analysis below in the Malingering section, see infra, the court believes that Merriweather has been feigning a flat or inappropriate affect. 5. Weight Loss The Defense has presented two theories to connect Merriweather’s weight loss to schizophrenia: (1) it results from a delusion of persecution, which could be a negative symptom of schizophrenia (Doc. 142, Comp. Hrg. Vol. I at 120), and (2) “a person incapable of making basic decisions about [his] own physical health is in no position to make the sorts of decisions required of a defendant facing the death penalty.” (Doc. 156 at 44). Regarding the first argument, when Merriweather refused to eat, the record simply does not suggest that a delusion of persecution was a primary reason why Merriweather fasted. Dr. Berger testified that weight loss is often a way for prisoners to get attention. (Doc. 145, Comp. Hrg. Vol. IV at 617). His observation notes related to his evaluation of Merriweather indicate that Merriweather used his refusal to eat “as a bargaining chip[,] asking for a phone call or other staff request.” (Def. Ex. 53 at 1). “There is some apparent manipulation in this,” Dr. Berger noted, “where [Merriweather] 58 Earley did at one point during the hearing describe Merriweather as “flat” in reference to his energy level. (See Doc. 146, Comp. Hrg. Vol. V at 837). 103 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 104 of 124 will at times key a request with refusal of food if the request is not granted.” (Def. Ex. 52 at 1). One example where Merriweather manipulated his weight to accomplish a desired result occurred during his stay in FMC Butner when he used weight loss to force the facility to house him in a better cell. (Doc. 146, Comp. Hrg. Vol. V at 761). However, Merriweather’s use of his weight loss as a bargaining chip to manipulate others stopped after Director Shirley confronted him with a feeding tube. (Doc. 148, Comp. Hrg. Vol. VII at 1233). The Defense argues that “it is not rational for a person to have to be strapped down and threatened with a tube being snaked down his nose to finally get someone to eat,” as “[a] rational person would never let it progress that far.” (Doc. 156 at 44). But that argument is undercut by Merriweather’s own volitional conduct. Judge Ott’s court order made Merriweather’s concerns about poisoned food immediately vanish, and Merriweather successfully negotiated with Director Shirley to avoid being force-fed. (Doc. 148, Comp. Hrg. Vol. VII at 1233-35). Merriweather’s ability to successfully negotiate with medical and correctional staff members shows that he is in fact capable of making decisions and engaging with his environment to reach his goals. 6. Malingering Medical symptoms can be malingered, and there is evidence that Merriweather was faking or pretending on some occasions during mental health evaluations, particularly when he displayed disorganized speech or claimed not to remember information about his life and the offense. As discussed above, during the first competency hearing, both Drs. Pietz and Mirsky concluded that Merriweather did not malinger during the testing process, or in other words, he appeared to give his best effort when tested. (Doc. 142, Comp. Hrg. Vol. I at 67 (no suggestion 104 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 105 of 124 of malingering of effort on Merriweather’s test results on the Structured Interview of Reported Symptoms); id. at 87 (no suggestion of malingering on Test of Memory Malingering administered by Dr. Mirsky . However, during evaluations, Merriweather presented a different picture. Dr. Pietz recalled during the first competency hearing that some of Merriweather’s responses led her to suspect malingering. (Doc. 142, Comp. Hrg. Vol. I at 49). When confronted about the suspicious test results, Merriweather admitted that he answered questions about whether or not he experienced hallucinations based on how he experienced the world when under the influence of illicit substances. (Id.). In the second competency hearing, Dr. Pietz identified several incidents that led her to conclude that Merriweather was faking mental illness or disability while he was being evaluated for mental disease, such as Merriweather telling Drs. Dudley, Tomelleri, and Stalcup that he did not know what his charges were. (See Doc. 549, Second Comp. Hrg. Vol. I at 28-29; Doc. 147, Comp. Hrg. Vol. VI at 943-44 (Dr. Dudley’s testimony stating that Merriweather showed no understanding of the nature of the case, the charges against him, or the possible outcomes . Dr. Pietz was similarly skeptical that Merriweather suddenly fell silent during Dr. Stalcup’s evaluation and then suddenly saying, ‘Whoa, I think I went off on a fantasy there. I don't represent it,’” was a true incidence of psychosis. She saw the exchange as an attempt to malinger mental illness. (Doc. 549, Second Comp. Hrg. Vol. I at 81). Dr. Pietz concluded from these incidents that Merriweather’s “alleged psychosis appeared when he didn't want to be cooperative, when he didn't want to answer certain questions. But then when there was something that was important to him, like he wanted a commissary list or he wanted to talk about food or he wanted to talk to staff about something, there was no evidence of any psychotic 105 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 106 of 124 behavior.” (Id. at 93). An example of Merriweather’s switching behaviors is his friendly and focused conversation with Felicia Williams, but refusing to speak at all during Dr. Pietz’s interviews. (See Doc. 549, Second Comp. Hrg. Vol. I at 323 (testimony of Felicia Williams); see also Doc. 144, Comp. Hrg. Vol. III at 402; Gov’t Exs. 6, 7, and 8 (testimony of Dr. Gualtieri that when Merriweather was questioned about the robbery or other serious matters he became evasive, playful, and nonsensical); Doc. 144, Comp. Hrg. Vol. III at 402; Gov’t Exs. 6, 7, and 8 (testimony of Dr. Gualtieri that when Merriweather was questioned about the robbery or other serious matters he became evasive, playful, and nonsensical); Doc. 552, Second Comp. Hrg. III at 689 (Dr. Cunningham’s agreement that Merriweather chooses to withhold information from evaluators that Merriweather likely knows . Dr. Berger also observed Merriweather’s “manipulative tactics.”59 (See Doc. 145, Comp. Hrg. Vol. IV at 601-609, 658) (recounting Merriweather’s evasiveness while being interviewed and attempts to bargain around or manipulate his environment). Dr. Berger found Merriweather able to communicate when it served Merriweather’s own interests. (Doc. 145, Comp. Hrg. Vol. IV at 596-97, 616 (Dr. Berger testified that “it appeared that [] when [Merriweather] chose to or did communicate, he could communicate in a very reasonable manner. When he chose not to communicate, he would either wave a person away or as in the interviews. … he just disregarded the questions, or really there was no exchange of information” . Therefore, Dr. Berger concluded that Merriweather’s silence was not a symptom of a mental disorder, but rather manipulative behavior. (Id.). While Dr. Berger stopped short of making a malingering 59 Dr. Gualtieri also testified about similar conduct exhibited by Merriweather during their interviews. (Doc. 144, Comp. Hrg. Vol. III at 402) (testifying to Merriweather becoming “evasive and playful” during their interviews and refusing to answer questions or answering them in a nonsensical way). 106 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 107 of 124 diagnosis,60 he stated that Merriweather intentionally refused to cooperate by going through these actions that could result in serious penalties to him. Both Government and Defense experts agreed that Merriweather at times pretends not to know things that he does or adopts an evasive strategy to avoid discussing certain topics. (See, e.g., Doc. 551, Second Comp. Hrg. Vol. II at 519 (Dr. Cunningham’s testimony that Merriweather knows what he is charged with and is acting volitionally when refusing to discuss the offense . The record contains persuasive evidence that Merriweather has malingered symptoms of mental illness during mental health evaluations. The experts who evaluated Merriweather, both for the Defense and the Government, generally agree that he occasionally reports that he does not know or remember things that he probably does. Dr. Cunningham attributes Merriweather’s selective mutism and unwillingness to discuss the offense, or on occasion, his background, to a “treadmill effect”: that the stress of remembering is too much for him to cope mentally with and thus he shuts down. (Id. at 520). “The defect,” Dr. Cunningham, concluded, is “not with [Merriweather’s] memory. It is with his rationality.” (Id. at 520). The court has carefully considered the reports of the lay and expert witnesses about Merriweather pretending or faking behaviors that are also negative symptoms of schizophrenia. The Defense’s experts discount Merriweather’s behavior as irrational because it has no identifiable secondary gain. However, the court is convinced that Merriweather perceives some benefit to his failing to cooperate with evaluators (and, for that matter in his restricting his food 60 Dr. Berger considered finding malingering but decided against that diagnosis, stating, “I actually thought long and hard about making that diagnosis, but to me, his presentation – I thought he could do a much more credible job in malingering mental illness than he was doing[.]” (Doc. 145, Comp. Hrg. Vol. IV at 615). 107 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 108 of 124 intake and hygiene) even if that perception is wrongheaded. The court need not speculate as to what those motivations may be. The court is satisfied, based on the weight of the evidence, that Merriweather’s conduct is not a product of a severe mental illness that has stripped him of the ability to make rational (even if misguided) choices. 7. Brain Scans The Defense has argued that Merriweather’s brain scans provide objective evidence of schizophrenia. (Doc. 156 at 37). In the 2011 competency hearing, Dr. Merikangas testified that he examined Merriweather’s brain scans and saw “atrophy or maldevelopment” in the left parietal and frontal lobes in brain scans of Merriweather’s brain. Dr. Merikangas found that the brain scans showed “abnormalities which have been described in cases of schizophrenia.” (Doc. 148, Comp. Hrg. Vol. VII at 1135; Def. Ex. 84). The court has considered Dr. Merikangas’s testimony on this point, but accords it little weight because, as Dr. Merikangas has frankly conceded, “[the scan] itself is not diagnostic of anything in particular but it correlates with what is seen frequently in people with schizophrenia.” (Doc. 148, Comp. Hrg. Vol. VII at 1137). However, he also testified that the brain scans could also be consistent with other conditions, including conditions such as lupus, auto-immune diseases, post-encephalitis, some types of demyelinating disease, traumatic brain injuries, a viral infection that affects the brain (such as measles or HIV), and metabolic disturbances (like thyroid diseases or disorders of calcium metabolism). (Doc. 148, Comp. Hrg. Vol. VII at 1141). Thus, even if the court accepted Dr. Merikangas’s methodology as valid, any conclusion that the brain images show that Merriweather has schizophrenia is far too speculative to be useful to the court’s inquiry.61 Given 61 The experts at the initial competency hearing agreed that the enterprise of diagnosing medical conditions 108 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 109 of 124 this inconclusive finding, and in light of the totality of evidence presented, the brain scans are not sufficient evidence to support a finding that Merriweather suffers from schizophrenia. 8. Merriweather’s Alleged Use of Neologisms The parties have been litigating the issue of Defendant’s competency for the lion share of the last seven years, and in doing so have heard from a variety of medical experts called by each side. Despite this extended litigation history, the question of whether Merriweather’s use of neologisms indicates some type of thought disorder (which could be indicative of schizophrenia) has, to the best of the court’s recollection, never come up – that is, until the most recent competency hearing earlier this year. At that hearing, Defense counsel cross-examined Dr. Pietz about neologisms during the Government’s case in chief, and Dr. Cunningham testified about Merriweather’s use of neologisms during Merriweather’s presentation of evidence. A neologism is, just as its Latin roots suggest, a “new word,” sometimes coined, other times made up. There is some consideration in the medical field that the use of neologisms by adults may equate to a symptom of disorganized thought which, in turn, can indicate a schizophrenic thought disorder. Dr. Cunningham said that this sometimes can occur in conjunction with disorganized speech, or what formerly was referred to as “word salad.” First, there is no dispute that, to the extent Merriweather used neologisms, he did so infrequently. using brain imaging techniques, such as MRI or PET, is questionable at best. Dr. Merikangas himself cautioned that he “wouldn’t presume to look at [the MRI scans] and say [he could] make a diagnosis from these tiny images.” (Doc. 148, Comp. Hrg. Vol. VII at 1139-40). Dr. Landis testified that it is inappropriate to use imaging to diagnose behavior. (Doc. 150, Comp. Hrg. Vol. VIII at 1299). Dr. Gualtieri found the MRI scans to be ambiguous and questioned the legitimacy of attempting to make specific findings based on them. He stated that a clinician’s reaction to seeing a scan with thinned brain tissue is that “[y]ou would shrug your shoulders. You need clinical correlation. … You can find these abnormalities in the brain of perfectly normal people.” (Doc. 144, Comp. Hrg. Vol. III at 395-96). 109 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 110 of 124 Q A Q A Neologism was never mentioned in the first Pate hearing by anyone? Yes, sir. Why? His use of that is infrequent, at least in my experience …. (Doc. 551 at 271, Second Comp. Hrg. Vol X at 583). Second, although Dr. Pietz and Dr. Cunningham disagreed about how frequently one would need to use neologisms to indicate a symptom of psychosis, what is clear is that whether a use of a neologism suggests schizophrenia is a matter of interpretation. There may be other explanations for such use. For example, in prison populations, there are words that are unique to the prison culture. That is, prisoners sometimes invent their own language and vocabulary. There are also instances where an individual misuses or mispronounces a word, and that mistake can approximate a neologism. Perhaps the important point is this: language is inextricably intertwined with culture, and it is difficult to draw a firm conclusion about whether a unique word or phrase is (1) a product of someone attempting to speak beyond his education level, (2) a product of that person making words up (whether with an agenda, or otherwise for fun, fame, or profit), (3) a concerted attempt to brand a particular vocabulary (e.g., within a prison culture), or (4) an indication of disorganized thought and speech. In this case, Merriweather’s alleged use of neologisms was infrequent. Moreover, as the court has already concluded, Merriweather has volitionally made attempts to control conversations, and one of the techniques he used in doing so is talking in nonsensical terms. Although Dr. Cunningham opined that Merriweather’s neologisms indicate disorganized speech and thought, he acknowledged the possibility that Merriweather was engaging in these speech 110 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 111 of 124 patterns in his attempts to malinger: Q A Q Disorganized thought; there was some testimony in the first hearing from Dr. Berger, as I recall, that he would have a logical conversation with Mr. perfectly candid and Merriweather as they were setting up the video camera. They would turn the camera on and then he would go into what you might characterize as disorganized speech? Yes, sir. How does that fit into the analysis of all this? And by the way, he would say after the camera was turned off, if I recall correctly, he would go back to more candid, organized speech, including immediately after that if he saw him on a round. A Certainly one possibility is that he is malingering and so he turns that on. (Doc. 551 at 273-74, Second Comp. Hrg. Vol. X at 585-86). After careful review, the court concludes that there is simply insufficient evidence that Merriweather’s alleged infrequent use of neologisms suggests disorganized thought caused by a psychosis. E. Application of the Competency Standard While a finding of incompetency is predicated on the existence of a mental disease or defect, the standard for evaluating a defendant’s competency to stand trial is not a medical inquiry, but rather a legal determination.62 United States v. Makris, 535 F.2d 899, 905, 907 (5th Cir. 1976) (“The question of competency, of course, is a mixed question of law and fact” but “[i]n the final analysis, the determination of competency is a legal conclusion; even if the 62 See 18 U.S.C. § 4241(d) (“If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent . . .”). 111 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 112 of 124 experts' medical conclusions of impaired ability are credited, the judge must still independently decide if the particular defendant was legally capable of reasonable consultation with his attorney and able to rationally and factually comprehend the proceedings against him.”).63 Ultimately, however, whether Merriweather has schizophrenia is ancillary to a determination of his competency. A defendant may be found competent even if a court finds that he or she had schizophrenia. See Ferguson v. Sec'y, Florida Dep't of Corr., 716 F.3d 1315, 1340 (11th Cir. 2013) (finding that the nature and severity of petitioner’s mental illness do not render his “perception of reality so distorted” that he cannot adequately appreciate the connection between his crimes and impending execution”); Wright v. Sec'y for Dep't of Corr., 278 F.3d 1245, 1259 (11th Cir. 2002) (“[t]he fact that [the petitioner] suffers from chronic schizophrenia the effects of which have come and gone over the years is not enough to create a real, substantial, and legitimate doubt” about his competency to stand trial); Lawrence v. Sec'y, Fla. Dep't of Corr., 700 F.3d 464, 482 (11th Cir. 2012) (affirming the district court's finding that a diagnosis of schizophrenia is not enough to show that a defendant was incompetent to enter a guilty plea or stand trial). As discussed above, the test for competence is whether the defendant is presently suffering from a mental disease or defect rendering him mentally unable to (1) understand the nature and consequences of the proceedings against him or (2) to provide present sufficient assistance to counsel in his defense with a reasonable degree of rational understanding. Dusky v. United States, (1960) (per curium); see also Cooper v. Oklahoma, , 63 The determination of competency as a whole is a mixed question of law and fact. The Eleventh Circuit has held that for direct review purposes, a competency determination is treated as a finding of fact. See United States v. Hogan, 986 F.2d 1364, 1371 (11th Cir. 1993) (“If a state court’s conclusion that a defendant is competent to stand trial is a factfinding for habeas review purposes, and the Supreme Court has said it is, then it follows that the identical conclusion by a district court is a factfinding for purposes of direct review”). 112 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 113 of 124 354 (1996) (“The test for incompetence is also well settled.”); Godinez, 509 U.S. at 402 (rejecting multiple standards in favor of the “Dusky formulation” as the standard for determining competency). While the law is well-settled as to what the proper standard to determine competency, the definition of “rational understanding” remains ambiguous. 64 The Supreme Court has noted that the concept of “rational understanding is difficult to define.” Panetti v. Quarterman, 551 U.S. 930, 959 (2007); see Ferguson, 716 F.3d at 1318 (“The bottom line of the Panetti decision is that there is not yet a well-defined bottom line in this area of the law.”). The Eleventh Circuit concluded in Ferguson that “what Panetti held and clearly establishes” is “that whatever “rational” means in the context of competency to be executed, a court may not “treat … delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted.” Id. at 1337.65 Thus, to find that a defendant’s understanding is rational as opposed to factual, it is not enough to show that the defendant knows facts such as the day of the week or the name of the current President. The language of Dusky indicates that competency requires something more – “[I]t is not enough,” as the Dusky Court admonished, “to find that the defendant is oriented to time and place and has some recollection of events.” 362 U.S. at 402 (internal quotations 64 See Terry A. Maroney, Emotional Competence, “Rational Understanding,” and the Criminal Defendant, 43 AM. CRIM. L. REV. 1375, 1381-85 (2006) (exploring possible meanings of the term “rational understanding”). 65 Some Eleventh Circuit cases have addressed the issue without providing a definition for the term. See e.g., Bundy v. Dugger, 850 F.2d 1402, 1409-10 (11th Cir. 1988) (finding a defendant to have a rational understanding of the proceedings against him where the defendant expressed displeasure at one of the trial judge’s instructions, evaluated some of the evidence against him, and criticized the state’s closing argument for referring to facts not in evidence); James v. Singletary, 995 F.2d 187, 188 (11th Cir. 1993) (finding rational understanding where defendant participated in formulating defense strategy with attorneys). 113 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 114 of 124 omitted). The Court noted that a competent defendant can make a “reasoned choice” among the alternatives available to him when confronted with such crucial questions as whether he should testify, waive a jury trial, cross-examine witnesses, put on a defense, etc. Id. at 397-98. The Court later expounded on the prohibition against subjecting a mentally incompetent person to trial. See Drope, 420 U.S. at 172. In Drope, the Court cited a law review note, Incompetency to Stand Trial, that argued that the Dusky standard can be best understood by viewing the primary purpose of the incompetency rules as safeguarding the accuracy of adjudication and protecting the fairness of the adversarial system. See Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 455, 457-459 (1967). To that end, the law review note suggested that rationality under the Dusky standard requires that a defendant have some ability to confer intelligently, to testify coherently, to follow and evaluate the evidence presented, and have some awareness of the significance of the proceeding and some ability to understand the charges against him, the defenses available to him, and the basic elements of a criminal trial. 81 HARV. L. REV. at 458.66 The court believes that this understanding best approximates what the Supreme Court had in mind regarding the standard for mental competency and will therefore use these criteria in evaluating Merriweather’s rational understanding of the proceedings against him. As already noted, the court finds that the Government has shown by a preponderance of the evidence that Merriweather does not currently suffer from “a mental disease or defect to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). Alternatively, even if 66 81 HARV. L. REV. at 458; see also JUDICIAL CONFERENCE OF THE DISTRICT OF COLUMBIA CIRCUIT, REPORT OF THE COMMITTEE ON PROBLEMS CONNECTED WITH MENTAL EXAMINATION OF THE ACCUSED IN CRIMINAL CASES BEFORE TRIAL 132 (1965); Peter R. Silten & Richard Tullis, Mental Competency in Criminal Proceedings, 28 HASTINGS L. J. 1053, 1058 (1976). 114 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 115 of 124 Merriweather were found to suffer from an unidentified mental disease or defect, the presence of some mental illness does not necessarily make a defendant incompetent to stand trial. See Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995) (“Not every manifestation of mental illness demonstrates incompetence to stand trial . . . neither low intelligence and mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetency to stand trial”); United States v. Hogan, 986 F.2d 1364, 1373 (11th Cir. 1993) (cognitive degeneration due to Alzheimer’s Disease did not render defendant incapable of assisting attorney); see also United States v. Vamos, 797 F.2d 1146, 1150 (2nd Cir. 1986) (“It is well-established that some degree of mental illness cannot be equated with incompetence to stand trial.”); Hall v. United States, 410 F.2d 653, 658 (4th Cir. 1969) (“[T]he presence of some degree of mental illness is not to be equated with incompetence to be sentenced.”). The ultimate question under Dusky is whether a defendant has sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding, and is able to have a rational and factual understanding of the proceedings against him. The Government’s evidence that Merriweather has a factual understanding of the proceedings has not been refuted – the Defense challenge centers on whether Merriweather’s decisionmaking reflects a rational understanding. Here, the preponderance of the evidence shows that Merriweather has both (1) a sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding, and (2) a rational as well as a factual understanding of the proceedings against him. Thus, Merriweather’s functioning has not been impaired to a level below that required by Dusky. 115 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 116 of 124 1. Merriweather has Sufficient Present Ability to Consult with his Lawyers with a Reasonable Degree of Rational Understanding The first prong of the Dusky standard, whether a defendant has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” concerns the ability of a defendant to effectively participate in his defense by communicating effectively with his counsel. See Drope, 420 U.S. at 171-72; Cooper, 517 U.S. at 356-57. It is worth emphasizing that the Dusky standard refers to the ability of a defendant to communicate with his attorneys, not his willingness to communicate with his attorney. Being able -- but unwilling -- to communicate with one’s attorney does not make a defendant incompetent to stand trial. See, e.g., 40 Am. Jur. Proof of Facts 2d 171 (1984), citing Ferry v. State, 453 N.E.2d 207, 212 (Ind. 1983). Merriweather’s attorneys argue that Merriweather ought to be found incompetent under the first prong because “Merriweather is not engaged in meaningful communication with his counsel.” (Doc. 156 at 44). In making this argument, the Defense correctly identifies the issue to hinge on whether Merriweather deliberately refused to communicate or was unable to communicate due to a mental disease or defect. (Id. at 44-45). However, in making these arguments, the Defense fails to account for this critical distinction, arguing simply that Merriweather’s communication with his counsel so far has been “insufficient to protect and exercise his Constitutional rights.” (Id. at 45).67 67 Along the way, Merriweather’s attorneys have argued that the question of whether Merriweather’s lack of communication was deliberate or involuntary may be resolved entirely by ascertaining that Merriweather has a mental illness. (Doc. 156 at 44-45). The Defense does not focus on this argument much though, noting that “such analysis may be somewhat superfluous” when compared with the later argument that Merriweather’s communication with his attorneys has been objectively lacking. However, the problem with this premise is not that it is superfluous, but that it is incorrect; merely having a mental illness does not necessarily render a defendant incompetent. See Medina, 59 F.3d at 1107; Hall 410 F.2d at 658. 116 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 117 of 124 This argument misses the target. The Defense has not shown that Merriweather cannot speak with his attorneys, but only that he will not speak with his attorneys (except, of course, when he desires to do so). When Merriweather refused to speak with Dr. Merikangas in June 2011, he was not unresponsive to his environment; Dr. Merikangas testified that Merriweather waived food away. (Doc. 147, Comp. Hrg. Vol. VII at 1176). When Dr. Dudley testified to Merriweather’s lack of communication, he indicated that the only communication he was able to elicit from Merriweather during his June 2011 visit came in the form of “the hand signals and the verbal refusal to speak with him.” (Doc. 147, Comp. Hrg. Vol. VI at 946). While these experts were apparently seeking to express the view that Merriweather was unable to communicate, that assertion is actually undermined by their own testimony. Waiving away a food tray when it was offered shows that Merriweather is aware of his surroundings and able to respond to achieve a desired result (i.e., sending the food away). Similarly, using hand signals and verbally expressing the desire not to see someone evinces Merriweather’s ability to communicate his desire not to see that person. Moreover, the conversation that took place the next day among Merriweather, Jack Earley, and Merriweather’s attorneys belies the assertion that Merriweather is unable to communicate with his attorneys with a reasonable degree of rational understanding. As Earley, Jaffe, and Drennan were leaving the Shelby County Jail, Merriweather told a guard to call them back because he recognized Jaffe and wanted to talk with him. (Doc. 147, Comp. Hrg. Vol. V at 822). The conversation lasted for hours. (Id. at 822-23). Earley testified that Merriweather’s speech during this conversation seemed organized. (Id. at 838). Although Defense counsel argue that Merriweather is not able to consult his counsel, he has consulted his lawyers when he desired to speak with them. Merriweather’s refusal to speak with members of the Defense team 117 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 118 of 124 can therefore be best understood to show unwillingness, not a lack of ability to do so. As the Eleventh Circuit has noted, even if a criminal defendant is “at times uncommunicative with his counsel, periods of uncooperativeness alone are insufficient to support a finding of incompetence.” United States v. Jones, 200 F. App’x 915, 921 (11th Cir. 2006).68 The Defense may protest that, while the evidence demonstrates that Merriweather is able to consult with his counsel, it does not establish that Merriweather is unable to consult with his lawyers with a reasonable degree of rational understanding. Because this requires an inquiry into whether Merriweather has rational understanding of the proceedings against him, the court turns now to the second prong of Dusky. 2. Merriweather has a Rational as Well as a Factual Understanding of the Proceedings Against Him Dusky requires that a defendant have both a rational as well as a factual understanding of the proceedings against him. 362 U.S. at 402. Subsequent cases have clarified that the standard does not require that a defendant actually have a present rational and factual understanding of the proceedings against him, but only that he is capable of having a rational and factual understanding of the proceedings against him. Cooper v. Oklahoma, , 368 (1996) (“The deep roots and fundamental character of the defendant’s right not to stand trial when it is more likely than not that he lacks the capacity to understand the nature of the proceedings against him or to communicate effectively with counsel mandate constitutional protection.”); Godinez v. Moran, , 401 (1993) (“Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to 68 Although Jones is an unpublished decision, the quoted language is a legal statement that is true and appropriate for this issue. 118 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 119 of 124 assist counsel.”); Drope v. Missouri, , 171 (1975) (“A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”). The Government has shown by a preponderance of the evidence that Merriweather is capable of having both a rational and a factual understanding of the proceedings against him. a. Merriweather has a Factual Understanding of the Proceedings Against Him The evidence leaves little doubt that Merriweather has a factual understanding of the proceedings against him. In his interviews with Dr. Pietz, Merriweather provided clear, detailed, and coherent recollections of the robbery. (Doc. 24 at 16). Merriweather correctly identified the roles of the judge, the prosecutor, and the Defense counsel. (Id.). He knew that a jury of 12-14 jurors would be selected from his community. (Id.). He was aware of the insanity defense, understood the meaning of a guilty plea, and told Dr. Pietz that “a defendant should discuss the options [sic] of a plea bargain with his attorney.” (Id.). During his conversation with his lawyers in the presence of Mr. Earley, Merriweather told his lawyers that “the judge was the one that was going to make the ultimate decisions in the case, and the judge didn’t need to hear from [D]efense lawyers or a [D]efense doctor, especially since he already had doctors that he could rely upon.” (Doc. 146, Comp. Hrg. Vol. V at 833). While Merriweather’s understanding of the facts may reflect a cynical outlook, it is nonetheless connected to reality. b. Merriweather Has a Rational Understanding of the Proceedings Against Him As established earlier, to determine whether Merriweather has a rational understanding of the proceedings against him, the court considers whether Merriweather has some ability to (1) confer intelligently and testify coherently, (2) follow and evaluate the evidence presented, (3) 119 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 120 of 124 understand the significance of the proceeding, and (4) understand the charges against him, the defenses available to him, and the basic elements of a criminal trial. (1) Merriweather Has the Ability to Confer Intelligently and Testify Coherently The evidence has demonstrated that Merriweather has had the ability to communicate intelligently and coherently with psychological examiners and correctional officers over the years, and has that ability at present. The transcript from Merriweather’s initial interview at the Jefferson County Jail shows that Merriweather had no difficulty communicating intelligently and coherently with investigators on the day after the robbery. (Def. Ex. 16). During his evaluations at MCFP Springfield, Dr. Pietz found Merriweather’s speech was rational and coherent, and that he would pause to think about what he wanted to say. (Doc. 142, Comp. Hrg. Vol. I at 27, 54). Officer Singleton, a corrections officer at FMC Butner, noted that he was able to have normal communications with Merriweather without difficulty. (Doc. 150, Comp. Hrg. Vol. VIII at 1268). Dr. Berger testified that Merriweather should be able to consult with his attorneys since he could certainly communicate reasonably with himself, nurses, and correctional officers. (Doc. 145, Comp. Hrg. Vol. IV at 621). Dr. Gualtieri testified that Merriweather maintained appropriate behavior and communicated with an attentive and pleasant demeanor when engaged in small talk, though noted that Merriweather could become evasive when he wanted to. (Doc. 144, Comp. Hrg. Vol. III at 401-02). Officer Laatsch, a corrections officer at the Shelby County Sheriff’s Office, indicated that he had no problems understanding Merriweather. (Doc. 148, Comp. Hrg. Vol. VII at 1229). Merriweather’s ability to communicate intelligently and coherently was also clearly evident when he engaged in successful negotiations with Director Shirley to avoid being force-fed. (Id. at 1233-34). While Merriweather refused to meet with Drs. 120 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 121 of 124 Merikangas or Dudley, he conferred with Mr. Earley and his attorneys the next day with sufficient intelligence and coherence that Mr. Earley testified that he recognized that Merriweather’s speech at least seemed organized to himself.69 (Doc. 146, Comp. Hrg. Vol. V at 838). The evidence clearly establishes that Merriweather is able to confer intelligently and coherently. (2) Merriweather Has the Ability to Follow and Evaluate the Evidence Presented The record also shows that Merriweather does have the ability to follow and evaluate the evidence in his trial because his behavior, especially when he attempts to be evasive, reveals a rational, manipulative mind. During his interview with Jefferson County Investigators, Merriweather frequently paused to consider his answers and repeatedly tried to stall the interview. (Def. Ex. 16 at 12, 18, 25). During his interviews with Dr. Pietz, Merriweather would take time to think through his responses (Doc. 142, Comp. Hrg. Vol. I at 46, 57) and recognized when to change them when they were not eliciting the response that he wanted, such as when he changed his recollection of the robbery. (Id. at 35). Merriweather also demonstrated that he is able to predict the path of a conversation and react accordingly, which Dr. Gualtieri noticed when Merriweather would become more evasive when the conversation turned to topics relevant to the instant proceedings against him. (Doc. 144, Comp. Hrg. Vol. III at 404-06). Further evidence of Merriweather’s ability to follow and evaluate facts around him can be found in the activities Merriweather performed in his spare time. While at FMC Butner, Merriweather would read novels. (Doc. 150, Comp. Hrg. Vol. VIII at 1269). Drawing from his electrical engineering background, Merriweather fixed a radio so that he could listen to 69 The Dusky standard, as commentators have noted, does not require that a defendant have a high level of ability or performance. See 81 HARV. L. REV. at 458. 121 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 122 of 124 broadcasts. (Doc. 146, Comp. Hrg. Vol. V at 614). These are not activities associated with people divorced from reality. Even more revealing was Merriweather’s conversation with his attorneys in the presence of Mr. Earley. According to Mr. Earley, Merriweather told his lawyers that he believed that “the judge was the one that was going to make the ultimate decisions in the case, and the judge didn’t need to hear from [D]efense lawyers or a [D]efense doctor, especially since he already had doctors that he could rely upon.” (Doc. 146, Comp. Hrg. Vol. V at 833). Merriweather’s comment, though untrue (intentionally or not), demonstrates that Merriweather is able to connect facts (he knows about the expert witnesses testifying in the case and can distinguish between doctors and lawyers retained by the Defense from the medical examiners assigned to conduct the competency evaluation) and draw an inference from the evidence. Taken together, these events reveal that Merriweather is capable of following and evaluating evidence. (3) Merriweather is Aware of the Significance of this Proceeding Merriweather has acknowledged to Dr. Pietz that he is aware that the death penalty may be imposed in his case. (Doc. 24 at 16). His awareness of the nature and the implications of these proceedings is similarly evident in the way that he responded to Judge Ott’s order authorizing the Shelby County Jail to forcibly feed and bathe him. His immediate transformation -- taking showers and eating regularly without incident after being confronted with Judge Ott’s orders -- evidences his ability to appreciate his situation. (4) Merriweather Has the Ability to Understand the Charges Against Him, the Defenses Available to Him, and the Basic Elements of a Criminal Trial During Dr. Pietz’s interview of Merriweather, it became apparent that Merriweather has an unusually comprehensive understanding of the criminal legal process. Merriweather 122 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 123 of 124 understood the charges against him and provided a written description of the robbery from memory. (Doc. 24 at 16). He understood possible pleas and described the insanity defense. (Id.). He correctly identified court personnel and proceedings. (Id.). Dr. Pietz noted that Merriweather had not only done “exceptionally well” on the ECST-R, he had performed better than one of her students. (Doc. 142, Comp. Hrg. Vol. I at 59-60). Given his outstanding performance, Merriweather clearly demonstrated his ability to understand the charges against him, the defenses available to him, and the basic elements of the criminal trial. V. Conclusion After thoroughly reviewing all available evidence, the court remains of the opinion that Merriweather is competent to stand trial under the standards set forth in 18 U.S.C. § 4241. The record makes it clear that Merriweather has a comprehensive understanding of the criminal trial proceedings: he understands the charges against him; he has the ability to discuss his various options with his lawyers; he can consider options available to him; and he suffers no memory impairment that would make him unable to assist in his defense. The Government has thus met its burden to show that Merriweather does not currently suffer from a mental disease or defect that renders him incompetent under Dusky. For these reasons, the court finds by a preponderance of the evidence that Defendant Merriweather is competent to stand trial. Accordingly, a trial date will be set by future order. Therefore, Defendant’s motion requesting that the court find Defendant incompetent to stand trial (Doc. 330) is due to be denied. A separate order consistent with this memorandum opinion will be entered. 123 Case 2:07-cr-00243-RDP-JEO Document 604 Filed 11/05/14 Page 124 of 124 DONE and ORDERED this November 5, 2014. _________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE 124
Ask CiteLaw's AI Navigator anything about this judge practice, verify citations, and research related authorities. Sign up for CiteLaw free today to get started.
