The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
In this over 30-year old case concerning the constitutional rights of developmentally-disabled individuals in the District of Columbia who were formerly institutionalized at Forest Haven, the Court has before it a Report and Recommendation from the Special Masters, concluding that as of December 2008, defendants remained in "serious noncompliance" with the Court's remedial orders and recommending the appointment of an Independent Compliance Administrator to ensure that they achieve compliance forthwith. (Special Masters' Report and Recommendation Regarding A Remedy For Defendants' Noncompliance With Court Orders at 3, Aug. 14, 2009 ["2009 Special Masters' Report"].) Defendants have filed objections to the Report's factual findings and conclusions of law, which the Court will address herein. Defendants' objections to the recommended remedy and the Court's ultimate decision as to remedy will be the subject of a separate opinion.
In a recent opinion, the Court summarized the critical facts and lengthy procedural history of this litigation. Evans v. Fenty, Civil Action No. 76-0293, 2010 WL 1337641 (D.D.C. Apr. 7. 2010) ["April 2010 Opinion"].*fn1 To avoid unnecessary repetition, the Court will rely on this earlier opinion and will limit itself to an abbreviated summary of the background of this case, as it relates to the issues presented herein.
In 1978, this Court found that the conditions in which plaintiffs were living violated their constitutional rights and ordered defendants to take a series of actions to remedy those violations. Id. at *2. In March 2007, many years and many supplemental orders later, see id. at *2-*8, the Court found that defendants were in "systemic, continuous, and serious noncompliance" with the Court's prior Orders in three critical areas: health, safety and welfare. Id. at *9 (quoting Evans v. Fenty, 480 F. Supp. 2d 280, 325 (D.D.C. 2007) ["March 2007 Liability Opinion"]). Following the issuance of this opinion, the Special Masters were directed to "conduct proceedings relating to the necessity for remedial relief, including, as needed, discovery, hearings, mediation and settlement negotiations" and, "[a]t the conclusion of such proceedings . . . [to] issue a report to the Court making recommended findings of fact, conclusions of law and recommendations regarding appropriate remedies." Id. at *11 (quoting Supp. Order of Reference, May 3, 2007).
The Special Masters issued their final Report and Recommendation in August 2009, concluding that, as of December 2008, "plaintiffs had proved by clear and convincing evidence that defendants continue to be in serious noncompliance with critical provisions of outstanding court orders" addressing plaintiffs' constitutional rights to health, safety and welfare, and recommending the appointment of an "Independent Compliance Administrator" to ensure that the defendants, within a reasonable period of time, achieve compliance with these orders and bring an end to this more than 30-year old litigation. (2009 Special Masters' Report at 3; see also April 2010 Opinion, 2010 WL 1337641, at *14-*17 (summarizing Special Masters' factual findings and conclusions of law).) Pursuant to the Supplemental Order of Reference, both parties were permitted to "file objections to (or file a motion to adopt or to modify)" the 2009 Special Masters Report, but "[f]ailure to timely object" would be "deemed a waiver of any objection." (Supp. Order of Reference at 4.)
Defendants filed a limited number of objections to the factual findings and conclusions of law in the 2009 Special Masters' Report. (See Mem. in Support of Defs.' Renewed Mot. to Vacate Consent Orders and To Dismiss Action at 57-60 & Ex. 23, Oct. 7, 2009 ["Defs.' Mem."]; Defs.' Consolidated Reply in Support of Mot. to Vacate Consent Orders and To Dismiss Action at 18-23, Dec. 2, 2009 ["Defs.' Reply"].)*fn2 The defendants devoted only three pages of their brief to their objections, wherein they identified the following three objections: (1) that the Special Masters "utilized the incorrect legal standard" in light of the Supreme Court's decision in Horne v. Flores, 125 S.Ct. 2579 (2009) (Defs.' Mem. at 57-58); (2) that the Special Masters erroneously relied on the Court Monitor's Reports to make "systemic conclusions" (id. at 58-59); and (3) that the Special Masters erroneously rejected evidence regarding "current progress." (Id. at 60.) In an exhibit attached to their brief, defendants offer "additional objections" to those identified in their memorandum (Defs.' Mem., Ex. 23),*fn3 including that the Special Masters (1) erroneously relied on a report issued by the District of Columbia Health Resources Partnership in December 2007 ("DCHRP Report") (id., Ex. 23, ¶ 8); (2) erroneously struck the October 8, 2008 Declaration of Kathy Sawyer (id., Ex. 23, ¶ 9); and (3) in addressing the issue of bad faith, erroneously cite to an exhibit offered by plaintiffs but stricken on defendants' motion. (Id., Ex. 23, ¶ 10.) In Exhibit 23, defendants also elaborate on their objections to specific findings based on both the record before the Special Masters and "current evidence." (Id., Ex. 23, ¶¶ 20-75.) Agreeing with the Special Masters' Report, plaintiffs ask the Court to reject defendants' objections and affirm and adopt the Report. (Pls.' Resp. to Defs.' Objections to the Special Masters' Report & Recommendation, and Opp'n to their Mot. to Vacate All Prior Orders and Dismiss the Case at 4-16, Nov. 6, 2009 ["Pls.' Opp'n"].)
The Court heard oral argument on defendants' objections on December 17-18, 2009. During the argument, the Court directed defendants' counsel to address, in addition to its legal argument, each and every specific objection that it wanted the Court to consider. (12/17/09 Tr. at 120.)*fn4 Counsel for the District limited her objections to (1) the Special Masters' dismissal of defendants' expert, Dr. John Sumner (id.); (2) the Special Masters' reliance on the Court Monitor's Reports (id. at 127); (3) the admission of the DCHRP Report (id. at 120); and (4) the exclusion of the Sawyer declaration. (Id. at 122-24).
Accordingly, defendants' objections raise the following questions:
(1) did the Special Masters apply the wrong legal standard (Section II.A);
(2) did the Special Masters err by relying on the Court Monitor's Reports and rejecting the testimony of Dr. Sumner (Section II.B, infra);
(3) did the Special Masters err by excluding the October 8, 2008 Sawyer Declaration (Section II.C);
(4) did the Special Masters err by relying on the December 2007 DCHRP Report (Section II.D);
(5) did the Special Masters' err by citing to a stricken exhibit (Section II.E); and
(6) does current evidence render any of the Special Masters' findings or conclusions erroneous (Section II.F)? Each will be analyzed seriatim.
As set forth in the Supplemental Order of Reference, the Court reviews de novo "all objections to the Masters' proposed findings of fact" and "all objections to conclusions of law vvvmade or recommended by the Masters" and reviews for abuse of discretion the dispostion of any procedural issues. (Supp. Order of Reference at 4.)
II. DEFENDANTS' OBJECTIONS
Defendants' first objection to the 2009 Special Masters Report is that the Special Masters applied the wrong legal standard. They assert that "the Special Masters employ the very type of logic that the Supreme Court repudiated in Horne: namely they focus narrowly on whether the District has complied with the specifics of particular court orders, to the exclusion of any analysis of whether the District 'is now fulfilling its [legal] obligation by new means.'" (Defs.' Mem. at 57 (quoting Horne, 129 S.Ct. at 2589)). Thus, they contend, the Special Masters' "conclusions simply cannot be utilized." (Id. at 58.)
Defendants based their motion to vacate all existing orders on this same legal argument, which the Court has already rejected. See April 2010 Opinion, 2010 WL 1337641, at *33-*38 ("as long as the obligations voluntarily assumed by defendants flow from constitutional violations, this Court may not rewrite the existing consent orders so as to reduce defendants' promise to some ill-defined constitutional floor"). Accordingly, the Special Masters properly focused on the task they were given -- to determine whether the defendants remained in noncompliance with existing court orders.
B. Use of Court Monitor Reports as Evidence
Defendants also objected to the Special Masters' conclusion that the Court Monitor's reports are "reliable evidence of the defendants' overall performance with respect to their obligations under court orders." (2009 Special Masters' Report at 18.) Defendants challenge this conclusion on the ground that, according to their expert, the information in the reports is "not based on statistically significant samples" and is not "benchmarked against what may be expected to be normal across the country" (Defs.' Mem. at 58-59; 12/11/08 Trial Tr. at 375-79.) The relevant facts are as follows.
Pursuant to the 1978 Consent Order, defendants hired an expert, then called a Developmental Disabilities Professional (DDP), to assist "in coordinating and carrying out the implementation of the provisions of [the 1978 Order]." See Evans, 459 F. ...