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Correctional facilities expert may testify in death suit

Where correctional officers were sued for their alleged role in the death of a detainee, an expert on correctional facilities may testify about the standard of care and his opinion that the officers breached the duties they owed to the detainee.


Emmanuel Bynum and Joel Guy are correctional officers at the correctional facility where Robert Lee Boley was a detainee at the time of his death. Plaintiff alleges the correctional officers knew or should have known that Boley was in need of acute care for a serious medical condition, and failed to arrange for that care until it was too late.

Anthony Callisto Jr., a correctional expert, provided a written report and deposition testimony on behalf of plaintiff. The correctional officers challenge Callisto’s opinions.


The correctional officers contend that Callisto’s opinions rely on speculative assumptions which are not supported by evidence in the record. While the correctional officers contend that the facts proffered by plaintiff are insufficient to support Callisto’s opinions, the court disagrees. Plaintiff’s medical expert establishes that Boley’s medical condition would have caused him significant pain, and a reasonable inference can be drawn that such severe pain would have manifested itself in Boley’s countenance and conduct, and been apparent to others if they had been appropriately monitoring him. Other inmates offered sworn declarations as to Boley’s obvious pain and discomfort and his repeated complaints thereof.

Moreover, there is a vigorous dispute as to whether any correctional officers monitored Boley regularly during the night, regardless of what intervals were required by the standard of care. Consequently, Callisto’s opinions are not speculative but rather rely on facts in the record, albeit disputed, and reasonable inferences drawn therefrom.

Standard of care

The correctional officers challenge the reliability of Callisto’s opinion that the standard of care required corrections officials to observe or monitor the safety and well-being of inmates every 3o minutes generally, and every 15 minutes when an inmate is determined to be in some manner of distress. The court finds that Callisto sufficiently explained the basis for his opinion that the standard of care required Boley to be monitored every 15 minutes.

Although the American Correctional Association and the Virginia Department of Corrections may provide a longer interval as the appropriate standard of care generally, Callisto has sufficiently established “how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts.”

Jury’s role

The correctional officers contend that Callisto should not be permitted to testify that they “had constitutional, statutory, and common law duties and . . . that [they] breached their duties.” They argue that such testimony usurps the role of the court to assess the law and the jury to apply the law to the facts, and that Callisto’s proposed testimony “is replete with legal conclusions.”

The correctional officers’ arguments are without merit. The issue in this case with respect to the correctional officers is whether their conduct violated their duty to Boley, as a detainee. Proper operation and management of a correctional institution, including the duties owed by a reasonable correctional officer, not just a reasonable person, is well beyond the province of a lay jury. And, as plaintiff correctly notes, Rule 704(a) provides that “[a]n opinion is not objectionable just because it embraces an ultimate issue.”

Once the standard of care has been identified, is still the province of the expert to explain whether it has been met or breached. Doing so does not usurp the role of the court because Callisto’s opinions all are directed towards the standard of care and the correctional officers’ purported breaches thereof. Simply stated, they are permissible opinions that the correctional officers did not do what the standard of care required of them, not legal conclusions that they committed certain torts or violated the Constitution.

Other duties

Callisto’s report discusses certain duties and standards of care that the correctional officers claim do not relate to any issues in this case. They seek to have any such testimony excluded on the grounds that such opinions are not relevant and thus unhelpful to the jury. The court finds that Callisto’s proposed testimony about the overall duties of correctional officers and the standards applicable to them might very well be relevant to a jury’s understanding of their abilities, capabilities and the expectations Deerfield Correctional Center had of them, by placing their alleged breaches in context.

Bynum and Guy’s motion to exclude expert testimony of Anthony Callisto denied.

Boley v. Armor Correctional Health Services Inc., Case No. 2:21-cv-197, Aug. 4, 2022. EDVA at Norfolk (Leonard). VLW 022-3-341. 14 pp.