Plaintiff C. Jay Smith is a transgender woman who has been housed in men’s prisons for decades. The facts at issue in this case pertain to Plaintiff’s incarceration at San Quentin State Prison from 2013 to 2019, though she has been housed at the California Medical Facility in Vacaville since June 2019.
Plaintiff filed a motion to exclude the testimony of Defendants’ expert, Captain Rusty Hickethier.
Prison Management Expert Witness
Rusty Hickethier is currently a Captain (A) and PREA Coordinator for California Department of Corrections and Rehabilitation. Prior to this role, he was a Correctional Lieutenant working for the PREA Compliance Unit for CDCR Headquarters, assisting with ensuring the agency maintains compliance with the Federal Standards as well as assisting with DOJ PREA Audits.
Previously, he was a Correctional Sergeant at CSP-Sacramento which houses primarily Level IV maximum and high security incarcerated person as well as those requiring specialized mental health programming and high-risk medical concerns. Hickethier has over 17 years of service with CDCR.
Discussion by the Court
Plaintiff stated that Defendants first designated Hickethier as a Federal Rule of Civil Procedure 30(b)(6) deponent, then disclosed him as a non-retained expert, and finally as a retained rebuttal expert. Plaintiffs urged that he is not a proper expert and should not be allowed to testify at trial.
In response, Defendants have confirmed that they do not oppose Plaintiff’s motion to exclude Hickethier as a non-retained expert witness. The Court therefore granted the motion on this basis. The parties disputed, however, whether to exclude Hickethier as a rebuttal expert witness.
Plaintiff argued that Hickethier cannot offer an opinion that San Quentin was compliant with Prison Rape Elimination Act (“PREA”) requirements because the evidence in the record—including Captain Hickethier’s 30(b)(6) testimony—establishes that it was not. Plaintiff also urged that, although not prohibited, it would be confusing to the jury to have someone testifying as both a 30(b)(6) witness and an expert.
Defendants did not address Plaintiff’s arguments directly. Instead, they responded that to the extent Plaintiff’s expert is allowed to testify about PREA, they should be allowed to call Hickethier, a member of CDCR’s PREA Compliance Unit, as a rebuttal expert witness.
Analysis
The Court has concerns with the cursory manner in which Defendants have responded to this motion. And it is not clear whether, and to what extent, Captain Hickethier may try to contradict his own prior 30(b)(6) testimony. Nevertheless, the Court is not inclined to fashion an order based on suppositions about what the evidence at trial may show, and how Captain Hickethier may rely on that evidence, in fashioning any rebuttal testimony.
Plaintiff may of course challenge any of Captain Hickethier’s testimony through vigorous cross-examination if he testifies, and the Court will have the opportunity to evaluate any objections in context. Additionally, if this case proceeds to trial, the Court will consider holding a voir dire hearing outside the presence of the jury to confirm in advance that experts, including Captain Hickethier, will only offer reliable and relevant opinions.
Held
The Court granted the motion to exclude Captain Rusty Hickethier’s testimony as a non-retained expert witness, but denied the motion to exclude his testimony as a rebuttal expert.
Key Takeaway:
The Court finds it inappropriate to formulate an order predicated on suppositions regarding the evidence to be presented at trial and Captain Hickethier’s potential reliance on that evidence in his rebuttal testimony.
Case Details:
| Case Caption: | Smith V. Diaz Et Al |
| Docket Number: | 4:20cv4335 |
| Court: | United States District Court, California Northern |
| Order Date: | March 31, 2025 |
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