The Estate of Ruben Nunez et al v. County of et al

Filing 414

ORDER Granting Plaintiffs' Motion to Reconsider. It is further ordered that the parties re-submit their proposed joint pretrial order and their proposed jury instructions to include Counts 5 and 6 and punitive damages against CPMG within 7 days of this order. As before, the parties proposed jury instructions must comply with the Courts prior order as to format, and the parties are ordered to again meet and confer about the additional jury instructions before submitting them to the Court. Signed by Judge Roger T. Benitez on 5/17/2019.(sjt)

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10423 Page 1 of 16

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13

THE ESTATE OF RUBEN NUNEZ by
and through its successor-in-interest
LYDIA NUNEZ, ALBERT NUNEZ, and
LYDIA NUNEZ,

Case No.: 3:16-cv-01412-BEN-MDD
ORDER GRANTING PLAINTIFFS’
MOTION TO RECONSIDER
[Doc. 392]

Plaintiffs,

14
15

v.

16

COUNTY OF SAN DIEGO, et al,

17

Defendants.

18
19

Pending before the Court is Plaintiffs’ motion to reconsider the Court’s summary

20

judgment order as to Defendant Correctional Physicians Medical Group (“CPMG”) in light

21

of newly discovered evidence. Because Plaintiffs’ newly discovered evidence raises

22

genuine issues of material fact, the motion is GRANTED, and Plaintiffs’ claims for failure

23

to train and failure to supervise under 42 U.S.C. § 1983, as well as Plaintiffs’ prayer for

24

punitive damages, are hereby reinstated against CPMG.

25

BACKGROUND

26

On January 2, 2019, through pleadings and exhibits filed in another case, Nishimoto

27

v. County of San Diego, et al., 16-cv-01974-BEN-LL, Plaintiffs became aware of various

28

documents that Defendants had not produced, including correspondence between the
1
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10424 Page 2 of 16

1

County of San Diego and CPMG regarding Mr. Nunez. In response, on January 7, 2019,

2

Plaintiffs moved the Court to vacate under Federal Rule of Civil Procedure 54(b) the

3

portions of its November 5, 2018 summary judgment order, [Doc. 322], which granted

4

CPMG’s motion for summary judgment on Counts 5 and 6 and Plaintiffs’ prayer for

5

punitive damages. Plaintiffs further requested that the Court refer the motion to the

6

Magistrate Judge for an evidentiary hearing to determine the scope of withheld evidence

7

and to determine what sanctions, if any, were appropriate. Subsequently, Defendant

8

CPMG produced approximately 100 pages of inadvertently withheld discovery.

9

The Court denied Plaintiffs’ motion to vacate but ordered that “Plaintiffs may seek

10

leave to re-assert a motion to vacate later, if substantial relevant evidence is newly

11

discovered.” [Doc. 343.] The Court did, however, grant Plaintiffs’ request for a referral

12

to the Magistrate Judge, who found the late-produced documents were not withheld

13

willfully or in bad faith. [Doc. 374.] Nonetheless, the Magistrate Judge determined there

14

was time for corrective action and permitted Plaintiffs to depose Dr. Mannis, Dr. Rao, and

15

Dr. Badre about the contents of the newly discovered evidence. [Doc. 374.] Following

16

those depositions, Plaintiffs again move to vacate the Court’s summary judgment order as

17

to CPMG, arguing that substantial newly discovered evidence regarding CPMG’s failure

18

to train and supervise creates genuine issues of material fact as to Counts 5 and 6 and

19

Plaintiffs’ prayer for punitive damages.

20

DISCUSSION

21

In its November 5, 2018 order, the Court granted summary judgment in favor of

22

CPMG on Count 5 for Failure to Train because of a lack of evidence, finding “the

23

connection between CPMG’s alleged failure to train and the alleged constitutional

24

violations are both unsupported and are far too tenuous to satisfy the high Monell standard.”

25

[Doc. 322, p. 31.] As to Count 6 for Failure to Supervise and Discipline, the Court again

26

found Plaintiffs’ evidence was “virtually nonexistent” and that Plaintiffs “ma[d]e a variety

27

of unsupported arguments based on assumptions, rather than facts.” [Id. at 31.] For

28

example, “Plaintiffs rel[ied] on an alleged ‘prior incident in which Naranjo failed to enter
2
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10425 Page 3 of 16

1

information in JIMS and failed to coordinate a patient’s care with the nursing staff,” but

2

Plaintiffs failed to support that allegation with any evidence. [Id.] Regarding Count 10’s

3

prayer for punitive damages as to the state law negligence claim, the Court held that based

4

on the minimal evidence offered, no reasonable jury could find CPMG’s conduct,

5

“however negligent, rose to a level of sufficient deliberate disregard . . . that their conduct

6

may be called willful or wanton.” [Id. at 37.] At present, Plaintiffs’ Count 10 for

7

negligence is the only remaining claim against CPMG, which is set for a jury trial on June

8

4, 2019.

9

A. Reconsideration Is Warranted

10

Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of

11

finality and conservation of judicial resources.” Kona Enterprises, Inc. v. Estate of Bishop,

12

229 F.3d 877, 890 (9th Cir. 2000). Indeed, “a motion for reconsideration should not be

13

granted, absent highly unusual circumstances, unless the district court is presented with

14

newly discovered evidence, committed clear error, or if there is an intervening change in

15

the controlling law.” Id. “A motion for reconsideration may not be used to raise arguments

16

or present evidence for the first time when they could reasonably have been raised earlier

17

in the litigation.” Life Techs. Corp. v. Illumina, Inc., 2012 WL 10933209, at *1 (S.D. Cal.

18

June 11, 2012) (quoting Kona Enters., 229 F.3d at 890)). Moreover, motions to reconsider

19

are not a platform to relitigate arguments and facts previously considered and rejected. See

20

Harrison v. Sofamor/Danek Grp., Inc., 1998 WL 1166044, at *3 (S.D. Cal. Sept. 15, 1998).

21

This is one of those unusual cases. Here, the Court is satisfied that the evidence

22

proffered by Plaintiffs is newly discovered and could not reasonably have been discovered

23

earlier. CPMG does not argue otherwise. Indeed, Plaintiffs properly requested the late-

24

produced evidence, which was both discoverable and inadvertently withheld until after the

25

Court issued its summary judgment order. The record reflects that Plaintiffs relied upon

26

CPMG’s discovery responses that all such evidence had been produced. Thus, the Court

27

cannot find that Plaintiffs reasonably could have known of the evidence earlier.

28
3
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10426 Page 4 of 16

1

B. The Newly Discovered Evidence Raises Genuine Issues of Material Fact

2

The Court next evaluates whether Plaintiffs’ newly discovered evidence warrants

3

vacating the Court’s summary judgment order in favor of CPMG.

4

1. Evidentiary Objections1

5

The Court considers the parties’ evidentiary objections before turning to the

6

undisputed facts. CPMG objects to Dr. Gage’s supplemental expert report, arguing (1) it

7

has not been properly authenticated through an affidavit and (2) Dr. Gage’s opinion relies

8

upon inadmissible evidence in the form of CPMG’s subsequent remedial measures. In

9

response to CPMG’s first argument, Plaintiffs submitted Dr. Gage’s affidavit to

10

authenticate his supplemental expert report, which is sworn under penalty of perjury and

11

offers information reflecting his competence to offer his expert opinions. [Doc. 401-2.]

12

The Court is satisfied that Plaintiffs’ subsequently filed sworn statements adequately

13

remedy the procedural deficiencies of Dr. Gage’s report. See, e.g., Liebling v. Novartis

14

Pharm. Corp., 2014 WL 12576619, at *2 (C.D. Cal. Mar. 24, 2014) (“Courts have held,

15

however, that a party can ‘cure’ the defect of an unsworn expert’s report by proffering the

16

sworn deposition or declaration of the expert.”). In addition, the Court finds Dr. Gage

17

timely supplemented his expert report, having done so more than 30 days before trial.

18

Next, CPMG argues Dr. Gage’s opinions are inadmissible because they rely upon

19

“subsequent remedial measures,” as prohibited by Federal Rule of Evidence 407. In a

20

related argument, CPMG additionally objects to “the majority of” Plaintiffs’ newly

21

discovered evidence as constituting inadmissible subsequent remedial measures. [Doc.

22

398, p. 21.] It is true that “[w]hen measures are taken that would have made an earlier

23

injury or harm less likely to occur, evidence of the subsequent measures is not admissible

24

to prove” either “negligence” or “culpable conduct.” Fed. R. Evid. 407. Contrary to

25
26
27
28

As to CPMG’s request that the Court take judicial notice of the pleadings and its
prior Orders, the request is GRANTED. See Shuttlesworth v. Birmingham, 394 U.S. 147,
157 (1969) (A court is permitted to take judicial notice of its own court records and files.).
1

4
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10427 Page 5 of 16

1

CPMG’s argument, however, internal quality assurance discussions and peer review used

2

to determine the necessity of implementing subsequent remedial measures are not,

3

themselves, “subsequent remedial measures” excluded by Fed. R. Evid. 407. Put another

4

way, a defendant’s internal investigations and reviews might constitute the initial step

5

toward identifying the need for particular remedial action, but “they are not themselves

6

excluded under Rule 407.” Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1103

7

(D. Or. 2013) (“By its terms, this rule is limited to measures that would have made the

8

harm less likely to occur; it does not extend to post-incident investigations into what did

9

occur.”).2 Id. Accordingly, CPMG’s objections on these grounds are OVERRULED.3

10

2. Factual Background4

11

The Court assumes familiarity with the facts of this case. On September 4, 2014,

12

CPMG contracted with the County to “provide psychiatric clinical services which include

13

but [were] not limited to initial psychiatric/medical evaluation, diagnosis, treatment,

14

emergency medication orders, medication evaluation and prescription.” [Ex. 1 at p. 22.]

15

Dr. Steven Mannis is the sole owner of CPMG. Dr. Nicholas Badre became the “Lead

16

Physician” at the Central Jail one day after completing his residency. Dr. Sanjay Rao was

17
18
19
20
21
22
23
24
25
26
27
28

2

The Court need not address the remaining argument about evidence concerning the
removal of a psychiatrist, Dr. B, because it does not rely upon that evidence in this order.
3
Further, to the extent CPMG again asserts California’s peer review privilege, the
Court again finds that federal privilege law, not state privilege law, governs here. As
Magistrate Judge Dembin held, “[The self-criticial analysis privilege] is not recognized by
the Ninth Circuit in this context of the instant case . . . State privilege law applies to purely
state law claims brought in federal court pursuant to diversity jurisdiction; however, state
law claims that are pendent to federal question cases are governed by federal privilege
law.” [Doc. 189 at p. 7:14-8:16, 9:7-14.]
4
The factual background is drawn from the relevant admissible evidence submitted
by the parties. The Court’s reference to certain pieces of evidence is not an indication that
it is the only pertinent evidence relied upon or considered. The Court has reviewed and
considered all relevant admissible evidence submitted by the parties. Where properly
supported disputes of material fact exist, they are construed in the light most favorable to
Plaintiffs, as the non-movants on summary judgment.
5
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10428 Page 6 of 16

1

named the Medical Director of Psychiatry for all CPMG providers. According to CPMG

2

and the County’s contract, neither party would supervise the other party’s employees, and

3

thus, CPMG was responsible for supervising and training its own employees. [Ex. 1 at 21.]

4

The contract further required CPMG to designate a “Lead Psychiatrist” to “[p]erform

5

Quality Assurance/Quality Inspections (QA/QI) on new residents’ charts, as well as

6

performing a quarterly review of charts of all assigned physicians; keep the Sheriff’s CMO

7

and/or his designee apprised of QA/QI results.” [Id. at 24.]

8

Every month, between 12 and 20 patients were transferred from Patton State

9

Hospital to the Central Jail. In August 2015, Mr. Ruben Nunez, who suffered from serious

10

medical conditions of schizophrenia and psychogenic polydipsia (water intoxication), was

11

one such patient. Mr. Nunez died from these conditions at the Central Jail on August 13,

12

2015.

13

Construing the disputed facts in the light most favorable to Plaintiffs, as the non-

14

movants, the following is true about CPMG’s training efforts during the time period

15

leading up to Mr. Nunez’s death. For new physicians, CPMG conducted an orientation

16

consisting of (1) one day of job shadowing and (2) a packet of orientation information

17

about “correctional psychiatry jargon,” general information about the Psychiatric Security

18

Unit (“PSU”), facility security, safety cell clearance, psychiatric sick call, psychotropic

19

medications, and writing orders. [Ex. E.] CPMG did not have a Director of Training.

20

Although Dr. Mannis testified that Dr. Rao was in charge of training and educating CPMG

21

physicians, Dr. Rao did not know this was his responsibility and had not been so informed

22

by Dr. Mannis. Dr. Rao did not know how many employees worked at CPMG in 2015,

23

including whether it was less than 25 or more than 40. During 2015, approximately 30

24

physicians and four nurse practitioners worked for CPMG.

25

CPMG’s training efforts consisted of (1) disseminating educational information to

26

physicians on an “as needed” basis, as determined by Drs. Mannis, Rao, and Badre and (2)

27

holding “journal club meetings” approximately twice a year for providers to meet and

28

discuss any issues, review procedures, and assess how practices could be improved, among
6
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10429 Page 7 of 16

1

other topics. CPMG providers were encouraged but not required to attend the journal club

2

meetings. Dr. Rao could not recall if there had been even one journal club meeting in 2015.

3

As for its supervision efforts, CPMG did not conduct a single performance review

4

of its providers. Dr. Rao, the individual in charge of conducting chart reviews, did not

5

counsel any individual providers and could not identify any doctor with whom he spoke

6

about a deficiency in the charts. Although Dr. Rao conducted at least some audits of

7

psychiatric provider charts, he did not believe any CPMG doctor ever received a copy of

8

his reviews. Dr. Rao could not identify any physicians who received retraining. CPMG

9

did not conduct any formal in-person reviews of its physicians. Dr. Naranjo testified that

10

he was never audited or received a performance review and had never seen any audits or

11

reviews of his performance. Dr. Badre recommended the termination of one provider for

12

poor documentation accompanied with poor response to feedback given. Howeve, prior to

13

Mr. Nunez’s death, Dr. Mannis did not terminate the contracts of any CPMG providers for

14

poor performance.

15

At the Central Jail, the Psychiatric Security Unit (“PSU”) functions to treat mentally

16

ill patients who need hospitalization, and in the PSU, jail staff are permitted to administer

17

medication involuntarily to patients. Importantly, the PSU is also the only location in the

18

Central Jail where psychiatric patients’ water intake can be regulated. At the beginning of

19

the parties’ contractual relationship in November 2014, Dr. Alfred Joshua, Chief Medical

20

Officer for the Sheriff’s Department, emailed CPMG regarding various action items,

21

including noting that the policy on admissions to the PSU would be drafted by December

22

15, 2014. He summarized the policy on “Admission into PSU” as providing that Nurse

23

Practitioners could not admit patients to the PSU; only a psychiatrist could ultimately

24

evaluate and admit inmate-patients into the PSU. [Ex. 5, p. 1.] Likewise, Dr. Mannis,

25

CPMG’s owner, understood that it was psychiatrists who ultimately evaluated and admitted

26

patients to the PSU. When Mr. Nunez was transferred to the Central Jail, Patton State

27

Hospital sent along the court order authorizing “San Diego County Jail’s Psychiatric

28

Security Unit and Patton State Hospital to involuntarily administer antipsychotic
7
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10430 Page 8 of 16

1

medication” to Mr. Nunez. [Ex. 3 at 5.] Mr. Nunez, however, was not placed in the PSU

2

and had unrestricted access to water.

3

Dr. Sara Hansen, a CPMG psychiatrist, knew Mr. Nunez’s water needed to be

4

restricted. CPMG did not train Dr. Hansen that, to restrict a patient’s water, she had to

5

order his placement in the PSU. Similarly, Dr. Badre did not receive training on where

6

patients’ water could be restricted.

7

responsible for housing determinations and testified that CPMG staff could not affect

8

housing. Dr. Rao, in charge of CPMG’s training and supervision, did not understand the

9

process for admitting an inmate patient who had been transferred from a state hospital.

Dr. Badre also did not know physicians were

10

Dr. Joshua testified that Dr. Jorge Naranjo was the psychiatrist responsible for

11

inmates coming from state hospitals and was in charge of the PSU. He also testified that

12

the initial psychiatrist who evaluated an incoming inmate would determine where that

13

inmate was housed. Dr. Naranjo, however, testified that he had nothing to do with housing

14

determinations and did not have the authority to decide whether patients were admitted into

15

the PSU or the psychiatric floor. Further, Dr. Naranjo testified that he would not review a

16

new inmate-patient’s chart and would only review the medication list. Similarly, Dr.

17

Hansen testified that she had a habit of not reviewing the nurse’s discharge summary for

18

transferred patients. She did not review Mr. Nunez’s record from the Central Jail where a

19

Jail nurse noted that she told Mr. Nunez “to drink plenty of water.”

20

After Mr. Nunez’s death, Drs. Badre and Rao found Dr. Hansen failed to properly

21

document Mr. Nunez’s medical history, failed to request reasonable follow up, and did not

22

document an alert for water restriction in the Jail’s computerized medical record system

23

(“JIMS”) for Mr. Nunez. Prior to Mr. Nunez’s death, Dr. Mannis knew some providers

24

had difficulty with JIMS. Dr. Hansen testified she did not know how to use JIMS medical

25

alerts. Meanwhile, Dr. Rao, who was in charge of training CPMG providers, believed

26

CPMG physicians were not responsible for updating a patient’s medical alerts in JIMS.

27

Similarly, Dr. Badre testified he had never been trained on how to use the JIMS alerts.

28
8
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10431 Page 9 of 16

1

3. Failure to Train and Supervise Claims

2

For purposes of Plaintiffs’ § 1983 claims for failure to train and failure to supervise,

3

private entities like CPMG are treated like municipalities under Monell v. Dept. of Soc.

4

Servs., 436 U.S. 658 (1978). See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th

5

Cir. 2012). “Under Monell, [CPMG] can be held liable under § 1983 for policies of

6

inaction as well as policies of action.” Jackson v. Barnes, 749 F.3d 755 (9th Cir. 2014).

7

Because neither state officials nor municipalities are vicariously liable for their employees’

8

deprivations of others’ constitutional rights, Flores v. City of Los Angeles, 758 F.3d 1154,

9

1158 (9th Cir. 2014) (citing Monell, 436 U.S. at 694)), it is also true that, under § 1983,

10

CPMG cannot be held liable under a respondeat superior theory.5 Rather, to bring Monell

11

claims against CPMG based on CPMG’s alleged failure to train and supervise its

12

employees, Plaintiffs must show (1) CPMG acted under color of state law,6 (2) CPMG’s

13

training and/or supervision policies were not adequate to prevent violations of law by its

14

employees and/or were not adequate to train its employees to handle the usual and recurring

15

situations with which they must deal, (3) CPMG was deliberately indifferent to the

16

substantial risk its policies were inadequate, and (4) CPMG’s failure to provide adequate

17

training and/or supervision was so closely related to the deprivation of Mr. Nunez’s rights

18

as to be the moving force that caused his death. See, e.g., Ninth Cir. Model Jury Instruction

19

9.8; see also, e.g., Kirkpatrick v. County of Washoe, 843 F.3d 784, 793 (9th Cir. 2016).

20

Plaintiffs argue their newly discovered evidence shows the following training and

21

supervision failures by CPMG: (1) failure to train physicians to understand that they, alone,

22

could order patients to be housed in the PSU; (2) failure to train physicians on the

23
24
25
26
27
28

Despite Plaintiffs’ repeated reliance on Starr v. Baca, 652 F.3d 1202 (2011),
CPMG cannot be held liable under a supervisory liability theory because Plaintiffs do not
individually name any CPMG supervisors as defendants. Cf. Starr, 652 F.3d at 1207-1208
(considering defendant Sheriff Baca’s supervisory liability under § 1983 and Monell where
Baca was a supervisor who plaintiff sued in his individual capacity).
6
As before, the parties do not dispute this element. [Doc. 322, p. 30.]
5

9
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10432 Page 10 of 16

1

Department of State Hospitals terminology; (3) failure to train physicians on how to

2

communicate critical medical information through the Central Jail’s computerized system,

3

JIMS; (4) failure to train physicians to read patients’ medical records and discharge

4

summaries; (5) failure to train physicians on where water can be restricted and monitored;

5

(6) failure to conduct quality assurance by reviewing its physicians’ performance; and (7)

6

failure to take corrective action when deficiencies were found. [Doc. 389, p. 22.]

7

In opposition, CPMG argues the Court’s summary judgment order must stand

8

because despite Plaintiffs’ new evidence, a reasonable jury could not find CPMG’s alleged

9

failures to train and supervise amounted to “deliberate indifference” or that they caused

10

Mr. Nunez’s death. For the following reasons, the Court finds Plaintiffs have carried their

11

burden to raise a triable issue as to both elements, defeating CPMG’s motion for summary

12

judgment.

13

a. Plaintiffs Raise a Triable Issue of Fact as to CPMG’s Deliberate Indifference

14

First, CPMG argues that Plaintiffs’ § 1983 claims must fail because they do not offer

15

evidence of a pattern of constitutional violations similar to the one Mr. Nunez experienced.

16

To show deliberate indifference supporting a failure to train claim, Plaintiffs must offer

17

evidence showing CPMG “disregarded a known or obvious consequence . . . that a

18

particular omission in [its] training program [or lack of supervision] [would] cause[]

19

[CPMG] employees to violate citizens’ constitutional rights.” Connick v. Thompson, 563

20

U.S. 51 (2011). As Defendants correctly argue, a “pattern of similar constitutional

21

violations by untrained employees is ordinarily necessary to demonstrate deliberate

22

indifference for purposes of failure to train.” Connick, 563 U.S. at 62 (emphasis added).

23

The Supreme Court further explained:

24
25
26
27
28

Policymakers’ continued adherence to an approach that they know or should
know has failed to prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their action—the ‘deliberate
indifference’—necessary to trigger municipal liability. Without notice that a
course of training is deficient in a particular respect, decisionmakers can
hardly be said to have deliberately chosen a training program that will cause
violations of constitutional rights.
10
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10433 Page 11 of 16

1

Id. at 62.

2

Although Plaintiffs do not offer evidence showing a pattern, the analysis does not

3

end there. [Doc. 401 at 4.] The Supreme Court also “left open the possibility that, in a

4

narrow range of circumstances, a pattern of similar violations might not be necessary to

5

show deliberate indifference.” Connick v. Thompson, 563 U.S. 51, 63 (2011) (citing City

6

of Canton v. Harris, 489 U.S. 378, 390 at n.10 (1989)). For instance, a plaintiff may

7

succeed in proving a failure to train claim without showing a pattern where “a violation of

8

federal rights may be a highly predictable consequence of a failure to equip [the employees]

9

with specific tools to handle recurring situations.” Bd. of Cnty. Commissioners v. Brown,

10

520 U.S. 397, 409 (1997).

11

As an example of such “a narrow range of circumstances,” the Supreme Court

12

offered the hypothetical of a city that deploys its police force with firearms into the public

13

to capture fleeing felons without training the officers in the constitutional limitation on the

14

use of deadly force. Id. In its hypothetical, the Court “sought not to foreclose the

15

possibility, however rare, that the unconstitutional consequences of failing to train could

16

be so patently obvious that a city could be liable under § 1983 without proof of a pre-

17

existing pattern of violations.” Id. The Court explained that its hypothetical recognized

18

“[t]here is no reason to assume that police academy applicants are familiar with the

19

constitutional constraints of the use of deadly force.” Id.

20

Here, the Court is persuaded that a reasonable jury could find Plaintiffs’ failure to

21

train and supervise claims fall within the narrow range of circumstances sufficient to

22

support a deliberate indifference finding. First, Plaintiffs’ evidence suggests more than a

23

missing policy or a lack of training specific to a unique situation. Instead, Plaintiffs’

24

evidence suggests that CPMG’s training and supervision efforts were so minimal that their

25

inadequacy would have been patently obvious to CPMG. Moreover, the circumstances

26

surrounding Mr. Nunez’s transfer to and need for increased monitoring at the Central Jail

27
28
11
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10434 Page 12 of 16

1

were not unusual in several respects.7 It is undisputed that inmate-patients transferred from

2

state hospitals to the Central Jail generally require medical alerts in the JIMS system and

3

housing in the PSU. It is also undisputed that between 12 and 20 of those state hospital

4

patients are transferred to the Central Jail every month. In other words, Mr. Nunez’s

5

transfer from a state mental hospital to the Central Jail was not a unique circumstance; it

6

was a “recurring situation.” Bd. of Cnty. Commissioners v. Brown, 520 U.S. 397, 409

7

(1997). Where not one CPMG individual accepts responsibility for training CPMG’s

8

providers and where multiple providers, including CPMG directors, have no understanding

9

that only psychiatrists can place transferred inmate-patients in the PSU, Plaintiffs have

10

raised a triable issue on whether Mr. Nunez’s death was “a highly predictable consequence

11

of fail[ing] to equip [CPMG providers] with specific tools to handle recurring situations.”

12

Brown, 520 U.S. at 409. The “highly predictable consequence” of failing to equip CPMG

13

doctors with knowledge about how to place critically ill patients in the PSU or that it was

14

their responsibility to order transferred patients’ housing in the PSU, is that critically ill

15

transferred patients would not be placed in the PSU and would not receive the level of

16

psychiatric care and monitoring required by the U.S. Constitution.

17

Moreover, much like the Supreme Court’s hypothetical in Canton, there is no reason

18

to assume that CPMG physicians would innately know—without CPMG’s training—that

19

it was their responsibility to place patients into the PSU, how to place patients in the PSU,

20

or how to communicate critical medical alerts about patients through the Central Jail’s

21

computerized system. Cf. Flores v. Cnty of Los Angeles, 758 F.3d 1154, 1160 (9th Cir.

22

2014) (without pattern of similar constitutional violations, “[t]here [wa]s no basis from

23

which to conclude that the unconstitutional consequences of failing to train police officers

24
25

To be sure, Mr. Nunez’s need for a cell with water restrictions appears to be an
unusual circumstance. Without a pattern of similar violations, however, the Court cannot
find CPMG’s failure to train its providers on how to restrict patients’ water rises to the
level of deliberate indifference under Monell. Nonetheless, the other circumstances
surrounding Mr. Nunez’s treatment at the Central Jail are not unusual.
7

26
27
28

12
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10435 Page 13 of 16

1

not to commit sexual assault are so patently obvious that the [defendants] were deliberately

2

indifferent” where “[t]here [wa]s . . . every reason to assume that police academy applicants

3

are familiar with the criminal prohibition on sexual assault, as everyone is presumed to

4

know the law.”). This is particularly so within the overall context of CPMG’s training

5

efforts. Plaintiffs offer evidence depicting CPMG’s training process as both ineffective

6

and virtually nonexistent. With only a single day of job shadowing and an orientation

7

packet that did not address the PSU housing placement process, CPMG physicians

8

managed the medical and psychological needs of a complex population, including

9

transferred inmate-patients so mentally ill that they were not competent to stand trial and

10

often required additional medical care in the PSU.

11

organization-wide confusion about who oversaw the training and supervision of CPMG

12

physicians and whose responsibility it was to order a patient’s placement in the PSU.

13

Indeed, Dr. Naranjo, the very physician in charge of both CPMG’s psychiatric unit and the

14

initial evaluation and placement of all transferred patients, did not know he could order a

15

housing placement in the PSU and believed his role was limited to reviewing a patient’s

16

medication list. At minimum, the new evidence raises a triable issue as to whether CPMG’s

17

training failures were “so patently obvious that [CPMG] w[as] deliberately indifferent.”

At the same time, there was

18

CPMG responds by arguing that its “journal club meetings” covered the majority of

19

CPMG’s training needs. The evidence also shows, however, that these journal club

20

meetings were held approximately twice a year and were voluntary, not mandatory. Dr.

21

Rao, the individual tasked with training and supervising all CPMG providers, could not

22

recall if he conducted even one of those journal club meetings in the year prior to Mr.

23

Nunez’s death. In essence, the new evidence raises a genuine issue as to whether CPMG’s

24

training was so inadequate that a jury could reasonably find deliberate indifference.

25

The Court is similarly not persuaded by CPMG’s contention that it had no notice of

26

Dr. Hansen and Dr. Naranjo’s training deficiencies and continuity of care problems. The

27

new evidence raises a genuine issue upon which a reasonable jury could find that CPMG

28

chose not to know about Dr. Hansen and Dr. Naranjo’s training needs because it chose not
13
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10436 Page 14 of 16

1

to implement a systematic and regular auditing system to monitor the performance of its

2

30 physicians. Prior to Mr. Nunez’s death, CPMG neglected to review the performance of

3

either Dr. Naranjo, who was in charge of the psychiatric unit, or Dr. Hansen. Indeed,

4

CPMG did not audit either provider’s charting practices even once.

5

Further, the new evidence suggests deliberate indifference by CPMG and that

6

deliberate indifference may have caused Mr. Nunez’s death. For example, a review of both

7

physicians’ practices reflected serious deficiencies that CPMG likely would have identified

8

had it conducted regular reviews of its physicians’ charting or practices. Dr. Naranjo

9

testified he never reviewed patients’ charts and would only review their medication lists,

10

despite other testimony that Dr. Naranjo was responsible for all inmates transferred from

11

state hospitals. Similarly, Dr. Hansen testified that she did not review nurse discharge

12

summaries for transferred patients. Had CPMG audited Dr. Hansen and Dr. Naranjo’s

13

charts, it may have learned that neither doctor was placing critically ill patients into the

14

PSU for needed treatment and neither doctor was writing treatment plans or coordinating

15

continuity of care. Thus, the Court finds Plaintiffs’ new evidence “raises more than a

16

spectre of deliberate indifference” by CPMG. Kirkpatrick v. Cty. of Washoe, 843 F.3d 784,

17

796 (9th Cir. 2016) (denying summary judgment on plaintiff’s failure to train claim, despite

18

lack of evidence showing pattern of similar constitutional violations, where evidence

19

showed a complete failure by agency to train its social workers on the procedures for

20

obtaining a warrant and when a warrant is required before taking a child from a parent).

21

Despite the many challenges posed to CPMG physicians at the Central Jail,

22

including having to manage the psychological needs of inmate-patients coming and going

23

from state hospitals within a complicated corrections facility environment, Plaintiffs’ new

24

evidence further suggests that CPMG’s supervision efforts were constitutionally

25

inadequate. The new evidence raises genuine issues as to whether CPMG formally

26

reviewed a single physician, provided audits to its physicians, or had a methodical system

27

for conducting audits of its physicians’ charting and treatment practices. In light of the

28

newly discovered evidence, a reasonable jury could find that had CPMG conducted even
14
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10437 Page 15 of 16

1

the most basic of oversight, it would have conducted additional training after (1)

2

recognizing its physicians lacked an understanding of the housing placement process for

3

patients so vulnerable that they required admission to the PSU, and (2) recognizing its

4

physicians lacked an understanding of how to use the medical alerts in the Central Jail’s

5

electronic system. Put another way, a jury could reasonably find that the need for

6

additional training and supervision was “so patently obvious” that serious risks to patients’

7

medical care was the likely consequence. Plaintiffs have carried their burden to raise a

8

triable issue as to whether CPMG’s alleged failures amounted to deliberate indifference.

9

b.

Plaintiffs Raise a Triable Issue of Fact as to Causation

10

CPMG acknowledges the widespread confusion about how to place patients in the

11

PSU. Still, CPMG contends that Plaintiffs cannot show causation because, even if Mr.

12

Nunez had been admitted to the PSU, he still would have had access to water, unless a

13

provider ordered water restriction. [Doc. 398, p. 25.] CPMG further argues that Plaintiffs’

14

argument about the need for training on PSU housing placement “presupposes that Dr.

15

Naranjo and Dr. Hansen understood they were responsible for monitoring Mr. Nunez’s

16

medical conditions and knew Mr. Nunez needed immediate water restriction.”

17

CPMG’s theory is not persuasive, particularly because it evinces the inadequacy of

18

CPMG’s training: why did neither Dr. Naranjo nor Dr. Hansen know they were responsible

19

for monitoring Mr. Nunez’s medical conditions? Moreover, the evidence shows that

20

patients in the PSU were subject to greater monitoring, and thus, a fact question exists as

21

to whether PSU staff would have been more likely to notice and react to Mr. Nunez’s dire

22

condition before it was too late. Accordingly, Plaintiffs’ new evidence raises a triable issue

23

on causation—whether CPMG’s training and/or supervision failures were so closely

24

related to the deliberate indifference to Mr. Nunez’s serious medical needs as to be the

25

moving force that caused his death.

26

4. Punitive Damages

27

In its summary judgment order, the Court found that no reasonable jury could find

28

CPMG’s conduct rose to the level of “deliberate disregard of the interests of others that

Id.

15
3:16-cv-01412-BEN-MDD

Case 3:16-cv-01412-BEN-MDD Document 414 Filed 05/17/19 PageID.10438 Page 16 of 16

1

[its] conduct may be called willful and wanton.” [Doc. 322, p. 37.] For the same reasons

2

that Plaintiffs’ newly discovered evidence raises genuine issues of material fact as to

3

CPMG’s deliberate indifference, Plaintiffs have likewise raised genuine issues of material

4

fact as to the appropriateness of punitive damages. Based on the record, a reasonable jury

5

could find CPMG’s recklessness in failing to train and/or supervise its providers rose to a

6

level of deliberate disregard sufficient to support punitive damages.

7

CONCLUSION

8

For the previous reasons, Plaintiffs’ motion is GRANTED. It is further ordered that

9

the parties re-submit their proposed joint pretrial order and their proposed jury instructions

10

to include Counts 5 and 6 and punitive damages against CPMG within 7 days of this order.

11

As before, the parties’ proposed jury instructions must comply with the Court’s prior order

12

as to format, and the parties are ordered to again meet and confer about the additional jury

13

instructions before submitting them to the Court.

14

IT IS SO ORDERED.

15
16
17
18

DATED: May 17, 2019

_______________________________
HON. ROGER T. BENITEZ
United States District Judge

19
20
21
22
23
24
25
26
27
28
16
3:16-cv-01412-BEN-MDD