McAfee v. Naqvi et al

Filing 64

AMENDED ORDER re 63 Order on Motion in Limine. Signed by Judge Victor A. Bolden on 7/26/2017.(Ghosh, S.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
GERARD MCAFEE,
Plaintiff,

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v.
SYED J. NAQVI, M.D., individually,
OMPRAKASH PILLAI, M.D., individually, and
ROBERT BONNETTI, individually,
Defendants.

3:14-cv-410 (VAB)

RULING ON MOTION IN LIMINE
Gerard McAfee (“Plaintiff”) brings this case against Syed J. Naqvi, M.D., Omprakash Pillai,
M.D., and Robert Bonnetti (collectively, “Defendants”), all employees of the Connecticut
Department of Correction, in connection with medical treatment he received while incarcerated at the
MacDougall-Walker Correctional Institution in Sheffield, Connecticut. He alleges that Defendants
were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment to
the United States Constitution, by impeding his access to a surgical consultation and other follow up
treatment for his infected gallbladder. See First. Am. Compl., ECF No. 27 (“Compl.”).
Defendants seek to prohibit any evidence concerning “(1) whether the alleged delay in taking
the plaintiff to the surgical consultation resulted in injury to the plaintiff other than pain and suffering
until the time of the surgery; and (2) whether the alleged delay in taking the plaintiff to see the
surgical clinic caused subsequent or permanent injuries.” See Motion, ECF No. 56. For the reasons
that follow, the motion in limine is GRANTED to the extent that any treating physician of Mr.
McAfee seeks to testify about any matters beyond the scope of their treatment of him.
I.

Factual and Procedural Background
On October 21, 2011, a Connecticut court sentenced Mr. McAfee to five years’

imprisonment, execution suspended after two years, for carrying a pistol without a permit in violation
of Connecticut’s General Statutes. On March 19, 2012, while he was serving this sentence, Mr.
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McAfee allegedly became seriously ill. After “vomiting … large amounts of liquid” and
experiencing “excruciating upper abdominal pain,” Mr. McAfee notified the correctional officers on
duty. Compl. at ¶ 14. Eventually, the officers brought Mr. McAfee to the prison medical unit. Id. at
¶ 15. The next morning, medical personnel at the prison medical unit evaluated Mr. McAfee and
conducted several medical tests and x-rays. Id. at ¶ 16. Later that morning, Dr. Pillai evaluated Mr.
McAfee. Id. at ¶ 17. While lab results were pending, Dr. Pillai reviewed the x-rays and ordered a
follow-up. Id.
For the next week, Mr. McAfee alleges that he suffered severe pain and “could not eat
without vomiting.” Id. at ¶ 19. He “made several written requests to corrections officers for further
medical attention and treatment.” Id. at ¶ 20. On April 6, a nurse at the medical unit evaluated Mr.
McAfee, took new blood samples, and gave Mr. McAfee a prescription for Zantac. Id. at ¶ 21. The
next day, Mr. McAfee made another written request to correctional officers for “immediate medical
attention,” referencing the same acute abdominal pain and vomiting that he had described in his
previous requests. Id. at ¶ 22.
Dr. Naqvi evaluated Mr. McAfee the next day. Compl. at ¶ 22. He concluded that Mr.
McAfee’s gall bladder was inflamed, prescribed a bacterial antibiotic and anti-inflammatory
medication, and submitted a document to the Utilization Review Committee recommending that Mr.
McAfee receive an ultrasound and general surgery consult. Id. at ¶ 25. The Utilization Review
Committee approved the request on April 10. Id. at ¶ 31. On April 12, prison officials called Mr.
McAfee to the medical unit. Id. at ¶ 33. McAfee alleges that Mr. Bonnetti (“Nurse Rob”) was on
duty at the time. When Mr. McAfee entered the unit, Mr. Bonnetti allegedly responded in a hostile
manner. Specifically, Mr. Bonnetti
approached him and asked, “Who is the emergency?” McAfee responded, “It’s me.”
McAfee then followed Nurse Rob it the exam room. After McAfee explained that he
was not in pain at that very moment, Nurse Rob responded, “Then you’re not a f—king
emergency.” Stunned at Nurse Rob’s inappropriate outburst, McAfee asked, “Why are
you being such a cocky assh-le to me?” Nurse Rob then told McAfee to get out of the
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exam room and that he would be put in segregation instead of his cell. McAfee then
went back into the waiting room and sat down.
Id. at ¶ 34.
Mr. McAfee alleges that he continued to experience severe pain and vomiting after his
interaction with Mr. Bonnetti, but “did not request medical treatment …out of fear that he would be
placed in segregation as threatened by Nurse Rob if he made such requests.” Id. at ¶ 38. On April 28
and 30, he made written requests for medical care once again. Id. at ¶ 39. On May 1, prison officials
took him to UCONN Health Center (“UCHC”) in Farmington, Connecticut for his ultrasound and
consultation. Id. at ¶ 40.
At the Health Center, a doctor evaluated Mr. McAfee, concluded that he had “acute
cholecystitis” and scheduled gall bladder surgery the next day. Compl. at ¶ 44. The next day, Dr.
David W. McFadden performed the surgery, allegedly finding that Mr. McAfee’s gall bladder was
“thickened, inflamed, and gangrenous.” Id. at ¶ 45.
After the surgery, officials discharged Mr. McAfee to the general population at MacDougallWalker. Id. at ¶ 47. Mr. McAfee alleges that when he was there, Dr. Pillai “allowed the staples
placed in McAfee during the surgery on May 1 to become embedded and infected before removing
them.” Id. at ¶ 48. He alleges that he suffered from additional medical complications after the
surgery and had to receive an additional surgery to remove a hernia near the site of his original
surgery. Id. at ¶ 52.
Mr. McAfee alleges that Defendants were deliberately indifferent to his serious medical
needs. Dr. Naqvi, he alleges, diagnosed McAfee as suffering from acute cholecystitis on April 8,
2012 and, at that time, knew that McAfee had a serious medical need. Compl. at ¶ 55. Mr. McAfee
also alleges that Dr. Pillai was aware of the acute harm on the same day. Id. at ¶ 57.
Mr. McAfee therefore seeks to hold Drs. Naqvi and Pillai responsible for the twenty-one day
delay between Utilization Review Committee’s approval of the ultrasound and general surgery
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consult and Mr. McAfee’s actual ultrasound and surgery. He argues that this delay caused damages
including physical pain, emotional distress, and “severe discomfort.” Id. at ¶ 64. He seeks to hold
Mr. Bonnetti responsible for the delay as well, because Mr. Bonnetti’s taunting deterred him from
seeking medical care.
In his pre-trial memorandum, Mr. McAfee listed several doctors as witnesses. The first, Dr.
James Passarelli, would testify “as to the treatment that he had to provide to [Mr. McAfee] after he
was released from incarceration … in order to attempt to correct the problems that he had that were
caused by the deprivation of medical attention by the defendants.” Joint Trial Mem., ECF No. 48,
16. The second, Dr. Michael Wong, would testify about the same thing. Id. (adding that Dr. Wong
would testify about “problems that were caused by the deprivation of medical attention by the
defendants, including but not limited to internal bleeding.”). Two additional physician witnesses, Dr.
McFadden and his assistant, Dr. Jessica Lee, would testify about Mr. McAfee’s May 2012 surgery.
Id. Finally, Dr. Geoffrey Nadzam will “testify as to his treatment of Gerard McAfee for injuries that
were caused by the deprivation of medical attention by the defendants including performing two
surgeries after Gerard McAfee was released from the department of corrections.” Id. at 18.
Defendants move in limine for an Order that “no evidence be presented concerning: (1)
whether the alleged delay in taking the plaintiff to the surgical consultation resulted in injury to [Mr.
McAfee] other than pain and suffering until the time of the surgery; and (2) whether the alleged delay
in taking [Mr. McAfee] to see the surgical clinic caused subsequent or permanent injuries.” See
Motion, 2. Defendants also argue that Mr. McAfee’s proposed witnesses cannot testify as experts
about the medical effect of the alleged delay in his treatment. Mr. McAfee responds that he disclosed
the Doctors as experts by listing them in his May 5, 2015 response to interrogatories. Id. at 2; see
also Response to Interrog., Ex. A, ECF No. 62-1 (“Response”).

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Mr. McAfee listed Dr. McFadden, Dr. Geoffery Nadzam, and Dr. Passarelli under response
to Interrogatory 33, which asks for “all experts whom you intend to call as an expert witness at trial.”
Response, p. 11. Mr. McAfee specifically stated that the three doctors:
will testify as to the injuries that the plaintiff sustained to his abdomen and organs when
he was denied reasonable medical attention on the date listed in the complaint
specifically the injuries … that led to multiple surgeries. [The Doctors] treated and
examined the plaintiff for the injuries that the plaintiff sustained to his abdomen and
organs when he was denied reasonable medical attention. [T]hey all performed
surgeries on the plaintiff to repair the effects of the denial of medical treatment. They
will state that they are board certified in their specialties and that they have knowledge
of the cost of medical treatment that they performed as well as generally accepted costs
for treatment associated with the case and treatment with the care and treatment that he
was provided and that may be needed in the future. They will state that he sustained
permanent disabilities as a result of the denial of medical attention and the location of
the permanency.
Id.
II.

Standard of Review
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the

admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S. 38,
40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). “A district court’s inherent
authority to manage the course of its trials encompasses the right to rule on motions in limine.”
Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y. 2008).
Evidence should be excluded on a motion in limine only when the evidence is clearly
inadmissible on all potential grounds. Levinson v. Westport Nat’l Bank, No. 3:09-CV-1955 VLB,
2013 WL 3280013, at *3 (D. Conn. June 27, 2013). Courts considering a motion in limine may
reserve judgment until trial, so that the motion is placed in the appropriate factual context. See Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 287 (S.D.N.Y.
1996).
III.

Discussion
A. Disclosure of Experts
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Defendants seek to preclude the introduction of Mr. McAfee’s treating physicians because
they were not disclosed as experts. Mr. McAfee responds that he disclosed the physicians as experts
in his response to Defendants’ interrogatories and that, because they are treating physicians not hired
for the purpose of providing expert testimony, he was not required to provide expert reports for these
physicians under Rule 23(a)(2). The Court agrees with Defendants. Mr. McAfee’s response to
Interrogatory 33 does not satisfy Rule 23(a)(2), even when considering the lower requirements that
the Rule places on treating physicians acting as experts. Accordingly, Mr. McAfee’s treating
physicians may not offer testimony as expert witnesses, and their testimony at trial must be limited to
facts or opinions they acquired while treating Mr. McAfee.
Under Federal Rule of Civil Procedure 26(a)(2)(A), a party must disclose to the other parties
the identity of any expert witness it may use at trial, including a treating physician who will present
an expert opinion. See Fed. R. Civ. P. 26(a)(2)(A). A party seeking to use a treating physician as an
expert does not, however, need to provide a written expert report under Rule 26(a)(2)(B) because
treating physicians are not “retained or specially employed to provide expert testimony in the case.”
See Fed. R. Civ. P. 26(a)(2)(B); see also Barack v. Am. Honda Motor Co., 293 F.R.D. 106, 108 (D.
Conn. 2013) (collecting cases).
Nevertheless, even if a party discloses an expert who does not need to provide an expert
report under Rule 26(a)(2)(B), compliance with Rule 24(a)(2)(C) is still required and there must be
disclosure of “the subject matter on which the witness is expected to present evidence” and “a
summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P.
26(a)(2)(C); Puglisi v. Town of Hempstead Sanitary Dist. No. 2, No. 11-CV-0445 PKC, 2013 WL
4046263, at *3 (E.D.N.Y. Aug. 8, 2013) (“Rule 26(a)(2)(C) applies to expert witnesses not covered
by Rule 26(a)(2)(B)”); see also 2010 Advisory Comm. Notes (“A witness who is not required to
provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert
testimony under Evidence Rule 702, 703, or 705. Frequent examples include physicians or other
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health care professionals and employees of a party who do not regularly provide expert testimony.
Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required
under Rule 26(a)(2)(C).”).
A treating physician who has not complied with the reporting requirement of Rule 26(a)(2)
should therefore “not be permitted to render opinions outside the course of treatment and beyond the
reasonable reading of the medical records.” Barack v. Am. Honda Motor Co., 293 F.R.D. 106, 109
(D. Conn. 2013) (citing Lamere, 223 F.R.D. at 89). “[I]f a treating physician is called upon to review
... [any] materials outside the four corners of her medical records and to opine greater than what is
reflected in those medical records, we then would be of the view that such treating physician now
falls with[in] the parameters” of Rule 26(a)(2)(B) and a written expert report would be required.
Lamere, 223 F.R.D. at n. 4. “[T]he treating physician may not introduce information provided by
other physicians to whom the Plaintiff may have been referred nor may the doctor present any
medical reports received from other physicians regarding the Plaintiff or opine on any information
provided by another doctor.” Barack, 293 F.R.D. at 109 (internal citations omitted); Williams v.
Regus Mgmt. Grp., LLC, 10–CV–8987(JMF), 2012 WL 1711378, at *3 (S.D.N.Y. May 11, 2012)
(observing that the physician’s testimony is limited “to opinions formed during [his treatment of
plaintiff], including causation, severity, disability, permanency and future impairments”); Puglisi,
2013 WL 4046263, at *6 (physician whose testimony had not been disclosed as required under
26(a)(2)(C) “may not testify as to facts acquired or opinions formed outside of the treating physician
role, including but not limited to information acquired during preparations for his testimony at
trial.”); Franz v. New England Disposal Technologies, Inc., 2011 WL 5443856, at *3 (W.D.N.Y.
Nov. 9, 2011) (treating physician who was not designated as an expert witness and failed to prepare
the necessary expert report is prohibited from testifying “concerning opinions not gleaned from his
own diagnoses and treatment of the plaintiff.” ).

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Conversely, if the proffering party provides a sufficient disclosure under Rule 26(a)(2)(C),
then there is no need “to limit the scope of the treating physician’s expert opinion to plaintiff’s
treatment, by excluding therefrom matters beyond plaintiff’s course of treatment, i.e., information
acquired from outside sources.” Pitterman v. Gen. Motors LLC, No. 3:14-CV-00967 (JCH), 2016
WL 2892537, at *2 (D. Conn. May 17, 2016) (citing Geary v. Fancy, 12-CV-796W(F), 2016 WL
1252768, at * 3 (W.D.N.Y. Mar. 31, 2016) (internal quotation marks omitted)).
The question, then, is whether Mr. McAfee’s response to Interrogatory 33 constitutes
sufficient disclosure under Rule 26(a)(2)(C). The Advisory Committee has explained that disclosure
under Rule 26(a)(2)(C) is “considerably less extensive than the report required by Rule 26(a)(2)(B),”
and cautions that “[c]ourts must take care against requiring undue detail, keeping in mind that these
witnesses have not been specially retained and may not be as responsive to counsel as those who
have.” Advisory Committee Notes, 2010. Courts have considered disclosures in responses to
interrogatories to satisfy Rule 26(a)(2)(C), provided they contain the requisite summary. See, e.g.
Phillips v. UAW Int’l, No. 15-10525, 2015 WL 6156968, at *1 (E.D. Mich. Oct. 19, 2015) (“If the
plaintiff’s expert witnesses would not be required to furnish a report under Rule 26(a)(2)(B), the
plaintiff may have satisfied Rule 26(a)(2)(C) by making other disclosures throughout the discovery
period allowed in this case, through, for example, answers to interrogatories to document
productions”); Roark v. Speedway, LLC, No. CV 13-139-ART, 2015 WL 12978822, at *3 (E.D. Ky.
Apr. 6, 2015) (“Roark identified Dr. Brackett as an expert witness in his response to state court
interrogatories. R. 1-2 at 7. But Roark never provided the required Rule 26(a)(2)(C) summary. Thus,
Dr. Brackett cannot testify as an expert unless Roark’s failure to comply with Rule 26 is
‘substantially justified or is harmless.’”).
Nevertheless, the Court must make some demands of treating physicians who intend to act as
experts. In the past, for example, courts in this Circuit have rejected disclosures that constitute “mere
list[s] of names, accompanied by three-word descriptions of the subject matter of their testimony.”
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Millennium Pipeline Co. v. Certain Permanent & Temp. Easements in (No No.) Thayer Rd., S.B.L.
No. 63.00-1-24.1, Town of Erin, Cty. of Chemung, N.Y., 919 F. Supp. 2d 297, 300 (W.D.N.Y. 2013),
aff’d sub nom. Millennium Pipeline Co. v. Certain Permanent & Temp. Easements in (No No.)
Thayer Rd., S.B.L. No. 63.00-1-24.1, Town of Erin, Cty. of Chemung, New York, 552 F. App’x 37
(2d Cir. 2014). Courts have also concluded that expert physicians were improperly disclosed under
Rule 26(a)(2)(C) when the disclosures did not specify that the doctors would serve as expert, rather
than fact, witnesses. Ziegenfus v. John Veriha Trucking, 10–CV–5946(RJS), 2012 WL 1075841 at
*6-*7 (S.D.N.Y. Mar. 28, 2013) (physician could not testify as expert when proffering party had only
submitted an opinion letter from the physician, without indicating that it was a summary of his expert
testimony, and had stated that the physician might testify, in an interrogatory response, but did not
identify the physician as an expert witness); Puglisi, 2013 WL 4046263, at *4 (“Defendants could
not reasonably have been expected to infer from Puglisi’s Initial Disclosures, which identified Dr.
Stein as Puglisi’s treating physician and merely listed [Stein’s letters to an agency] as possible
evidence, that Puglisi intended to call Dr. Stein as an expert witness or that the Stein letters were
intended to serve either as Dr. Stein’s expert report.”). Ultimately, the question is whether the
disclosure provides “sufficient detail to permit defendants to prepare their defense.” Anderson v. E.
CT Health Network, Inc., No. 3:12CV785 (RNC), 2013 WL 5308269, at *1 (D. Conn. Sept. 20,
2013).
Mr. McAfee therefore can introduce treating physicians as expert witnesses if his
interrogatory responses satisfy the requirements of Rule 26(a)(2)(C). Otherwise, Drs. Passarelli,
Wong, McFadden, and Lee must limit their testimony to opinions formed during their treatment of
Mr. McAfee, “including causation, severity, disability, permanency and future impairments.”
Williams, 2012 WL 1711378, at *3, but excluding “opinions not gleaned from his own diagnoses and
treatment of the plaintiff.” Franz, 2011 WL 5443856, at *3. As an initial matter, Mr. McAfee only

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disclosed Drs. McFadden and Passarelli in his responses to interrogatories, so his disclosure of Drs.
Wong and Lee did not comply with Rule 26(a(2)(C) at all.
As for Drs. Passarelli and McFadden, Mr. McAfee’s response to Interrogatory 33 states that
these doctors
will testify as to the injuries that the plaintiff sustained to his abdomen and organs when
he was denied reasonable medical attention on the date listed in the complaint
specifically the injuries … that led to multiple surgeries. [The Doctors] treated and
examined the plaintiff for the injuries that the plaintiff sustained to his abdomen and
organs when he was denied reasonable medical attention. [T]hey all performed
surgeries on the plaintiff to repair the effects of the denial of medical treatment. They
will state that they are board certified in their specialties and that they have knowledge
of the cost of medical treatment that they performed as well as generally accepted costs
for treatment associated with the case and treatment with the care and treatment that he
was provided and that may be needed in the future. They will state that he sustained
permanent disabilities as a result of the denial of medical attention and the location of
the permanency.
Response, p. 11.
Defendants seek an order precluding the proposed experts from testifying as to “(1) whether
the alleged delay in taking the plaintiff to the surgical consultation resulted in injury to the plaintiff
other than pain and suffering until the time of the surgery; and (2) whether the alleged delay in taking
the plaintiff to see the surgical clinic caused subsequent or permanent injuries.” Motion, 2.
Defendants’ request should be granted, to the extent that it seeks to preclude any testimony
by McAfee’s treating physicians that goes beyond their actual treatment of him. While the
interrogatory response arguably provides disclosure on “the subject matter on which the witness is
expected to testify,” as required by Rule 26(a)(2)(C), the disclosure fails to contain “a summary of
the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).
Indeed, even on the eve of trial, there is nothing in the interrogatory response or elsewhere in the
record that would help the Defendants, much less the Court, understand what any of these treating
physicians will offer specifically on the subject matter for which they were disclosed, in terms of
facts and medical opinions.
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Instead of facts and opinions, the interrogatory response offers mere generalities, such as the
fact that Mr. McAfee “was denied medical attention” and sustained “permanent disabilities as a
result,” and the “generally accepted costs for treatment associated with the case and treatment with
the care and treatment that he was provided and that may be needed in the future.” Response, 11. As
a result, there is not “sufficient detail to permit defendants to prepare their defense.” Anderson, 2013
WL 5308269.
As this Court stated in Barack, “[a] treating physician who was not designated as an expert
witness and failed to prepare the necessary expert report is prohibited from testifying ‘concerning
opinions not gleaned from his own diagnoses and treatment of the plaintiff.’” Barack, 293 F.R.D. at
109 (internal citation omitted). Accordingly, the testimony of Drs. Passarelli and McFadden will be
“permitted to offer opinion testimony on diagnosis, treatment, prognosis and causation, but solely as
to the information he/she has acquired through observation of the Plaintiff in his/her role as a treating
physician limited to the facts in Plaintiff’s course of treatment.” Id. (citations and quotation marks
omitted) (emphasis in original).
B. Impact of Lack of Expert Testimony
Defendants also argue that expert testimony is crucial to Mr. McAfee’s case. “[F]or the
plaintiff to demonstrate causation, namely that the allegedly delay in taking him to surgery caused
the need for subsequent or additional medical treatment[,] requires expert testimony.” Motion, 2.
The Court construes this observation to be a request to limit the damages Mr. McAfee can seek
without expert testimony, rather than to limit Mr. McAfee’s ability to state a claim at all. Given the
complex medical issues involved in his theory of causation, medical testimony will be necessary.
Mr. McAfee may attempt to prove causation using the testimony of his treating physicians, which
will be limited as described above.
1. Mr. McAfee’s Case in Chief

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Mr. McAfee raises claims under the Eighth Amendment, which means he must prove that
Defendants displayed “deliberate indifference” to his serious medical needs. See Estelle v. Gamble,
429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The standard of deliberate indifference
includes both objective and subjective components. First, the deprivation of care must objectively be
“sufficiently serious.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (citations omitted).
Second, the facts must give rise to a reasonable inference that the persons charged with providing
medical care knew of those serious medical needs and intentionally disregarded them. Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir.1998). “[A] delay in treatment,” therefore, “does not violate
the constitution unless it involves an act or failure to act that evinces ‘a conscious disregard of a
substantial risk of serious harm.’” Thomas v. Nassau Cnty. Corr. Ctr., 288 F.Supp.2d 333, 339
(E.D.N.Y.2003) (quoting Chance, 143 F.3d at 703).
Mr. McAfee’s claim does not fail because he lacks expert testimony. When a prisoner raises
a deliberate indifference claim based on an “unreasonable delay or interruption in … treatment, the
seriousness inquiry focuses on the challenged delay or interruption in treatment rather than the
prisoner's underlying medical condition alone.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.
2006). A plaintiff can meet the objective component of the deliberate indifference standard without
the assistance of an expert by showing that the defendants were themselves aware that a delay in
treatment posed a serious medical problem. Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 181
(N.D.N.Y. 1996) (summary judgment inappropriate when “[a]ll of the doctors who examined the
plaintiff determined that surgery was an appropriate measure to alleviate the plaintiff's pain and
suffering, the plaintiff was continuously given prescriptive painkillers, and the defendants failed to
present any evidence to undermine the plaintiff's claim that his medical condition was serious and
caused him considerable pain.”).
“Whether a prison official had the requisite knowledge of a substantial risk is a question of
fact subject to demonstration in the usual ways, including inference from circumstantial evidence,
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and a fact-finder may conclude that a prison official knew of a substantial risk from the very fact that
the risk was obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994) (internal citations omitted).
The finder of fact can then assess the defendant’s deliberate indifference by making determinations
about the defendant’s behaviors, testimony, and credibility. See Estelle, 429 U.S. at 104–05
(observing that deliberate indifference to the inmate’s serious medical needs violates the Eighth
Amendment “whether the indifference is manifested by prison doctors in their response to the
prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed.”); see also Gill v. Mooney, 824 F.2d 192,
(2d Cir.1987) (plaintiff may have valid claim for relief where medical treatment refused for
misconduct unrelated to medical condition or treatment); Archer v. Dutcher, 733 F.2d 14 (2d
Cir.1984) (summary judgment inappropriate where plaintiff raises issue of material fact regarding
possibility that defendants delayed emergency medical aid to cause suffering for obstreperous
inmate); Stevens v. Goord, 535 F.Supp.2d 373, 388–89 (S.D.N.Y.2008) (doctors’ unfounded
assertion that plaintiff’s chest pain and respiratory symptoms were “essentially untreatable,” which
led to no treatment at all for nine months, raised factual issue as to their deliberate indifference); see
also Hamilton v. Lalumiere, No. 3:07CV148 JBA, 2011 WL 674023, at *2 (D. Conn. Feb. 16, 2011)
(judgment as a matter of law denied to corrections officer whose deliberate indifference was
manifested by the fact that, when he knew the plaintiff’s treatment would be delayed, he “ma[de] no
interim efforts of any sort to relieve Plaintiff's suffering, only making a perfunctory inquiry while
observing Plaintiff's continuing symptoms.”).
Mr. McAfee alleges that he experienced and reported to Defendants his acute symptoms,
including nausea, “excruciating abdominal pain,” and repeated vomiting. He alleges that Drs. Naqvi
and Pillai failed to promptly respond to his alleged symptoms, and that Mr. Bonnetti’s intentional
taunting and abuse interfered with his access to medical care. He further alleges that Drs. Naqvi and

13 

Pillai improperly and intentionally failed to attend to his post-surgical needs, so that the staples in his
abdomen became infected.
These allegations could sustain a claim of deliberate indifference, even without expert
testimony. See generally Hathaway, 37 F.3d at 68 (“We have never required plaintiffs alleging a
denial of adequate medical care in a Section 1983 action to produce expert medical testimony. The
inquiry remains whether the treating physician or other prison official was deliberately indifferent to
a prisoner’s serious medical needs, not whether the doctor’s conduct is actionable under state
malpractice law. Expert testimony certainly could have bolstered Hathaway’s case at trial, but the
absence of such expert proof does not mandate dismissal of his action where the facts support a
finding of deliberate indifference”).
At trial, Mr. McAfee could argue that Defendants knew about the delay in scheduling his
surgery, understood “the likely medical consequences of such a delay,” and deliberately failed to
address the potential problem. See Hilton v. Wright, 673 F.3d 120, 127 (2d Cir. 2012). Mr. McAfee
may also show, using Defendants’ testimony, that they were “willful[ly] blind” or callous to his
condition. Salahuddin, 467 F.3d at 282 (cautioning that “[w]hile willful blindness to a risk might
suggest awareness of the risk, simple blindness does not, and leads only to a finding of unactionable
negligence.”). Of course, Defendants may rebut this evidence by “establishing that they were
unaware of th[e] risk” to Mr. McAfee or that they “responded reasonably to the risk, even if the harm
ultimately was not averted.” Farmer, 511 U.S. at 844. Defendants will not be held to the standards
set by tort law for reasonable physicians. “Medical malpractice does not become a constitutional
violation just because the victim is a prisoner.” Estelle, 429 U.S. at 106.
2. Mr. McAfee’s Damages
Defendants’ true concern, however, seems to be with Mr. McAfee’s ability to prove that
Defendants’ alleged violations caused the injuries he claims. As Defendants argue, Mr. McAfee
must prove that his injuries were proximately caused by Defendants’ deliberate indifference. “Civil
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actions brought under § 1983 are analogous to state common law tort actions, serving primarily the
tort objective of compensation. A § 1983 action, like its state tort analogs, employs the principle of
proximate causation.” Barnes v. Anderson, 202 F.3d 150, 158 (2d Cir. 1999) (citations omitted); see
also Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir.1998) (“[A]s in all § 1983 cases, the plaintiff
must prove that the defendant’s action was a proximate cause of the plaintiff’s injury.”). For this
reason, Mr. McAfee must show that the alleged delay in treatment caused the medical injuries for
which he seeks compensation.
Mr. McAfee alleges only that “[a]s a direct and proximate cause of each Defendant’s actions,
[he] was injured,” Compl. at ¶ 87, but his pre-trial submissions make clear that he intends to hold
Defendants liable for medical injuries relating to Defendants’ constitutional violations. Specifically,
he alleges that Defendants proximately caused not only the pain and suffering he experienced during
the alleged delay in scheduling his surgery, but also the complications in his later surgery, his current
or future medical problems, and his lifelong disabilities. Joint Trial Mem., 16 (further alleging that,
as a result of Defendants’ conduct, “McAfee will continue to incur medical costs and expenses
related to the delay in receiving adequate medical treatment.”).
Mr. McAfee cannot prove these allegations without expert testimony. While demonstrating
causation in medical cases does not necessarily require expert testimony, “expert medical opinion
evidence is usually required to show the cause of an injury or disease because the medical effect on
the human system of the infliction of injuries is generally not within the sphere of the common
knowledge of the lay person.” Shegog v. Zabrecky, 36 Conn. App. 737, 745-46, 654 A.2d 771, cert.
denied, 232 Conn. 922, 656 A.2d 670 (1995). “Medical evidence relating to causes of injury to the
human body is not normally considered to dwell within the common knowledge of a layperson.”
Gold v. Dalkon Shield Claimants Tr., No. B-82-383 (EBB), 1998 WL 351456, at *3 (D. Conn. June
15, 1998), aff’d, 189 F.3d 460 (2d Cir. 1999). Of course, the need for expert testimony depends on
the type of causation analysis required; the Connecticut Supreme Court has described an exception to
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the requirement of expert testimony where the medical condition is “obvious or common in everyday
life” or where “the plaintiff's evidence creates a probability so strong that a jury can form a
reasonable belief without the aid of any expert opinion.” Palmer v. Sena, 474 F. Supp. 2d 347, 350
(D. Conn. 2007) (citing Aspiazu v. Orgera, 205 Conn. 623, 631, 535 A.2d 338 (1987)).
Mr. McAfee’s allegation of causation—that Defendants’ alleged deliberate indifference
exacerbated his existing Cholecystitis to cause surgical complications and lasting physical damage—
is outside the realm of expertise of a lay member of the jury. The effect that such a delay in
treatment would have on an existing infection in the gallbladder is not “obvious or common in
everyday life,” Palmer, 474 F. Supp. 2d at 350, nor does the normal progression of Cholecystitis
“dwell within the common knowledge of a layperson.” Gold, 1998 WL 351456, at *3. Without
assistance from a medical expert, the jury will be unable to distinguish the medical effects of the
alleged delay from the effects of Mr. McAfee’s preexisting injury. See, e.g. Evans v. Bonner, 196 F.
Supp. 2d 252, 258 (E.D.N.Y. 2002) (granting summary judgment on deliberate indifference claim
when plaintiff “acknowledges that he has not identified any expert who will testify that his injury
was aggravated as a result of the claimed delay in medical treatment, and admits that no medical
records exist which supports that a delay in medical care results in aggravation of his injury.”); R.T.
v. Gross, 298 F.Supp.2d 289, 296 (N.D.N.Y.2003) (“An inmate who complains that delay in medical
treatment rose to a constitutional violation must place verifying medical evidence in the record to
establish the detrimental effect of the delay in the medical treatment to succeed.”) (citing Hill v.
Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1188 (11th Cir.1994), abrogated on other
grounds by Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
Because Defendants’ motion in limine has been granted to the extent that any of the treating
physicians seek to testify beyond their treatment of Mr. McAfee, any medical testimony necessary to
sustain Mr. McAfee’s claims must come from their experience as treating physicians. Without
hearing the testimony these treating physicians have to offer, at this stage of the proceedings, the
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Court cannot assess whether this testimony, as limited, will be sufficient in order for Mr. McAfee to
argue that the alleged constitutional violations caused his future physical injuries. As a result, this
Court must await trial to determine what the jury may properly draw from this evidence. See Nat'l
Union., 937 F. Supp. at 287 (denial of motion in limine appropriate so that the court could “reserve
judgment on the motion until trial when admission of particular pieces of evidence is in an
appropriate factual context.”); see also Luce, 469 U.S. at 41 (observing that a ruling in limine “is
subject to change when the case unfolds, particularly if the actual testimony differs from what was
contained in the defendant's proffer.”).
IV. Conclusion
Defendants’ Motion in limine is GRANTED, to the extent that Mr. McAfee’s treating
physicians seek to testify about matters beyond their treatment of him.
SO ORDERED this 26th day of July, 2017 in Bridgeport, Connecticut.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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