Storey v. Effingham County et al

Filing 263

ORDER granting in part and denying in part 163 Motion to Exclude and 171 Motion for Summary Judgment; denying as moot 165 Motion in Limine and 168 Motion to Exclude; and directing the Clerk to enter judgment for Defendants, and against Plaintiff, pursuant to this Order and the previous Orders of the Court, terminating all pending motions and deadlines, and closing this case. Signed by Chief Judge J. Randal Hall on 03/26/2024. Modified on 3/26/2024 (jlh).

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

KEITH STOREY, as Executor of
the Estate of Valerie Storey
and Executor of the Estate of

Kenneth Cartee,
Plaintiff,
V.

CV 415-149

TRANSFORMHEALTHRX, INC; JOHN
DOES 1-20; ANISA GRANTHAM,

LPC, NCAC; REBECCA RANSOM,
LPN; JANE DOES 1-10; and JOHN
DOES PHYISICANS 1-5,
Defendants.

ORDER

Presently pending before the Court are: Anisa Grantham, Laura
Busbin, Marilyn
Inc's

Spikes,

Rebecca

Ransom,

C'THRX") (collectively, the ^'THRX

exclude

(Doc.

163);

Plaintiff's

motion

and

Transformhealthrx,

Defendants") motion to
in

limine

(Doc.

165);

Plaintiff's motion to exclude (Doc. 168); and the THRX Defendants'

motion for summary judgment (Doc. 171).
the

THRX

Defendants'

motion

to

For the following reasons,

exclude

is

GRANTED

IN

PART

and

DENIED IN Pl^T, the THRX Defendants' motion for summary judgment
is GRISTED IN PART and DENIED IN PART, Plaintiff's motion in limine
is DENIED AS MOOT and Plaintiff s motion to exclude is DENIED AS

MOOT.

I. BACKGROUND

The

Court

summarizes

the

relevant

facts

as

well

as

the

procedural background of the case thus far.
A. Procedural Background

On September 8, 2014, Valerie Storey,^ individually and as
executrix of Kenneth Cartee's

{""Cartee")

estate (the "Estate"),

filed a civil rights and tort action against Effingham County Jail
(the

"Jail"),

Jimmy

McDuffie,

Effingham

County

Sheriff's

Department, THRX, Effingham County Board of Commissioners, and 35
John and Jane Does.

Storey v. Effingham Cnty. Jail, No. 4:24-cv-

194, (Doc. 1, at 1) (S.D. Ga. Sept. 8, 2014).

On November 25,

2014, the Court dismissed the action without prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(ii).

Id. (Doc. 32, at

1).

On May 20, 2015, Ms. Storey, individually and as executrix of
the Estate, filed this renewal action alleging multiple federal
and state law causes of action against several individuals and
entities involved in Cartee's incarceration and medical treatment.

(Doc. 1.)
Complaint.
Second

On June 22, 2015, Ms. Storey filed her First Amended
(Doc. 37.)

Amended

On August 30, 2015, Ms. Storey filed her

Complaint

(hereinafter,

the "Complaint")

-

the

^ Ms. storey is Cartee's biological daughter.
(Doc. 202-1, at 3.)
However,
William Lamar Newman adopted Ms. Storey in 1981 after marrying Estella Nelson,
Ms. Storey's mother.
(Id.)
Cartee's parental rights over Ms. Storey were
terminated during this adoption. (Doc. 157-1, at 5.)

operative complaint.

{Doc. 72.)

Following Ms. Storey's death,

her husband, Keith Storey, was substituted as the party plaintiff
(hereinafter, ""Plaintiff").

(Doc. 137).

The Court previously ruled on several motions for summary

judgment.

On February 1, 2022, the Court granted Defendants

Effingham County, Effingham County Board of Commissioners, and
Jimmy McDuffie's motion to summary judgment.

(Doc. 254.)

On

August 31, 2022, the Court granted Defendants Ashby Lee Zydonyk,
Bryan Shearouse, Cora Mae Gaines, Dorothy Hopf, Garett Buckles,
Johnny Reinhart, Latonya Cooper, Leslie Minor, Paul Davis, Robert
L. Brown, and Tiffany Tisby's (collectively, the ^'ECSO Officers")
motion for summary judgment.

(Doc. 259.)

Most

recently,

on

February 20, 2024, the Court granted in part Dr. Rahimi's motion

for summary judgment, terminating him as a party to this action.
(Doc. 262.)

There have also been several stipulations of dismissal

(Docs. 242, 249, 251), so the only remaining Defendants are the
THRX Defendants.

Additionally, the Court previously found Ms.

Storey lacked standing to bring a wrongful death claim in her
individual capacity because she was adopted before Cartee's death;
thus. Plaintiff lacks standing to bring a wrongful death claim in
his capacity as executor of Ms. Storey's estate.
24.)

(Doc. 259, at

But the Court also found Plaintiff has standing to pursue a

wrongful
Estate.

death
(Id.)

claim

in

his

capacity

as

executor

of

Cartee's

Plaintiff brings federal and state law claims against the
THRX Defendants, asserting: (1) deliberate indifference, delay in
treatment, and failure to train or implement policies and practices
under

42

U.S.C. § 1983 and

(2)

medical malpractice,

suffering, and wrongful death under Georgia law.2

pain

and

(Doc. 72, at

22-30.)

B. Factual Background

The facts relevant to this Order are as follows.^ On September

9, 2012, Cartee called Ms. Storey and told her he planned to commit
suicide.

(Doc. 246-1, at 130.)

Because of Cartee's history of

self-harm, Ms. Storey called 911 and drove to his house.
3, 131.)

(Id. at

The police arrived and tried to persuade Cartee to go to

the hospital for a mental evaluation, but he refused so the police
departed, and Ms. Storey stayed.

(Id. at 4.)

After the police

left, Cartee put a knife to Ms. Storey's throat and said if he was

going, then she was going too.

(Id.)

Another witness distracted

Cartee, placed Ms. Storey in his car, drove to a neighbor's house,
and called 911 again.

(Id.)

2 The Complaint broadly asserts "Federal Claims under 42 U.S.C. § 1983" and
"Claims under Georgia Law" without specifically enumerating each claim he
brings. Thus, out of an abundance of caution, the Court lists numerous types
of claims from what it appears are pled in the Complaint.
(Doc. 72, at 22,
25.)

3 The THRX Defendants filed a consolidated reply to Plaintiff's SUMF that
contained the THRX Defendants' initial statements. Plaintiff's response, and

their reply, as well as Plaintiff's initial statements and the THRX Defendants'
responses. (Doc. 246-1, at 2-3.) Because this is a consolidated format, the
Court refers to this document for the undisputed material facts.

The police again responded and found Cartee disheveled and

unkempt and a knife on the ground.

(Id. at 6.)

tried

Cartee,

to

obtain

information

from

Deputy Schaffer

but

unresponsive or would say ''it doesn't matter."

he

was

(Id.)

either

Corporal

Shearouse observed an unlabeled pill bottle in Cartee's pocket

with several types of pills. (Id. at 7.) Cartee would not identify
the pills and would not say if he had taken any medication, so
emergency medical services ("EMS") was called and Cartee agreed to
go to the hospital.

(Id.)

Before the ambulance reached the

hospital, Cartee decided he no longer wanted to go and exited the
ambulance.

(Id.)

At that

time.

Corporal

Shearouse,

who

was

following the ambulance, determined Cartee met the criteria for an
involuntary evaluation and took Cartee to the hospital in his
patrol car.

(Id.)

1. Initial Hospitalization and Arrest

Upon

arrival

at

Effingham

County

Hospital,

Cartee

first

actively resisted by stopping and pulling away, but then entered
the hospital and sat in the emergency room.

(Id.)

Cartee was

examined, it was determined the crisis unit did not need to be

called, and Cartee was to be discharged once the hospital received
a urine sample.

(Id. at 8.)

Corporal Shearouse removed one of

Cartee's cuffs so he could provide the urine sample, but rather

than giving the sample, Cartee walked towards Corporal Shearouse,
scowling, pulling on his zipper, and mumbling.

(Id. at 8-9.)

As

Cartee approached Corporal Shearouse, Corporal Shearouse extended
his arm telling Cartee to not come closer, but Cartee continued
closer and raised his right hand in a closed fist in a manner to

strike Corporal Shearouse. (Id. at 9.) Corporal Shearouse grabbed
the handcuff and pulled Cartee's arm down to prevent the strike,

then put Cartee's hands behind his back and pushed him against the
wall.

(Id.)

Cartee refused to cooperate so Corporal Shearouse

placed him on the ground, removed his taser, showed Cartee the
taser, and warning Cartee he would be tased if he did not stop

resisting.
(Id.)

(Id. at 10.)

Cartee was not tased at the hospital.

Corporal Shearouse tried to handcuff Cartee and applied

pressure to his back to get Cartee to comply, then he handcuffed
him and placed him onto the bench.

(Id.)

Once Cartee was handcuffed again. Corporal Shearouse left the

observation room and informed the physician of the incident and

that Cartee would be arrested upon his release from the hospital.

(Id.)

During the altercation, Cartee injured his wrist, so he was

treated

for

discharged.

that

and

then

(Id. at 11.)

was

given

medical

clearance

and

Cartee was charged with aggravated

assault, possession of a controlled substance, and obstruction of
law enforcement and was taken to the jail.

(Id. at 11-12.)

2. Initial Detainment and Evaluation at the Jail

At the Jail, Corporal Shearouse excused himself to reduce the

likelihood of causing Cartee further irritation and other officers

helped remove Cartee from the patrol car.

(Id. at 12.)

Cartee

continued to resist the officers' commands to keep his hands on

the counter and attempted to walk away, when the officers tried to

grab him, he pulled away and the taser was deployed into Cartee's
abdominal

area.

(Id.

at

13-14.)

Cartee

was

placed

in

a

restraining chair in a holding cell for monitoring until he could
be examined by a nurse.

(Id. at 16.)

When the nurse arrived,

Cartee had to be physically removed from the restraint chair by
the officers and then was strip searched.

(Id. at 17.)

Cartee

refused to put on an inmate uniform and was given a suicide blanket
to cover himself.

(Id. at 18.)

At all relevant times, THRX^ provided medical care at the
Jail.

(Id. at 133.)

Rebecca Ransom (""Nurse Ransom") was the

full-time nurse at the Jail and employed by THRX.

(Id. at 30.)

Nurse Ransom worked Monday through Friday, but THRX also had a

pool of nurses that would cover if she could not work on any given
day.

(Id.)

At the request of the Jail's captain. Nurse Ransom

first saw Cartee in a holding cell in booking due to his behavior.

(Id. at 31.)
(Id.)

Cartee appeared very confused in the restraint chair.

Nurse Ransom first recalled Cartee's aggressive behavior.

'' The THRX Defendants are state actors for purposes of Section 1983.

(Doc. 171-

1, at 2 (citing West v. Adkins, 487 U.S. 42, 55-56 (1988); Craig v. Floyd Cnty.,
643 F.3d 1306, 1310 (11th Cir. 2011))); see also Craig, 643 F.3d at 1310 ("^When

a private entity . . . contracts with a county to provide medical services to
inmates, it performs a function traditionally within the exclusive prerogative
of the state' and 'becomes the functional equivalent of the municipality' under
section 1983." (citation omitted)).

that he was a poor historian, disheveled, and uncoordinated in his

thoughts.

(Id. at 32-33.)

Nurse Ransom took Catee's vital signs,

including blood pressure temperature, oxygen saturation, pulse and

respiration,

and

completed

the

initial

assessment

using

Subjective, Objective, Assessment, and Plan ("SOAP") notes.
at 32.)

the
(Id.

Nurse Ransom also entered information from officers into

the SOAP notes that Cartee was disoriented and combative with them.

(Id. at 33.)

Nurse Ransom was not informed Cartee was tased or

taken to the ground and was unaware of any altercation between
Cartee and the Jail staff.

whether

Cartee

was

(Id. at 33, 41.)

disoriented

because

of

She did not know

drugs

or

a

mental

illness, so she made Brandy McDonald, her supervisor, aware.
at 33.)

(Id.

Ms. McDonald advised Nurse Ransom to get an order from

Dr. Pope, the Jail doctor, to send Cartee to the emergency room
for a mental health evaluation.

(Id. at 18, 33, 60.)

Using On-

Call, a telephone triage for correctional facilities that could be
used by nursing and jail staff twenty-four hours a day, Cartee's
case was referred to Dr. Pope.

(Id. at 33-34.)

It was a mutual

decision of Nurse Ransom and the Jail's captain to send Cartee for

physiological evaluation.

(Id. at 37.)

3. Psychological Evaluation Referral

Cartee was transported back to Effingham Hospital for his

psychological evaluation.

(Id. at 39.)

When officers removed him

from the restraint chair for transport, Cartee became angry and

8

combative and was tased by the Jail staff to enable them to secure

him in leg irons and handcuffs.

(Id.)

Officers Reinhart and

Zydonyk transported Cartee to the hospital, and during transport
he was combative and kicked the windows and doors of the patrol

car.

(Id. at 40.)

When Cartee arrived at Effingham Hospital,

hospital staff gave him three injections to calm him.

(Id. at

41.)

On

September

11,

2012,

Officers

Zydonyk

and

Singletary

transported him to Georgia Regional Hospital C'GRH") in Savannah.
(Id. at 42.)

Cartee was admitted to GRH on September 11, 2012 and

discharged on September 17, 2012.
with

schizoaffective

assigned

disorder

involuntary

psychosis.

and

medication

(Id.)

Cartee was diagnosed

polysubstance

abuse and

administration

for

was

acute

(Id.)

4. Return to Jail

Cartee was transported back to the Jail on September 17, 2012
with instructions from Dr. Pechal that Cartee may be manipulative
or act out and a recommendation that the Jail deny Cartee any sharp

objects or items he could use to harm himself or others.
43-44.)

(Id. at

Deputy Plank arrived at GRH to transport Cartee back to

the Jail and put leg irons and handcuffs on Cartee, and he walked
to the car.

(Id. at 45.)

Upon arrival at the Jail, Cartee exited

the car on his own and walked into the Jail.

(Id.)

Cartee's leg

shackles were removed, and he was placed in a holding cell.

(Id.

at 46.)

Nurse Ransom evaluated Cartee at the Jail on September 17,

2012.

(Id.

at

47.)

Cartee

was

brought into

wheelchair, and he claimed he could not walk.

medical in

(Id.)

a

When Cartee

returned from GRH, he was less aggressive but still incapable of

communicating with Nurse Ransom.

(Id.) He was oriented to person,

place, and time, but it was still difficult for him to communicate.
(Id. at 4 9.)

He could not put his thoughts in order and was a

poor historian of his medical history.

completed

an

intake

screening

(Id. at 48.)

form

to

Nurse Ransom

document

his

physical

condition, and Cartee was responsible for answering the questions
on

it.

(Id.

at

48,

50.)

Cartee

stated

he

was

''mentally

handicapped" and provided history regarding seizures and memory
loss, but he could not explain why he was in a wheelchair.
at 50-51.)

(Id.

Cartee had no injuries upon arrival and denied he had

any inflammation, difficulty breathing, or chest pain.

(Id. at

51.)

Cartee was not disrobed during this evaluation.
54.)

(Id. at 53-

Nevertheless, Nurse Ransom made these notes and observations:

he did not appear to be suffering from head trauma; his neck was

supple with no jugular venous distention and his lymph nodes did
not

appear

swollen;

his

lungs

were

clear

with

no crackles

or

wheezing; he had normal percussion and respiratory effect; his

10

abdomen was nondistended and nontender and there was no rebound

pain or guarding; she observed no inflammation of his spleen; no
swelling on his fingers, legs, or toes; his skin was intact, free
of rashes, and a normal range of motion in his hands and feet; he

had equal grip strength in both hands; no obvious trauma to his
legs and he was bending and moving both legs.

(Id. at 55-56.)

On September 18, 2012, Officer Davis arrived to escort Cartee
from isolation to a bond hearing at the booking desk.

58.)

(Id. at

Cartee claimed he could not walk despite walking at GRH and

into the Jail the day before.

(Id.)

Officers Davis and Reinhart

attempted to verbally coerce Cartee to walk and when he did not
move. Officer David drive-stunned him on the lower thigh three
times.

(Id. at 59.)

Officer Tisby then retrieved the wheelchair,

and Cartee was escorted to booking without further incident.

(Id.)

That same day, Anisa Grantham saw Cartee for the first and

only time.
counselor
60-62.)

(Id. at 62, 168.)

Grantham is a licensed professional

C'LPC") and has worked with THRX since 2004.

(Id. at

Grantham worked one to two hours twice a week at the Jail,

usually on Tuesdays and Fridays.

(Id. at 61.)

list of inmates to see

he

because

was

a

new

Cartee was on her
patient,

was in

isolation, had a mental health history, and was taking medications.
(Id. at 62, 169.)

Based on her review of the intake notes from

September 17, 2012, Grantham believe it would be appropriate to
complete her evaluation of Cartee within 10 minutes.

11

(Id. at 62.)

She noted Cartee could not walk other than going to the bathroom,

and he wanted to go back to GRH.

(Id. at 63.)

His movements were

selective, as he could bend his legs when he was asked to sit up.
(Id.)

She stated his behavior was manipulative, and she was not

convinced

he

could

not

walk.

(Id.)

She

also

noted

he

was

disheveled with bruising and scabs on his arms and hands, but the

scabs did not appear to be recent.

(Id. at 63-64.)

Grantham's

duty was not to diagnose at the Jail, diagnosis would have been
done by Dr. Pope, but she came in the mornings, and he usually
came later in the day.

(Id. at 64.)

Grantham did not obtain

inmates' history and physicals because that was a medical activity,
and she had no medical background.

(Id. at 65, 166.)

The nursing

staff was responsible for making sure Grantham had the medical
information

problems,

she

she

evaluation.

needed,

would

but

usually

(Id. at 65.)

if

be

an

inmate

able

to

had

serious

detect

that

mental

in

her

When Grantham saw Cartee on September

18, 2012, she did not find him to be so severely mentally ill that
he needed to be removed from the Jail.

(Id.)

If an inmate is

severely mentally ill, they are not going to be housed at the Jail
because it is a liability.

(Id. at 123.)

Prior to his time at the Jail, Cartee received outpatient
treatment

three

(""Gateway").

times

a

(Id. at 68.)

week

at

Gateway

Behavioral

Health

On September 18, 2012, Nurse Ransom

spoke with Gateway who confirmed they never witnessed Cartee in a

12

wheelchair and that he was always ambulatory with a cane.

(Id.}

However, on September 20, 2012, Cartee was still not able to walk

and required assistance to be transferred to the bed.

(Id. at

70.)

Nurse Ransom saw Cartee every day between September 17 and

September 20, 2012 at pill call when she gave him his medications.
(Id.)

She

observed

changes

from

his

initial

complaints

on

September 11, 2012, and on September 20, 2012, she noticed he could
not sit up on his own, and his upper body strength was limited.
(Id. at 72.)

But Nurse Ransom stated he did not look like a man

who had been assaulted, and she saw no lacerations and did not

note any bruising.

(Id.)

She spoke with Dr. Pope who ordered

Cartee be sent back to the hospital, and he was sent within an
hour.

(Id. at 73.)

The medical notes specified Nurse Ransom spoke

directly with Dr. Pope, which was not standard procedure, but she
made

the

decision

to

call

troubled by what she saw.

Dr.

Pope

directly

because

she

was

(Id.)

Cartee was evaluated at Effingham Hospital and diagnosed with

a t-spine fracture, sepsis, bilateral rib fractures, bruises and
contusions,

urinary

retention,

renal

rhabdomyolysis, and a pressure sore.

failure,

hematuria,

(Id. at 74, 76.)

THRX is

unaware how Cartee received rib fractures or fractured his spine.

(Id. at 139-140.)
17,

2012,

which

Nothing in the intake records from September
were

completed

13

by

Cartee

and

Nurse

Ransom,

indicates he had any pressure sores, bruises, or infections.

at 140.)

Cartee was then transferred to Memorial Hospital in

Savannah, Georgia.

Hospital

(Id.

on

October

Rehabilitation.

(Id. at 81.)

(Id. at 75.)

22,

He was discharged from Memorial

2012

(Id. at 77, 79.)

and

admitted

to

Woodlands

Cartee died on June 25, 2013.

His cause of death was acute respiratory failure;

cardiopulmonary arrest; and adult failure to thrive. (Id. at 177.)

II. THRX DEFENDANTS' MOTION TO EXCLUDE

The THRX Defendants move, pursuant to Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),

to exclude the testimony of Dr. Charles E. Potts, M.D.

at 1.)

(Doc. 163,

Specifically, they argue Dr. Potts is not qualified to

render causation opinions, and the assumptions he relies on are
incorrect and not the product of reliable science.

(Id. at 2.)

Most of their arguments rely on the fact Dr. Potts originally

opined that the individual THRX Defendants met the standard of
care and were not deliberately indifferent to the medical needs of
Cartee;

however,

he

then

issued

an

errata

sheet

(the

^^Errata

Sheet") changing his conclusions, finding the THRX Defendants did
not meet the standard of care, and finding they were deliberately
indifferent to Cartee's needs.
move to exclude him.

(Id.)

Thus, the THRX Defendants

(Id.)

In response. Plaintiff argues Dr. Potts is qualified and his
opinions are reliable.

(Doc. 182, at 7-9.)

14

He argues Dr. Potts

had the right to amend his answers substantively in the Errata
Sheet, he timely did so, and the THRX Defendants did not move to
strike the Errata Sheet or challenge it before now.

(Id. at 7.)

Plaintiff believes the THRX Defendants should have moved to strike

Dr. Potts' Errata Sheet before the Scheduling Order deadline for

motions, and their delay in doing so does not allow the Errata
Sheet to be the

basis for excluding

Dr.

Potts.

(Id. at 8.)

Furthermore, Plaintiff argues the THRX Defendants put forth no
factual basis for Dr. Potts being unqualified or why his opinions
are unreliable because of the ^'alleged

deposition and the [E]rrata [S]heet."

^flip flop' between the

(Id.)

The THRX Defendants

replied, arguing Dr. Potts' resume does not make his testimony
reliable or admissible.

(Doc. 198, at 2-3.)

They again emphasize

his ""testimony is based on nothing more than his personal beliefs

or ipse dixit," which is an insufficient basis to provide expert
testimony.

(Id. at 3.)

They also argue Dr. Potts is not qualified

to testify, specifically because he does not meet the requirements

of an expert under Georgia law.

(Id. at 13-15.)

As the gatekeeper,

the THRX Defendants urge the Court to apply the Federal Rules of

Evidence, Georgia rules for experts in medical malpractice cases,
and

Daubert

inadmissible.

to

find

Dr.

Potts'

testimony

unreliable

and

(Id. at 4-19.)

Dr. Potts submitted an expert report with an affidavit signed
June 23, 2016 (Doc. 123-1, at 2-14) and an Errata Sheet dated March

15

3, 2017 (Doc. 163-4)

Dr. Potts is a physician trained in internal

medicine and gastroenterology and licensed to practice medicine in
all of its branches.

(Doc. 123-1, at 4.)

He practiced medicine

from 1983 until 2011 and has 17 years of experience in correctional

health care in Washington, D.C. and Maryland.

(Id.)

Because of

his training, education, and experience. Dr. Potts is familiar
with the standard of care for medical practices relating to the
care and treatment of patients like Cartee.
Dr.

Potts

reviewed the

medical

(Id.)

records of Cartee from

his

initial incarceration at the Jail to the diagnosis of ''status post

assault" at Effingham Hospital emergency room.

(Id. at 5.)

The

records include the initial triage, referral to the emergency room

for a mental health evaluation, and throughout his incarceration
at the Jail, where clinical care was provided by THRX.

(Id.)

Based upon his review of the records, it is his opinion THRX and
its employees; the nurse Defendants; Jimmy McDuffie, Effingham
County Sheriff; and the jailer and officer Defendants breached the
standard of care by:

1. Failing to ensure the safety of [Cartee] resulting in
multiple trauma sustained September 17, 2012 and
September 20, 2012[.]
2. Incompetently assessing his care during the interval
September 17, 2012 and September 20, 2012 resulting in
delay of treatment for his injuries resulting in undo
suffering, neurological and organ damage.
3. Failed to report, investigate, or follow up on a
manifest incident of abuse and neglect in a timely
manner.

5 The Errata Sheet is dated March 3, 2017; however, it was signed on April 16,
2017.

(Doc. 163-4, at 1.)

16

(Id.)

Dr. Potts believes the THRX Defendants, including the nurse

Defendants, ''did

not

use

such

care

as

reasonably

prudently

healthcare providers practicing in the same field in the same or
similar locality would have provided under similar circumstances."
(Id. at 7.) Dr. Potts believes these breaches, along with breaches

by the Effingham County Defendants between September 17, 2012 and
September

20,

2012,

caused

Cartee's

diagnoses

enumerated

by

Effingham Hospital of status post assault, including bruises,
contusions, multiple rib fractures, T-11 thoracic spine fracture,
rhabdomyolysis,
decubitus ulcer.

Dr.

Potts

dehydration,

sepsis,

and

a

Stage

11

sacral

(Id. at 7-8.)

was

deposed

March

3,

2017

and

testified

the

individual THRX Defendants, specifically Nurse Ransom and Anisa
Grantham,

met the

indifferent

to

standard of care and

Cartee.

(Doc.

163-3,

were

at

not deliberately

271-272.)

He

also

clarified he could not render an opinion on deliberate indifference
or

a

breach of the standard of care for Laura

McDonald,

and

Marilyn

Spikes

because

he

did

information on their involvement with Cartee.
Potts testified

September

not

have

any

(Id. at 272.)

Dr.

he had issues with Cartee's care from intake on

9' 2012,

incomplete.

Busbin, Brandy

and

he

believes

(Id. at 60-61.)

the

intake

assessment

Then, in his Errata Sheet prepared

the same day of his deposition, he clarified his
answer

refers

to

the

was

written

content

of

the

record.

Documentation by [N]urse Ransom and Anitha Grantham may
meet the standard of care as it pertains to data entry
as a task.
My response is not a global generalized

17

approval of the standard of care provided by [N]urse
Ransom, Anitha
Grantham, [THRX], or [the]
Jail.
Indifference was manifested by a failure to acknowledge
[Cartee's] neuromuscular complains as legitimate and

potentially progressive which resulted in a failure to
follow up and reassess the consequence of which resulted
in the deterioration of [Cartee's] physical condition

compounded by physical assault and not until it was
perceived that he was at risk of demise was he
transported out of the facility for medical evaluation
and intervention.

{Doc. 163-5, at 60.)

Overall, he testified that while Cartee was

in the Jail, Nurse Ransom did not violate the standard of care.
(Doc. 163-3, at 140, 146.)

However, in his Errata Sheet, Dr. Potts

clarified:

My response is the literal interpretation of the
question regarding actual text in the record. Conscious
indifference

and

breach

of

the

standard

of

care

is

evidenced by what is NOT in the record, i.e. absence of
documentation related to follow up, reassessment of
[Cartee's] physical and mental condition on rounds,
vital signs, evidence[] that prescribed medication was
given and what effect or side effects the medication may
or may not have had. The greater the care of concern,
the greater the documentation.
(Doc. 163-5, at 146.)

Defendants

object to,

These are a few clarifications the THRX

arguing

Dr.

Potts "created" new

because his original ones undermined Plaintiff's case.
1, at 5-6.)

answers

(Doc. 163-

Plaintiff denies these allegations, arguing Dr. Potts

is qualified and his testimony is reliable.

(Doc. 182, at 7-9.)

The Court addresses the Parties' arguments below.
A. Legal Standard
Federal Rule of Evidence 702 provides:

18

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in

the form of4-an' opinion or otherwise if the proponent
demonstrates to the court that it is more likely than
not that:

(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and

(d) the expert opinion reflects a reliable application
of the principles and methods to the facts of the case.

^'As the Supreme Court recognized in [Daubert], Rule 702 plainly
contemplates that the district court will serve as a gatekeeper to
the admission of [expert] testimony."

Quiet Tech. DC-8, Inc. v.

Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (llth Cir. 2003) (citing
Daubert, 509 U.S. at 589).

"The burden of laying the proper

foundation for the admission of the expert testimony is on the

party offering the expert, and admissibility must be shown by a
preponderance of the evidence."

Allison v. McGhan Med. Corp., 184

F.3d 1300, 1306 (llth Cir. 1999) (citing Daubert, 509 U.S. at 592
n.lO).

The Eleventh Circuit has explained that district courts are

to engage in a three-part inquiry to determine the admissibility
of expert testimony under Rule 702.

Quiet Tech., 326 F.3d at 1340.

Specifically, the court must consider whether:

19

(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2) the
methodology by which the expert reaches his conclusions
is sufficiently reliable as determined by the sort of
inquiry mandated in Daubert; and (3) the testimony
assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.

Id. at 1340-41 (citations omitted).

First, an expert may be qualified to testify due to his
knowledge, skill, experience, training, or education.

Trilink Saw

Chain, LLC v. Blount, Inc., 583 F. Supp. 2d 1293, 1304 (N.D. Ga.
2008)

(citation

omitted).

"'A

witness's

qualifications

must

correspond to the subject matter of his proffered testimony."
Anderson v. Columbia Cnty., No. CV 112-031, 2014 WL 8103792, at *7

(S.D. Ga. Mar. 31, 2014) (citing Jones v. Lincoln Elec. Co., 188
F.3d 709, 723 (7th Cir. 1999)).

However, an expert's training

need not be narrowly tailored to match the exact point of dispute.
McDowell V. Brown, 392 F.3d 1283, 1297 (11th Cir. 2004).

Second, the testifying expert's opinions must be reliable.
In Daubert, the Supreme Court directed district courts faced with

the

proffer

of

expert

testimony

to

conduct

a

"preliminary

assessment of whether the reasoning or methodology underlying the

testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue."
U.S. at 592-93.

509

Courts should consider four factors: (1) whether

the theory or technique can be tested, (2) whether it has been

20

subject to peer review, (3) whether the technique has a known or

potential rate of error, and (4) whether the theory has attained
general acceptance in the relevant community.

Id. at 593-94.

''These factors are illustrative, not exhaustive; not all of them

will apply in every case, and in some cases other factors will be
equally

important

expert opinion."

in

evaluating

the

reliability

of

proffered

United States v. Frazier, 387 F.3d 1244, 1262

(11th Cir. 2004) (citations omitted).

For example, experience-

based experts need not satisfy the factors set forth in Daubert.
See United States v. Valdes, 681 F. App'x 874, 881 (11th Cir. 2017)
(affirming admission of testimony from expert identifying firearms
based upon years of experience working with firearms).

However,

"[t]he inquiry is no less exacting where the expert 'witness is
relying solely on experience' rather than scientific methodology."
Summit

at

Paces,

LLC

v.

RBC

Bank,

No.

1:09-CV-03504,

2012

WL

13076793, at *2 (N.D. Ga. May 22, 2012) (quoting Fed. R. Evid. 702,

advisory committee's notes to 2000 amendment)).

Bearing in mind

the diversity of expert testimony, "the trial judge must have
considerable leeway in deciding in a particular case how to go
about

determining

reliable."

whether

particular

expert

testimony

is

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

"[W]hether the proposed testimony is scientifically correct is not
a

consideration

expert's

for

testimony,

this

court,

based

on

21

but

only

whether

scientific

or

not

principles

the
and

methodology, is reliable." In re Chantix Prods. Liab. Litig., 889
F. Supp. 2d 1272, 1280 (N.D. Ala. 2012) (citing Allison v. McGhan
Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999)).

^^Vigorous

cross-examination, presentation of contrary evidence, and careful
instruction

on

the

burden

of

proof

are

the

traditional

and

appropriate means of attacking shaky but admissible evidence."
Id. (citations omitted and alterations adopted).

Regardless of the specific factors considered,

[p]i^oposed

testimony must be supported by appropriate validation - i.e., ^good
grounds,' based on what is known."
most

cases,

^'[t]he

expert's

Daubert, 509 U.S. at 590.

testimony

must

be

grounded

in

In
an

accepted body of learning or experience in the expert's field, and
the expert must explain how the conclusion is so grounded."
R.

Evid.

702,

advisory

committee's

notes

to

2000

Fed.

amendment.

""Presenting a summary of a proffered expert's testimony in the
form

of conclusory statements

devoid

of factual or

analytical

support is simply not enough" to carry the proponent's burden.
Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., 402 F.3d

1092, 1113 (11th Cir. 2005).

Thus, ""if the witness is relying

solely or primarily on experience, then the witness must explain
how that experience leads to the conclusion

reached,

why that

experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts."

Frazier, 387 F.3d

at 1261 (citation omitted) (alterations in original).

22

Third, expert testimony must assist the trier of fact to
decide a fact at issue.
as one of ''fit."

requirement,

the

The Supreme Court has described this test

Daubert, 509 U.S. at 591.

testimony

must

concern

To satisfy this

matters

beyond

the

understanding of the average lay person and logically advance a
material aspect of the proponent's case.
at 1262.

Id.; Frazier, 387 F.3d

Yet, "[pjroffered expert testimony generally will not

help the trier

of fact

when it offers

nothing more than

lawyers for the parties can argue in closing arguments."

what

Frazier,

387 F.3d at 1262-63.

"Federal Rule of Civil Procedure 30(e) allows a deponent 'to

review the transcript or recording of a deposition and, if there
are charges in form or substance, to sign a statement reciting
such changes and the reasons given by the deponent for making
them.'"

ChemFree Corp. v. J. Walter, Inc., No. 1:04-CV-3711, 2008

WL 5234247, at *1 (N.D. Ga. Sept. 30, 2008) (quoting Fed. R. Civ.
P. 30(e)).

The

changes

usually come through

an

errata

sheet,

"which is an attachment to a deposition transcript containing the
deponent's corrections upon reading the transcript and the reasons
for

those

corrections."

Id.

(citation

and

quotation

marks

omitted).
B. Discussion

The

THRX

Defendants

move

the

Court

to

exclude

Dr.

Potts'

testimony because he "created" the Errata Sheet answers "out of

23

thin air," and they are the type of ipse dixit testimony Daubert

was designed to eliminate.

(Doc. 163-1, at 6.)

Plaintiff argues

the THRX Defendants' motion is based on their "displeasure" with
the fact Dr. Potts amended some of his answers.

4.)
Rule

(Doc. 182, at

But Plaintiff contends Dr. Potts had a right to do so under
30(e),

and

such

clarification

qualifications or reliability.

does

not

affect

his

(Id.)

1. Qualifications

The

qualification

requirements

First, he must meet the
outlined

above.

malpractice
Georgia

law

under

Dr.

Potts

requirements under the

Further,

claim

of

because

Georgia

qualification

the

law.

case

Dr.

twofold.

Federal Rules,

involves

Potts

requirements.

are

a

must

O.C.G.A.

§

medical

meet

the

24-7-702

requires an expert testifying in a medical malpractice case about
the

acceptable

standard

of

conduct

of

the

professional

to

be

"licensed by an appropriate regulatory agency to practice his or
her profession in the state in which such expert was practicing or

teaching in the

profession at such time."

Additionally, for

medical malpractice cases in Georgia, the expert must have:
actual professional knowledge and experience in the area
of practice or specialty in which the opinion is to be
given as the result of having been regularly engaged in:

(A) The active practice of such area of specialty
of his or her profession for at least three of the

last five years, with sufficient frequency to
establish an appropriate level of knowledge, as
determined
by the
judge, in
performing the
procedure, diagnosing the condition, or rendering
the treatment which is alleged to have been

24

performed or rendered negligently by the defendant
whose conduct is at issue; or

(B) The teaching of his or her profession for at
least three of the last five years as an employed
member of the faculty of an educational institution
accredited in the teaching of such profession, with
sufficient frequency to establish an appropriate
level of knowledge, as determined by the judge, in
teaching others how to perform the procedure,
diagnose the condition, or render the treatment
which is alleged to have been performed or rendered
negligently by the defendant whose conduct is at
issue; and

(C) Except as provided in subparagraph (D) of this
paragraph:
(i) Is a member of the same profession;
(ii) Is a medical doctor testifying as to the
standard of care of a defendant who is a doctor

of osteopathy; or
(iii) Is a doctor of osteopathy testifying as
to the standard of care of a defendant who is

a medical doctor; and

(D) Notwithstanding any other provision of this
Code section, an expert who is a physician and, as
a result of having, during at least three of the
last five years immediately preceding the time the
act or omission is alleged to have occurred,
supervised, taught, or instructed nurses, nurse
practitioners,
certified
registered
nurse
anesthetists,
nurse
midwives,
physician
assistants,
physical
therapists,
occupational
therapists, or medical support staff, has knowledge
of the standard of care of that health care provider
under the circumstances at issue shall be competent
to testify as to the standard of that health care
provider. However, a nurse, nurse practitioner,
certified
registered
nurse
anesthetist,
nurse
midwife, physician assistant, physical therapist,
occupational therapist, or medical support staff
shall not be competent to testify as to the standard
of care of a physician.
O.C.G.A. § 24-7-702(c)(2).

25

As

to

the

Federal

Rules,

the

qualified due to his experience.

Court

finds

Dr.

Potts

is

He has an extensive history in

both correctional facilities and private practice over the course
of his career.

(Doc. 182-1, at 6-10.)

Given the facts of Cartee's

case and the THRX Defendants' status as medical providers in a

jail. Dr. Potts' experience corresponds to the relevant subject
matter.

See Anderson, 2014 WL 8103792, at *7 (citation omitted).

Based on this, the Court finds Dr. Potts qualified as an expert
under the Federal Rules.

The Court now turns to his qualifications

under Georgia law.
Defendants

argue

in

their

reply

that

Dr.

Potts

is

not

qualified under O.C.G.A. § 24-7-702(c) to offer standard of care

opinions because his role as a clinician ended in 2011 when he

stopped seeing inmates/patients.

(Doc. 198, at 3 n.2.)

Although

this was not explicitly raised in the THRX Defendants' motion to
exclude, the Court still reviews this issue as it carries out its

gatekeeping role.

See Frazier, 387 F.3d at 1260 (""Rule 702 compels

the district courts to perform the critical ^gatekeeping' function
concerning the admissibility of expert . . .

evidence."); City of

Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 563 (11th Cir.

1998) (taking no issue with district court that excluded expert
testimony sua sponte, only reversing on other grounds).
curriculum

vitae

illustrates

he

has

not

actively

Dr. Potts'
practiced

medicine since 2011, thus he is not qualified under sub-section
(A).

(Doc. 182-1, at 6); O.C.G.A. § 24-7-702(c)(2)(A).

26

Further,

he has not taught for at least three of the last five years as an

employed member of the faculty of an educational institution
accredited in the teaching of such profession; thus, he is not

qualified under sub-section (B).

O.C.G.A. § 24-7-702(c)(2)(B).

Based on his failure to meet one of these two requirements. Dr.

Potts is not qualified under Georgia law to testify as to the
standard of care for Plaintiff's state law medical malpractice
claim.

Despite his statutory qualifications for Plaintiff s federal
claim, the THRX Defendants argue Dr. Potts is not qualified to
render a causation opinion because of the "'flip-flop" between his
deposition

and Errata

Sheet.

(Doc.

163-1, at 10.)

The THRX

Defendants base this argument on Dr. Potts' "lack of knowledge of
the objective criteria, his professed lack of understanding of the
roles of the participants, and the actual facts of this case."
(Id. at 10-11.)

the facts.

They also argue Dr. Pott's opinions do not "fit"

(Id. at 11.)

The Court finds these arguments are more

properly addressed under the reliability and "fit" prongs of its
analysis below.
Based on the foregoing, the Court finds Dr. Potts is qualified
as an expert under the Federal Rules of Evidence, but not under

Georgia law for medical malpractice opinions.

Dr. Potts' testimony

will be inadmissible in support of Plaintiff's Georgia medical

malpractice claims.

The Court addresses the additional prongs of

27

admissibility as they pertain to Dr. Potts' testimony in support
of Plaintiff's federal claim.

2. Reliability
The THRX Defendants take issue with the inconsistencies of

Dr. Potts' testimony, the fact his causation opinions are not tied
to the facts of the case, his lack of understanding of the roles

of the participants, and because his opinions are ipse dixit, thus
unreliable
response.

provide

and speculative.
Plaintiff

no

unreliable.

factual

(Doc. 163-1 at 6-7, 10-11.)

conclusively

basis

for

asserts

why

Dr.

the

THRX

Potts'

In

Defendants

opinions

are

(Doc. 182, at 8.)

While the use of an errata sheet is acceptable under Rule

30(e), there is a split among courts in the Eleventh Circuit as to
whether it can be used to make substantive changes or not.
Norelus v.

(explaining

Denny's Inc., 628

that

some

cases

F.3d

1270, 1281 (11th

hold

errata

sheets

do

See

Cir. 2010)

not

allow

material changes and some hold errata sheets can be used to make

any types of changes) (citations omitted).

''The Eleventh Circuit

has not held which standard applies in this Circuit[.]"

Candy

Craft Creations, LLC v. Gartner, No. CV 212-091, 2015 WL 1541507,

at *11 (S.D. Ga. Mar. 31, 2015) (citing Reynolds v. I.B.M. Corp.,
125 F. App'x 982 (11th Cir. 2004)).

However, courts agree that if

a substantive change is allowed, the party proffering the change
must provide sufficient justification as required by Rule 30(e).
Id. (citing EEC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 268

28

{3d Cir. 2010)); Fed. R. Civ. P. 30 (e) (''[T]he deponent must be

allowed 30 days after being notified . . . that the transcript or
recording is available in which: (A) to review the transcript or
recording; and (B) if there are changes in form or substance, to

sign a statement listing the changes and the reasons for making
them." (emphasis added)).

Because

errata

sheets are

acceptable,

the

Court finds

it

improper to classify Dr. Potts as unreliable simply because he
utilized this permissible form of correcting his deposition.

That

said, the Court takes issue with the fact many of his corrections
are

not

connected

to

the

facts

and

do

justification as required by Rule 30(e).
consideration

for

the

^^fit" of

his

not

contain

sufficient

While this is likely a

testimony,

the

Court

also

addresses the THRX Defendants' arguments that Dr. Potts' opinions
are simply ipse dixit.

(Doc. 163-1, at 6-7.)

Nothing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion
evidence that is connected to existing data only by the
ipse dixit of the expert.
This consideration has been
incorporated into the text of the amended Rule 702, which
requires not only that the testimony be the product of
reliable principles and methods . . . but also that the
testimony be based upon sufficient facts or data.
Frazier,

387

F.3d at 1275 n.lO

omitted and alterations adopted).

(citations

and

quotation marks

The Eleventh Circuit has warned

against "[r]eliance on naked assurances of the purported expert."
Dukes

V.

Georgia, 428

F. Supp. 2d

1298, 1315 (N.D.

Ga. 2006)

(citing Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty.,

29

402 F.3d 1092 {11th Cir. 2005); McClain v, Metabolife Int^l^ Inc.,
401 F.3d 1233, 1244 (11th Cir. 2005)).
In Dr. Potts' Errata Sheet, he twice adds standard of care

opinions for the individual THRX Defendants.
82.)

(Doc. 163-5, at 60,

During his deposition, he testified the nurse Defendants did

not violate the standard of care, but in

his Errata Sheet, he

clarifies that in the limited scenario questioned, there was no

breach, but then provides a general overview of what he thinks
should have been done and how indifference can be presented.

(Id.)

These additions are not only disconnected to the facts, which the
Court addresses below, but they also do not explain how they are
based on reliable methods and principles or why he changed his

opinion

from

his

'Mi]ndifference

deposition.

was

For

manifested

by

example.
a

Dr.

failure

to

Potts

states

acknowledge

[Cartee's] neuromuscular complains as legitimate and potentially
progressive . . . ."
contention.

Dr.

(Doc. 163-5, at 60.)

Potts

fails

to

explain

But beside this broad
how

this

breached

the

standard of care or what causes these actions to be classified as

"indifference."

Rule

702

requires

an

expert's

opinions

"be

grounded in an accepted body of learning or experience in the
expert's field" and requires the expert "explain how the conclusion
is so grounded."
2000 amendment.

Fed. R. Evid. 702, advisory committee's notes to
Dr. Potts failed to do so.

Without a connection

between his standard of care opinions, and which of the Defendants'

30

actions constitute indifference, the Court finds Dr. Potts' Errata

Sheet opinions are not reliable.
3. ^^Fit"

Finally, the THRX Defendants argue Dr. Potts' opinions are
not tied to the facts or likely to assist the trier of fact.

163-1, at 11.)

(Doc.

The Court construes this as an argument of ''fit,"

and Plaintiff provides no response.

(See Doc. 182.)

To satisfy

the "fit" requirement. Dr. Potts' testimony must concern matters

beyond the understanding of the average lay person and logically
advance a material aspect of Plaintiff's case.

Daubert, 509 U.S.

at 591.

As outlined above. Dr. Potts' Errata Sheet additions do not

"fit" the facts because he added opinions about how indifference
is manifested and how the standard of care is breached by looking
outside

the

record,

and

he

failed

to

connect

his

general

conclusions to a specific Defendant or to specific acts.
Doc. 163-5, at 60, 82, 146.)

It appears

(See

Dr. Potts used this

opportunity to insert his generalized conclusory opinions about
the outcome of the case, but such conclusions do not help a jury
when they are not linked to specific Defendants or actions.

In

comparison. Dr. Potts' expert report states the THRX Defendants
breached the standard of care by: "[fJailing to ensure the safety

of

[Cartee]

resulting

in

multiple

trauma,"

"[i]ncompetently

assessing [Cartee's] care . . . resulting in delay of treatment
for his injuries resulting in undo suffering, neurological and

31

organ damage," and ''[failing] to report, investigate, or follow up
on a manifest incident of abuse and neglect in a timely manner."

(Doc. 123-1, at 5.)

He then provides specific events that occurred

on various days that he connects to these conclusions, so the Court
finds these opinions "fit" the case as they are linked to specific
Defendants and actions.

(Id. at 6-7.)

Dr. Potts' expert report

opinions linked to specific facts are acceptable, but his Errata
Sheet opinions not connected to any specific facts or Defendants
shall be excluded.

Specifically, the Court excludes the following

opinions from Dr. Potts' Errata Sheet as conclusory and in no way
connected to the facts:

Indifference was manifested by a failure to acknowledge
his
neuromuscular
complaints
as
legitimate
and
potentially progressive which resulted in a failure to
follow up and reassess the consequence of which resulted
in
the
deterioration
of
his
physical
condition
compounded by physical assault and not until it was
perceived that he was at risk of demise was he
transported out of the facility for medical evaluation
and intervention.

Supplement. An impression based on initial information
is accepted practice. However, the standard of care is
breached
if
additional
monitoring,
testing,
or
observation for change in condition is not sought or
prescribed to follow
up and confirm the initial
impression is correct.
The subjective state of an
individual, real, imagined, or feigned may change which
can result in an accurate diagnosis.
Indifference is
evidenced by the failure to follow up and reassess at
appropriate
intervals
and
[document]
change
in
condition.

Clarification.
My
response
is
to
the
literal
interpretation of the question regarding actual text in
the

record.

Conscious indifference

and

breach

of the

standard of care is evidenced by what is NOT in the

32

record, i.e. absence of documentation related to follow

up, reassessment of his physical and mental condition on
rounds,
vital
signs,
evidenced
that
prescribed
medication was given and what effect or side effects the
medication may or may not have had. The greater the care
of concern, the greater the documentation.
(Doc. 163-5, at 60, 82, 146.)

These portions of Mr. Potts' opinion

do not '"fit" the facts of the case and will not assist the trier

of fact in determining the issues before the Court.

As such, they

should be excluded as it pertains to Plaintiff's federal claims
against the THRX Defendants.
4. Conclusion

Based on the foregoing, the THRX Defendants' motion to exclude
Dr.

Potts

(Doc.

163)

is

GRANTED

IN

PART

AND

DENIED

IN

PART.

Specifically, the Court finds Dr. Potts is not qualified to testify
as

a

medical

malpractice

expert

under

Georgia

law;

thus,

his

opinions are excluded as it relates to Plaintiff s state law claims
against the THRX Defendants.

As to Plaintiff's federal claim, the

specific portions of Dr. Potts' Errata Sheet listed above are also
excluded as he provided no connection between the testimony and
the specific facts of the case.

III. THRX DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff

asserts

the

following

claims

against

the

THRX

Defendants: Count 1 - 42 U.S.C. § 1983 for deliberate indifference
to Cartee's medical needs in violation of the Fourteenth Amendment

and Count 2 - Georgia medical malpractice in violation of O.C.G.A.

33

§ 9-11-9.1.

(Doc. 12,

at 22-30.)

Plaintiff seeks

punitive

damages; compensatory damages; pain and suffering damages; and
damages for companionship, aid and support, and the full value of
Cartee's life.

(Id. at 27-30.)

The THRX Defendants move for

summary judgment on all claims against them.

(Doc. 171-1.)

A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, a motion for summary

judgment is granted ""if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to

judgment as a matter of law."

Fed. R. Civ. P. 56(a).

'"An issue

of fact is ^material' if . . . it might affect the outcome of the

case . . . [and it] is ^genuine' if the record taken as a whole
could lead a rational trier of fact to find for the nonmoving

party."

Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60

(11th Cir. 2004) (citations omitted).

The Court must view factual

disputes in the light most favorable to the non-moving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986), and must draw "all justifiable inferences in [the nonmoving party's] favor."

United States v. Four Parcels of Real

Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal

punctuation and citations omitted).
the evidence or determine credibility.
Inc., 477 U.S. 242, 255 (1986).

The Court should not weigh
Anderson v. Liberty Lobby,

However, the nonmoving party "must

do more than simply show that there is some metaphysical doubt as
to the material facts."

Matsushita, 475 U.S. at 586 (citations

34

omitted).

A mere ''scintilla" of evidence, or simply conclusory

allegations, will not suffice. See e.g., Tidwell v. Carter Prods.,
135 F.3d 1422, 1425 (11th Cir. 1998).
The THRX Defendants do not bear the burden of proof at trial,

and

therefore

may "satisfy [their] initial

judgment in either of two ways."
Mortg.,

955

F.

Supp.

2d

1256,

burden

on

summary

McQueen v. Wells Fargo Home

1262 (N.D.

Ala. 2013) (citing

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir.
1993)).

First, they "may simply show that there is an absence of

evidence to support [Plaintiff's] case on the particular issue at
hand."

Id.

(citation omitted).

If this occurs. Plaintiff "must

rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict
motion,

or

(2)

proffering

evidence

sufficient

to

withstand

a

directed verdict motion at trial based on the alleged evidentiary
deficiency."

Id.

(citation

omitted).

Or

second,

the

THRX

Defendants may "provide affirmative evidence demonstrating that
[Plaintiff] will be unable to prove [his] case at trial."

Id.

(citation omitted and alterations in original).
"Parties may not, by the simple expedient of dumping a mass
of evidentiary material into the record, shift to the Court the
burden

of

positions."

identifying

supporting

their

respective

Preis v. Lexington Ins., 508 F. Supp. 2d 1061, 1068

(S.D. Ala. 2007).

every

evidence

potential

Essentially, the Court has no duty "to distill

argument

that

could

35

be

made

based

upon

the

materials before it on summary judgment."

Corp.

V.

Dunmar

Corp.,

43

F.3d

587,

Id. (citing Resol. Tr.

599

(11th

Cir.

1995)).

Accordingly, the Court will only review the materials the Parties
specifically cite and legal arguments they expressly advance.

See

id.

In this action, the Clerk of Court provided Plaintiff notice

of the summary judgment motion, the right to file affidavits or
other materials in opposition, and the consequences of default.
(Doc. 173.)

For that reason, the notice requirements of Griffith

V. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam),
are satisfied.

Plaintiff responded to the motion (Doc. 229), and

the THRX Defendants replied in support (Doc. 246).
filing materials

has expired,

the issues

have

The time for

been

briefed, and the motion is now ripe for consideration.

thoroughly
In reaching

its conclusions, the Court evaluated the Parties' briefs, other

submissions, and the evidentiary record in the case.
B. Discussion

The THRX Defendants contend summary judgment on all claims

against them is proper for the following reasons: (1) Ms. Storey
was adopted, thus she could not bring a wrongful death claim in
her individual capacity; (2) Plaintiff, as executor of the estate
of Ms. Storey, is not a proper party because Ms. Storey never had
the right to a wrongful death claim; (3) Ms. Storey could have
brought a wrongful death claim for Cartee's next-of-kin but she

failed to do so; (4) Ms. Storey lacks standing to bring a next-

36

of-kin wrongful death claim because she failed to allege there was

no surviving spouse, no child, or no parent; (5) Plaintiff's
Georgia malpractice claims, which encompass his wrongful death
claims, fail because Plaintiff cannot establish causation; (6)

punitive damages are not recoverable in a Georgia wrongful death
action; (7) Plaintiff cannot meet the applicable legal standard to
succeed on

his deliberate indifference, delay, and policy-and-

procedure claims (8) fictitious party pleading does not toll the
statute of limitations

{"SOL") for the THRX Defendants; (9) the

two-year SOL for personal injury claims bars Plaintiff's federal
and state law claims.

(Doc. 171-1, at 7-9.)

Plaintiff opposes

the motion on all grounds, except he concedes he cannot prove that

Defendants Laura Busbin and Marilyn Spikes did not meet the legal
standards, and, for this reason, he dismisses his claims against
them.

(Doc. 229-2, at 24.)

Thus, the THRX Defendants' motion for

summary judgment is GRANTED as it pertains to Defendants Laura
Busbin and Marilyn Spikes.

Additionally,

the

Court

already

found

Ms.

Storey

lacked

standing to bring a wrongful death claim in her individual capacity
because she was adopted before Cartee's death; thus. Plaintiff

lacks standing to bring a wrongful death claim in his capacity as
administrator of Ms. Storey's estate.

the

THRX

Storey's

Defendants'

wrongful

Furthermore,

the

motion

death
THRX

is

claim

GRANTED

in

Defendants

37

(Doc. 259, at 24.)

her
argue

as it

pertains to

individual
Keith

Thus,

Ms.

capacity.

Storey

cannot

prosecute a claim Ms. Storey never had.

(Doc. 171-1, at 13.)

The

Court agrees with this, and the THRX Defendants are GRANTED summary

judgment on any individual capacity claims for wrongful death
pending against them.

The Court addresses the remaining arguments

below.

1. Next-of-Kin Wrongful Death Claim

The THRX Defendants argue Ms. Storey could have brought a

wrongful death claim on behalf of Cartee's next-of kin, but she
failed

to

do

so.

(Doc.

171-1,

at

15-16.)

They

argue

she

erroneously brought a claim in her individual capacity instead of
for the next-of-kin and the SOL expired on June 25, 2015, so all
wrongful

death

dismissed.

claims

(Id.)

against

the

THRX

Defendants

should

be

In response. Plaintiff argues the Plaintiffs

were originally identified as Valerie Storey, individually and as
the executrix of the Estate, thus indicating she brought a claim

both individually and for Cartee's next-of-kin.
8-9.)

The Court already interpreted Ms. Storey's claims as brought

both individually and as executrix of the Estate.
16.)

(Doc. 229-2, at

(Doc. 259, at

Thus, the THRX Defendants' motion is DENIED on this ground.

The THRX Defendants also argue Ms. Storey, as executrix, lacks
standing to pursue a wrongful death claim because she failed to

allege Cartee had no surviving spouse or children at the time of
death, thus she failed to allege she, as executrix, had standing
to assert a cause of action under O.C.G.A. § 51-4-5.

(Doc. 171-

1,

facts

at

16-17.)

In

response.

Plaintiff

38

argues

the

are

undisputed that Cartee died without a living spouse, child, or
parents.

(Doc. 229-2, at 9.)

Further, he argues that if it was

a matter of simply pleading these allegations in the complaint, he
should be granted leave to amend his complaint to show Ms. Storey
had standing when she filed suit.
with Plaintiff.

(Id. at 10.)

The Court agrees

This litigation has been on-going for many years,

and the Parties agree Cartee died without a surviving spouse or
children.

(Doc. 246-1, at 129.)

Because this fact is not in

dispute, the Court excuses any pleading deficiency and lets this
claim move forward as though it was properly pleaded.

Thus, the

THRX Defendants' motion is DENIED on this ground.
2. Remaining Georgia Claims

The THRX Defendants argue Plaintiff cannot prove his Georgia
medical malpractice claims because causation in such a case must
be established through admissible expert testimony because whether
the alleged professional negligence caused Cartee's injuries is a
question of specialized knowledge beyond the ken of a lay person.
(Doc. 171-1, at 42 (quoting Zwiren v. .Thompson, 578 S.E.2d 862,
864 (Ga. 2003)).)

In

response.

qualified to testify and

Plaintiff argues

his opinions are

Dr. Potts is

reliable, and again

asserting conscious indifference and breach of the standard of
care are evidenced by what is not in the record.

(Doc. 229-2, at

25.)

''To prove a medical malpractice claim in Georgia, a plaintiff

must show: (1) the duty inherent in the health care provider-

39

patient relationship; (2) breach of that duty by failing to
exercise the requisite degree of skill and care; and (3) that this
failure is the proximate cause of the injury sustained."

Knight

V. W. Paces Ferry Hosp., Inc., 585 S.E.2d 104, 105 {Ga. Ct. App.

2003) (citing Zwiren, 578 S.E.2d at 864).

''In order to establish

proximate cause . . . the plaintiff must use expert testimony
because

the

question

of

whether

the

alleged

professional

negligence caused the plaintiff's injury is generally one for
specialized
layperson."

expert

knowledge

beyond

the

ken

of

the

average

Zwiren, 578 S.E.2d at 865 (citations omitted).

As

the Court thoroughly explained above. Dr. Potts is not qualified
to testify under Georgia law in a professional negligence case.
Because of this, the Court granted the THRX Defendants' motion to

exclude Dr. Potts' opinions as to the Georgia medical malpractice
claims.

Without an expert's testimony linking the THRX Defendants'

alleged actions to Cartee's death and illness. Plaintiff's medical

malpractice

claim

against

them

fails

because

he

cannot

prove

causation.

Furthermore, even if Dr. Potts were qualified to testify under
Georgia law. Plaintiff failed to point to specific evidence to
prove the THRX Defendants violated the standard of care or caused
Cartee injury or death.

(See Doc. 229-2.)

Plaintiff's claims still fail.

Without such evidence.

As such, the THRX Defendants are

entitled to summary judgment on the Georgia medical malpractice
claims, and their motion is GRANTED on this ground.

40

Because Plaintiff's malpractice claims encompass his wrongful
death

claims, those claims also fail and the THRX

motion for summary judgment is GRISTED as to them.
fact

all

of

Plaintiff's

causation, the

state

law

Court finds it

claims

fail

Defendants'
Based on the

for

a

lack

unnecessary to address the

of

THRX

Defendants' arguments in support of summary judgment pertaining to

the statute of limitations and fictitious party pleading.^
3. Punitive Damages

Next, the

THRX

Defendants

argue

punitive

damages

are

not

recoverable in a wrongful death action without proof of intentional
or willful acts of the Defendants; thus, the next-of-kin's wrongful
death claim should be dismissed.

(Doc. 171-1 at 27.)

Further,

they argue punitive damages would be permissible as part of the
Estate's pain and suffering claim; but, since it is barred by the
SOL,

this

claim

also

fails.

(Id.

at

27-28.)

In

response.

Plaintiff argues the Estate can recover punitive damages as part
of its claim for pain and suffering.

(Doc. 229-2, at 12.) However,

Plaintiff offers no argument in opposition regarding the next-ofkin's wrongful death claim.

(See id.)

As to the next-of-kins's claim, the Court agrees with the
THRX Defendants that punitive damages are recoverable only when

^ The

docket

reflects that

John

Does

1-20,

Physicians 1-5 are still Parties to the suit.

Jane

Does

1-10,

and

John

Does

Because fictitious party pleading

is not permitted in federal court, the Clerk is DIRECTED to TERMINATE them as
Parties.
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010)
("[F]ictitious-party pleading is not permitted in federal court." (citation
omitted)).

41

the acts of the defendant are willful or intentional.

{Doc. 171-

1, at 27 (citing Roseberry v. Brooks, 461 S.E.2d 262, 268 (Ga. Ct.

App. 1995)).)

Since there is no proof of willful or intentional

conduct by the THRX Defendants, and Plaintiff does not dispute the
motion on this basis, the THRX Defendants' motion for summary

judgment is GRANTED on this ground.
As to the Estate's claim, since the Court has granted summary

judgment on all the state law claims. Plaintiff's claim of punitive
damages also fails.

''Awards of punitive damages and attorney fees

are derivative of underlying claims; and where those claims fail,

claims for punitive damages and attorney fees also fail."

Nat'1

Emergency Med. Servs., Inc. v. Smith, 889 S.E.2d 162, 173 (Ga. Ct.

App.

2023)

(citation

Plaintiff's

omitted

underlying

claims

and

alteration

under

Georgia

adopted).
law,

the

Since
THRX

Defendants' motion for summary judgment is GRANTED as to punitive
damages too.
4. Federal Claims under § 1983 for Deliberate Indifference,
Delay, or Policy and Procedure Claims

Next, the THRX Defendants move for summary judgment, arguing
Plaintiff

cannot

his

deliberate

indifference, delay, or policy and procedure claims.

(Doc. 171-

1, at 28-41.)

prove

the

elements

of

In response. Plaintiff argues THRX, Nurse Ransom,

and Grantham did not meet the legal standards as to the medical
care of Cartee.

(Doc. 229-2, at 13.)

In reply, the THRX Defendants

argue nothing in the record supports Plaintiff's constitutional

42

claims against them.

(Doc. 246, at 13.)

The Court considers the

claims and Defendants in turn.

a. Deliberate Indifference and Delay

A pretrial detainee, like Cartee was, has a right to adequate
medical

care

Amendment.

""A

prison

substantial

under

the

due

process

clause

of

the

Fourteenth

Jackson v. West, 787 F.3d 1345, 1352 (11th Cir. 2015).

official's
risk

of

deliberate

serious

[Fourteenth] Amendment.""^

harm

indifference
to

an

to

inmate

a

known,

violates

the

Marsh v. Butler Cnty., 268 F.3d 1014,

1028 (11th Cir. 2001) (en banc) (citation omitted), abrogated in

part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544,
561-63 (2007).

To show a constitutional violation and prevail on

a claim of deliberate indifference to a medical need, a pretrial
detainee must be able to show: 'Ml) a serious medical need; (2)
the

defendant's

deliberate

indifference

to

that

need;

and

(3)

causation between that indifference and the plaintiff's injury."
Mann v. Taser Int'1 Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009)
(citation

omitted).

The

second

element,

the

deliberate

indifference requirement, has two components - one subjective and
one objective.

Caldwell v. Warden, FCI Talladega, 748 F.3d 1090,

1099 (11th Cir. 2014).

"To satisfy the subjective component, a plaintiff must
produce
evidence
that
the
defendant
"actually
(subjectively) knew that an inmate faced a substantial
See Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007) (explaining
Fourteenth Amendment governs pretrial detainee deliberate indifference claims
but that the standards

under the

Fourteenth

under the Eighth).

43

Amendment are

identical to those

risk

of

serious

harm."

To

satisfy

the

objective

component, a plaintiff must produce evidence that the
defendant "disregarded that known risk by failing to
respond to it in an (objectively) reasonable manner."
Id.

(citations

omitted

and

alterations

adopted).

For

the

subjective component, "the defendant must both be aware of facts
from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference."

Id. at

1099-1100 (citation and quotation marks omitted).

As

to

delay,

"[e]ven

where

medical

care

is

ultimately

provided, a prison official may nonetheless act with deliberate
indifference by delaying the treatment of serious medical needs."
Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010)

(citation omitted).

"Where a plaintiff is harmed by a delay in

the provision of medical care, courts consider: (1) the seriousness
of the medical need; (2) whether the delay worsened the medical
condition; and (3) the reason for the delay."

Keele v. Glynn

Cnty., 938 F. Supp. 2d 1270, 1292 (S.D. Ga. 2013) (quoting Goebert,
510

F.3d

at

1327)

(internal

quotation

marks

omitted).

"[A]ccidental inadequacy, negligence in diagnosis or treatment,
and medical malpractice are insufficient to sustain a claim of
deliberate indifference."

Id. (quoting Nimmons v. Aviles, 409 F.

App'x 295, 297 (11th Cir. 2011) (internal quotation marks omitted
and alterations adopted).

44

i. Rebecca Ransom

The THRX Defendants argue Nurse Ransom is entitled to summary

judgment because Dr. Potts testified she met the standard of care
and was not deliberately indifferent to Cartee.

38-39.)

(Doc. 171-1, at

They argue Plaintiff has not subjectively proven Nurse

Ransom had subjective knowledge of a risk of serious harm and
disregarded

that

risk

by

negligence.

(Id. at 39.)

conduct

that

was

more

than

gross

In response. Plaintiff goes through a

thorough recap of Nurse Ransom's encounter with Cartee but provides
no arguments about how she was deliberately indifferent or how she
met the subjective and objective requirements of the claim.
229-2, at 13-19.)

(Doc.

Plaintiff makes no specific arguments about how

Nurse Ransom was deliberately indifferent.

Instead, Plaintiff

conclusory states 'Mi]t is apparent that the THRX Defendants were
deliberately indifferent to the medical needs of Cartee, [and t]his
is evidenced by the complete lack of any medical care or attention
during

Cartee's

rapid

deterioration

of

Cartee's

September 17, 2012 through September 20, 2012."
reply,

the

THRX

Defendants

argue

unsupported by the undisputed facts.

Plaintiff s

health

from

(Id. at 23.)
assertions

(Doc. 246, at 13.)

In
are

The Court

agrees with the THRX Defendants.

Plaintiff failed to prove, or even argue, that Nurse Ransom
was deliberately indifferent to Cartee's serious medical need or
that

there

injuries.

was

a

causal

link

between

her

actions

and

Cartee's

Despite failing to make any arguments, the Court knows

45

Plaintiff's expert, Dr. Potts, testified Nurse Ransom ''improperly
assessed [Cartee]" but then stated in his deposition she did not
violate the standard of care by anything she did.
6; Doc. 163-3, at 138-140.)

(Doc. 123-1, at

Dr. Potts later contended that Nurse

Ransom violated the standard of care by what she did not do.

163-5, at 146.)

{Doc.

However, as outlined above, his later-offered

opinion was unsupported by any facts and evidence and failed
justify the change in testimony; thus, the Court excluded it.
Because of this, the record is void of any evidence Nurse Ransom

was deliberately indifferent when treating Cartee, or that her

actions caused him injury.

Without such evidence. Plaintiff's

claim against her for deliberate indifference fails.

Thus, the

THRX Defendants are granted summary judgment on this ground.
As to delay, the THRX Defendants also argue Plaintiff cannot
prove a

claim of deliberate

indifference

because

there is

no

evidence Nurse Ransom was aware of Cartee's medical need and that

a delay attributable to her worsened his condition.
at

40.)

Plaintiff's

contention
care."

that there

response

was

a

(Doc. 229-2, at 24.)

states,

"there

delay in Cartee

(Doc. 171-1,

cannot

be

any

receiving medical

The Court is unaware if this was

unintentional or if it is an admission by Plaintiff that this claim
fails.

In reply, the THRX Defendants argue Plaintiff failed to

present evidence that Nurse Ransom was aware of Cartee's medical
needs, and a delay of her own action worsened his condition.
246, at 16.)

The Court agrees with the THRX Defendants.

46

(Doc.

Plaintiff

has not carried his burden of showing Nurse Ransom was deliberately
indifferent,
medical

either

needs.

As

through
such.

delay

Nurse

or

Ransom

otherwise,
is

to

entitled

Cartee's

to

summary

judgment on the federal claims against her.
ii. Anisa Grantham

Turning to Grantham, the THRX Defendants argue she only saw
Cartee

once

on

September

18,

2012 after

he

returned from the

hospital, and Dr. Potts testified she met the standard of care and
was

not

deliberately

indifferent.

(Doc.

171-1,

at

37.)

In

response. Plaintiff recaps Grantham's notes and interaction with
Cartee, but like with Nurse Ransom, makes no specific arguments as
to how Grantham was deliberately indifferent.

22.)

(Doc. 229-2, at 20-

Plaintiff only presents the conclusory argument that the

THRX Defendants were deliberately indifferent to the medical needs
of Cartee.

(Id. at 23.)

Plaintiff failed to prove, or even argue, that Grantham was
deliberately indifferent to Cartee's serious medical need or that

there was a causal link between her actions and Cartee's injuries.
Once

again.

indifferent.

Dr.

Potts

testified

Grantham

(Doc. 163-3, at 271.)

was

not deliberately

Similar to Nurse Ransom, Dr.

Potts' change in opinion about Grantham was excluded because of

his failure to qualify it, connect it to the facts, or justify his
change.

(See Doc. 163-5, at 60.)

Based on this, the Court finds

Plaintiff failed to provide evidence Grantham was deliberately

47

indifferent to Cartee's medical needs.

Thus, the THRX Defendants'

motion is granted on this ground.

As to

delay,

the

THRX

Defendants

argue

Plaintiff

cannot

present evidence that Grantham was aware of Cartee's medical need,
a delay attributable to her worsened his condition, or what the
reason for the delay was.

(Doc. 171-1, at 38.)

Plaintiff's

response is the same as outlined above for Nurse Ransom, providing
no argument in opposition.

(See Doc. 229-2, at 20-23.)

As such,

and because there is no clear evidence Grantham did anything to

delay Cartee receiving medical treatment, this claim also fails,
and Grantham is entitled to summary judgment on the federal claims
against her.
b. Policy and Procedure

Next, the THRX Defendants argue THRX, as a private entity

performing a function that is traditionally the prerogative of the
state, can only be liable under § 1983 if there is a policy or
custom that resulted in a constitutional violation.

at 40.)

(Doc. 171-1,

'MA] local government may not be sued under § 1983 for an

injury inflicted solely by its employees or agents.

Instead, it

is when execution of a government's policy or custom . . . inflicts
the injury that the government as an entity is responsible under
§ 1983."

Monell v. Dep't of Soc. Servs. of City of New York, 436

U.S. 658, 694 (1978).

Plaintiff ''must prove that [TRHX] had a

'policy or custom' of deliberate indifference that led to the
violation of [Cartee's] constitutional right."

48

Craig, 643 F.3d at

1310 (citing Monell, 436 U.S. at 694). "Proof of a single incident
of unconstitutional activity is not sufficient to impose liability

against a municipality." Id. (citing City of Okla. City v. Tuttle,
471

U.S.

808,

823-24

(1985)).

"[A]

custom

must

be

such

a

longstanding and widespread practice that it is deemed authorized
by the policymaking officials because they must have known about
it but failed to stop it."

Id. (citation and quotation marks

omitted and alterations adopted).
Plaintiff argues:

It was the custom and practice of the THRX Defendants

not to[] provide adequate medical care to its inmates in
several ways. They allowed jail staff to determine when
an inmate was to be examined about tasing and after
inmates had been taken down. It was the practice of the
THRX Defendants to physically evaluate the inmates fully
clothed. There was a complete disregard for any safety
concerns of the inmates.
There was no practice of
inmates who were to be in the line of sight observation
to be actually so observed whether by these Defendants
directly or getting such information from jail staff
performing such observations.
(Doc. 229-2, at 24.)

In essence. Plaintiff repeats the facts he

takes issue with, and argues that because certain acts happened to
Cartee, it

had

to have been the custom and

practice of THRX.

However, Plaintiff points to no prior similar incidents, no actual
customs or policies, and truly no support for his allegations.
(See id.)

As outlined above. Plaintiff is required to prove a

widespread

practice,

asserted

nothing

practice of THRX.

to

and

beyond

prove

these

his

own

actions

contentions,
were

See Craig, 643 F.3d at 1310.

49

the

he

has

widespread

Plaintiff's "proof

of a policy or custom rests entirely on a single incident of
alleged unconstitutional activity" and that is ''not sufficient to

impose liability."

Id. at 1311.

Without evidence to support his

claim, THRX is entitled to summary judgment on the deliberate
indifference claims against it.

IV. PLAINTIFF'S MOTIONS

Finally, Plaintiff filed two motions: (1) motion in limine to
exclude

evidence

offered

by the

THRX

Defendants that

was

not

produced in response to discovery requests {Doc. 165); and (2)
motion to exclude expert for the THRX Defendants (Doc. 168).
THRX Defendants oppose both motions.
Plaintiff's

motion

in

limine

The

(Docs. 179, 180.)
seeks

to

prevent

the

THRX

Defendants from offering at trial any evidence that should have
been, but was not, produced in discovery.

(Doc. 165, at 2.)

Because the Court has granted the THRX Defendants judgment on all

motions pending against them, the case will not proceed to trial.
Thus, Plaintiff's motion in limine (Doc. 165) is DENIED AS MOOT.
Plaintiff also moves to exclude expert testimony from the

THRX Defendants due to a failure to designate their experts in
line with the Court's deadlines.

(Doc. 168, at 1.)

will be no trial, this motion is also DENIED AS MOOT.

50

Since there

V. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that the THRX
Defendants' motion to exclude Dr. Potts (Doc. 163) is GRANTED IN

PART AND DENIED IN PART, the THRX Defendants' motion for summary

judgment

(Doc.

171)

is

GRANTED

Plaintiff's motion in limine

IN

PART

(Doc. 165)

AND

DENIED

IN

PART,

is DENIED AS MOOT, and

Plaintiff's motion to exclude (Doc. 168) is DENIED AS MOOT.

The

Clerk is DIRECTED to ENTER JUDGMENT for Defendants, and against

Plaintiff, pursuant to this Order and the previous Orders of the
Court, TERMINATE all pending motions and deadlines, and CLOSE this
case.

ORDER ENTERED at Augusta, Georgia, thjyS"*'^f^^g^liay of March,
2024.

J. R^DAI^ALL,/CHIEF JUDGE

UNITED~pATES DISTRICT COURT
SOUTHERN

51

DISTRICT OF GEORGIA