Davison v. Georgia Correctional Health, LLC et al

Filing 111

ORDER denying 80 Motion to Exclude the Testimony of Dr. Kristine Patterson and 81 Motion for Summary Judgment. Signed by Chief Judge J. Randal Hall on 03/12/2018. (jlh)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION CINDY DAVISON, as Administrator * of the Estate of Randall * Davison, * * Plaintiff, * •k V. * CV 616-039 * STEPHEN NICOLOU, P.A., * * Defendant. * ORDER Before the Court is Defendant's motion for summary judgment (doc. 81) and Plaintiff's motion to exclude the testimony of Dr. Kristine Patterson (doc. 80). The Clerk has given Plaintiff notice of the summary judgment motion and the summary judgment rules, of the opposition, right to file and the affidavits consequences of or other default. materials in Therefore, the notice requirements of Griffith v. Wainwriqht, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), have been satisfied. For the following reasons. Plaintiff and Defendant's respective motions are DENIED. I. Randall C'GSP"). Davison (Def.'s was Answer, BACKGROUND an inmate Doc. 54, at SI Georgia 13.) In State early Prison January 2015, Mr. Davison received two tattoos from (Nursing Note, Jan. 26, 2015, Doc. 79-32). another inmate. One tattoo was on Mr. Davison's neck and one was on his forearm. (Reed Dep., Doc. 84-7, at 36.) On January 21, 2015, Mr. Davison went to the GSP medical unit complaining of chest pain. 3, at 48-49.) Mr. Davison was (Nicolou Dep., Doc. 83- examined by Defendant Stephen Nicolou, a physician assistant working at the GSP medical unit. (Id. at 9-10.) Defendant prescribed Mr. Davison anti- inflammatory medication and sent him back to his dorm. (Id. at 56-57.) Over the deteriorated. next Due two to days, what would Mr. Davison's later be condition discovered was an infection caused by his tattoos, Mr. Davison's upper chest began to turn red and his neck appeared swollen. 84-3, at 68.) GSP medical On January 23, 2015, Mr. Davison returned to the unit. (Ball Kozachyn, another inmate provider, claimed that visible and (Kozachyn Dep., Doc. described Dep., who Mr. his neck Doc. was 82-1, waiting Davison's as ''red at to be infection and swollen four times its normal size on one side . . . ." at 67.) 34-35.) seen was to by a plainly three or (Kozachyn Dep. Mr. Davison was called into the waiting room and then told he could not be seen until the following Monday. 34.) Paul (Id. at Instead of returning to his cell, Mr. Davison slipped into Defendant's office. (Id. at 36.) Defendant and nurse Calvin Ball were in the office when Mr. Davison entered and ""demand[ed] antibiotics." {Ball Dep. at 32; Thrift Dep., Doc. 83-4, at 35.) The meeting lasted a matter of seconds as Officer Stacy Thrift, who was at the other end of the hall, removed Mr. Davison and placed him in a holding cell for ""being disrespectful." Dep. at 34, 37.) Mr. Davison. (Thrift Defendant provided no additional treatment to (Nicolou Dep. at 43.) On Monday, January 26, 2015, Mr. Davison was brought back to the medical unit by wheel chair. 58). Nurse practitioner Timothy (Oates Dep., Doc. 79-33, at Miller recognized that Mr. Davison was suffering from an infection and needed to go to a hospital. (Killer transferred to Meadows Vidalia, Georgia. 6.) Dep., Doc. 83-2, Regional at Medical 34.) He Center was then (""MRMC") in (MRMC Physician Documentation, Doc. 79-6, at On February 8, 2015, suffering from respiratory and renal failure, Mr. Davison was flown to Atlanta Medical Center. (Atlanta Med. Ctr. Discharge Summary, Feb. 15, 2015, Doc. 79-8, at 1.) He never February 15, 2015. recovered from his infection and died on (Id.) On April 4, 2016, Cindy Davison--Randall Davison's sister and the administrator of his estate--brought the present action against Georgia and Defendant Correctional for violating Health, Mr. Sergeant Davison's Dedrick Eighth Anthony, Amendment rights, pursuant to 42 U.S.C. § 1983.^ (Doc. 1.) Defendant now moves for summary judgment and argues that he is entitled to qualified immunity. II. LEGAL STANDARD A motion for summary judgment will be granted if there is no disputed material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Facts are material if they could affect the results of the case. Lobby, Inc., 477 U.S. 242, 248 (1986). The facts in the light most favorable to the draw all inferences in its favor. Ltd. V. Zenith Radio Corp., 475 Anderson v. Liberty court must view non-moving party and Matsushita Elec. Indus. Co., U.S. 574, 587 (1986). The movant initially bears the burden of proof and must demonstrate the absence of a disputed material Catrett, 477 U.S. 317, 323 (1986). Celotex Corp. v. The movant must also show no reasonable jury could find for the the essential elements. fact. non-moving party on any of Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant carries its burden, the non-moving party must come forward with significant, probative evidence showing there is a material fact in dispute. Id. at 1116. The non-movant must respond with affidavits or other forms of evidence provided ^ Plaintiff subsequently dropped Health and Mr. Anthony. her claims against (Docs. 22, 78.) Georgia Correctional by Federal Rule of Civil Procedure 56. non-movant cannot survive summary judgment pleadings or conclusory statements. 1032, 1033-34 (11th Cir. 1981). Id. at 1116 n.3. by relying The on its Morris v. Ross, 663 F.2d After the non-movant has met this burden, summary judgment is granted only if "the combined body of evidence is still such that the movant would be entitled to a directed verdict at trial - that is, reasonable jury could find for the non-movant." such that no Fitzpatrick, 2 F.3d at 1116. III. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Defendant because immunity he claims is that entitled protects summary judgment to qualified government officials is appropriate immunity. Qualified from suit so long their conduct does not violate clearly established law. as Morris V. Town of Lexington, 748 F.3d 1316, 1321 n.15 (11th Cir. 2014). The defendant must first discretionary authority. show he was the plaintiff appropriate. Lee v. within his Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). and acting must show Ferraro, 284 The burden then shifts, qualified F.3d immunity 1188, 1194 is not (11th Cir. 2002). To survive summary judgment, the plaintiff must show the officer's conduct (1) violated a constitutional right that (2) was clearly Clearly United established established States when rights Supreme are Court, Georgia Supreme Court. the violation those the set by Eleventh occurred. precedent Id. the and Circuit, of the Snider v. Jefferson State Cmty. Coll., 344 F.Sd 1325, 1328 (llth Cir. 2003). The case does not need to be directly on point and only needs to give the defendant fair notice that his conduct was unconstitutional. Mitello v. Sherriff of the Broward Sheriff^s Office, 684 F. App'x 809, 813 (llth Cir. 2017). acting in his Plaintiff does not dispute that Defendant was discretionary authority. Therefore, Plaintiff must show that Defendant violated Mr. Davison's Eighth Amendment rights and that those rights were clearly established. A. Constitutional Violation There is constitutional evidence 2007). the violation. prisoner's serious Amendment. in record to Deliberate medical need is a support finding indifference violation to of the a a Eighth Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (llth Cir. To succeed plaintiff must defendant was show: on a (1) deliberately deliberate a serious indifferent indifference medical to that that indifference caused the plaintiff's injury. claim, need; need; Id. the (2) the and (3) 1. The serious need first element medical ''''is one Serious Medical Need of a need—asks that has deliberate the indifference to plaintiff been claim— medical diagnosed show by a her physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. '" Goebert, 510 F.3d at 1326 (quoting Hill v. Dekalb Reg'1 1994), Youth Pet. Ctr.^ 40 F.3d 1176, 1187 (11th Cir. overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002)); Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) ("[T]he medical need must be one that, if left unattended, poses a substantial risk of serious harm."). Defendant medical need argues that Mr. because his Davison infection was physician before he met with Defendant. based upon standard. a misunderstanding Deciding whether a of did not have a serious diagnosed by a Defendant's position is the prisoner not serious had a medical serious need medical need is an objective inquiry that focuses on the ailment itself. Mr. Davison suffered from shortly before his death. Report, Doc. 80-9, at 11.) suffered from frequently (Heard Rep. at 3.) an infection, which was diagnosed (Heard Dep., Doc. 84-4, at 24; Heard The bacterial infection Mr. Davison causes death if it is not treated. Thus, Plaintiff has shown there is evidence in the record to support a finding that Mr. Davison had a serious medical need. 2. Deliberate Indifference Defendant demonstrating Davison's also he acted serious indifference, a disputes with medical plaintiff whether there deliberate any evidence indifference need. must is To demonstrate: show (a) to Mr. deliberate the defendant was subjectively aware of the risk of harm; and (b) disregarded that risk (c) by engaging in conduct that was more than grossly negligent. Goebert, 510 F.3d at 1327. be aware of facts from ''The official must both which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). The defendant will not be held responsible for failing to take action if "he should have perceived the risk but did not . . . ." Id., inferred prison at when 838. the official Nevertheless, risk had was the subjective obvious. requisite Id. at knowledge knowledge 842. of a can "Whether be a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence."^ Id. ^ Plaintiff argues that Defendant waived his opportunity to challenge whether he knew about Mr. Davison's serious medical need by not raising that issue in his motion for summary judgment. Certainly, arguments raised for the first time in a reply brief may be deemed waived. Herring v. Sec'y, Dep't of Corr., 379 F.3d 1338, 1342 (11th Cir. 2005); Milwood-Jones v. Holder, 2016 WL 1189494, at *8 n.5 (S.D. Ga. Mar. 22, 2016). Nonetheless, this argument a. Subjective Knowledge Plaintiff points to evidence in the record that shows the symptoms of Mr. Davison's infection were obvious before he met Defendant on January 23, 2015. Shadaya Latimore, who was a guard in Mr. Davison's dormitory, noticed Mr. Davison's "swollen red neck" on January 23, 2015, at 5:10 PM, several hours after his meeting with Defendant. Paul Kozachyn dormitory, and Tavis claimed that (Latimore Dep., Doc. 84-8, at 37.) Gates, the inmates infection was moments before^ Mr. Davison met Defendant. 67; Gates Dep., Doc. 84-2, at 27.) in Mr. Davison's plainly visible (Kozachyn Dep., at Defendant argues that because Mr. Kozachyn and Mr. Gates do not identify a specific date and Gfficer Latimore did not see Mr. Davison's symptoms until after his meeting with Defendant, Plaintiff has not shown subjective knowledge. However, from the consistent description by Mr. Kozachyn, Mr. Gates, and Gfficer Latimore, a jury could reasonably conclude before his concerns an meeting essential that with Mr. Davison's Defendant on symptoms January element of Plaintiff's case; 23, were visible 2015. Plaintiff could not The have been surprised by Defendant's challenge. Moreover, Plaintiff had a fair opportunity to respond, as she did in her sur-reply. Accordingly, Plaintiff was not prejudiced by Defendant's late challenge. ^ Defendant claims that a disagreement between two of Plaintiff's witnesses essentially negates their evidentiary value. Unlike Mr. Kozachyn, Jerry Reed, who helped walk Mr. Davison to medical on January 23, claims that the infection on Mr. Davison's neck did not appear until January 25. (Reed Dep. at 31.) Plaintiff has presented two different witnesses who do not agree o.n a material fact. Granting summary judgment because of such a dispute would require weighing evidence, which is impermissible at this stage. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Indeed, a jury could find Mr. Kozachyn's testimony more believable than Mr. Reed's. obviousness of Mr. Davison's medical need could support a finding of subjective knowledge. Defendant with Mr. also Davison subjectively aware Defendant without that precludes of Mr. that explains condition maintains he the finding Davison's could performing brevity a that of his meeting Defendant serious not medical diagnose Mr. medical evaluation was need. Davison's and diagnosis was a prerequisite to subjective knowledge. such a Defendant asserts that Plaintiff's expert, Henry Heard, P.A., supports the necessity of sub-element a of diagnosis. a However, deliberate the subjective indifference claim knowledge is not so narrowly defined as to require a medical diagnosis. Moreover, while be to Mr. Heard confirmed that a full evaluation accurately diagnose Mr. Davison, Mr. Heard would went on needed to say that ''any reasonable individual can tell an infection by looking at it" and that such a conclusion can be made without performing an exam. both of (Heard Dep. at 40, 52.) Mr. Heard's statements and A reasonable jury could hear conclude that while a full evaluation would be ideal before a provider begins treatment, a physician assistant would know Mr. Davison was suffering from an infection just by looking at him. b. Defendant also Deliberate Disregard argues that there is disregarded Mr. Davison's serious medical need. 10 no evidence he To satisfy the second sub-element of deliberate indifference—deliberate disregard—a plaintiff must show the defendant failed to take reasonable measures to avoid the harm. Farmer^ 511 U.S. at 847. Even if the defendant knew about the risk, he will not be held liable if he acted reasonably, even if the harm was not avoided. Pourmoqhani-Esfahani 2010). v. Nevertheless, Glee, 625 disregard single episode of misconduct. F.3d can be 1313, 1317 (11th established Cir. through a As with the other sub-elements, [d]isregard of the risk is . . . a question of fact that can be shown by standard methods." Defendant claims Thrift prevented Goebert, 510 F.3d at 1327. because him from the record shows providing treatment to Plaintiff cannot show deliberate disregard. that Mr. Officer Davison, Plaintiff responds that Georgia Department of Corrections (""GDOC") Policy VHOl-0002 (Oct. 1, 2012), which the Court takes notice of pursuant to Federal Rule of Evidence 201(c)(1), gave Defendant authority to ensure that ""security considerations do not compromise decisions and actions regarding inmate/prisoner." removed Mr. necessary (Doc. 95-1, at 2.)'^ Davison from the health care for any Although Officer Thrift clinic. Defendant retained Defendant argues that this evidence should not be considered because Plaintiff failed to disclose the policy during discovery. While Federal Rule Civil Procedure 26(a)(3) demands disclosure of documents in the party's possession, is well established that discovery need not be required of documents of public record which are equally accessible to all parties.'" Thomas v. City of Jacksonville, 2014 WL 12708970, at *1 (M.D. Fla. Jul. 16, 2014) (quoting Sec. & Exch. Comm'n v. Samuel H. Sloan & Co., 369 F. Supp. 994, 995 (S.D.N.Y. 1973)). Because the GDOC policy is public record, exclusion is not appropriate. 11 authority to provide treatment and therefore could be found to have disregarded the risk that faced Mr. Davison. c. Greater than Grossly Negligent Conduct The final sub-element of deliberate indifference involves demonstrating that the defendant's conduct amounted to more than gross negligence. To rise to the level of an Eighth Amendment violation, the care must be ''so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." (llth Cir. 1986). effective Rogers v. Evans, 792 F.2d 1052, 1058 This includes providing an easier but less treatment, providing treatment that is grossly inadequate, or providing such minimal care that it amounts to no treatment at all. McElligott v. Foley, 182 F.3d 1248, 1255 {llth Cir. 1999). Defendant's position that there is no evidence to support finding disregard by more than gross negligence rests entirely on distinguishing gross negligence the was facts found. indifference so narrowly. here from Courts do cases not where define more than deliberate Although the facts in Marsh v. Butler Cnty., 238 F.3d 1014 (llth Cir. 2001), are distinguishable from this case. Marsh established that doing nothing in response to a serious medical negligent. need Marsh, is 238 conduct F.3d at 12 that 1029. is more The than grossly evidence shows Defendant did not provide removed from his office. treatment after Mr. (Nicolou Dep. at 43.) Davison was If a jury found Defendant knew Mr. Davison was suffering from an infection, it could conclude that his decision to provide no further treatment was more than gross negligence. Plaintiff Davison has appeared suffering from provided in an evidence Defendant's infection showing office, that when Mr. Davison Mr. was Defendant notwithstanding the brevity of their meeting. 68; Heard Dep. at 52). that recognized (Kozachyn Dep. at Despite his knowledge. Defendant failed to provide treatment, which could constitute disregard by more than gross support negligence. the Accordingly, second element of there is evidence Plaintiff's to deliberate indifference claim. 3. Causation As the last element of a deliberate indifference claim, "[a] plaintiff must also show that the constitutional violation caused his injuries." shown by the Marsh, 268 defendant's constitutional violation. does not record dispute contains summary judgment. F.3d at 1028. personal This can participation Goebert, 510 F.3d at 1327. causation, sufficient and the evidence Court of is in the Defendant satisfied causation be to that survive As previously established, although Defendant 13 did not remove Mr. Davison from his office, he Theft's conduct. Defendant's acquiescence knew of Officer to removal may establish personal participation. Mr. Davison's See Carswell v. Bay Cty, 854 F.2d 454, 457 n.3 (11th Cir. 1988); Camps v. City of Warner Robins, 822 F. Supp. 724, 735 (M.D. Ga. 1993). the precipitous nature of an Given untreated bacterial infection, a jury could find Defendant's delay or refusal to provide adequate treatment caused Mr. Davison's suffering and death. (See Heard Dep. at 33.) Plaintiff has identified evidence in the record support a deliberate indifference cause of action. that would A bacterial infection, like the one Mr. Davison succumbed to, is deadly if left untreated and constitutes a serious medical need. evidence to support an symptoms were obvious. medical could need. find If that a inference Defendant factfinder Defendant's that because knew of Mr. confirmed failure to Mr. There is Davison's Davison's serious these elements, provide it immediate treatment led to Mr. Davison's death. B. Clearly Established Right Plaintiff argues that Defendant is not entitled to qualified immunity because there is evidence in the record that Defendant knew of Mr. Davison's serious medical need. The law is clearly established "that knowledge of the need for medical care and an intentional refusal to provide that care constitutes 14 deliberate indifference." (11th Cir. Amendment 1995). Adams v. Poag^ Moreover, jurisprudence "[a] . . . is 61 F.3d 1537, 1543-44 core that principle prison of Eighth officials with knowledge of the need for care may not, by failing to provide care, delaying care, or providing grossly inadequate care, cause a prisoner to needlessly suffer the pain resulting from his or her illness." McElligott, 182 F.3d at 1257. Thus, Defendant's entitlement to qualified immunity depends on whether he knew of Mr. Davison's serious medical need and intentionally refused to provide treatment. Because there is evidence in the record to support such a finding. Defendant's motion for summary judgment is DENIED. IV. PLAINTIFF'S MOTION TO EXCLUDE DR. KRISTINE PATTERSON'S TESTIMONY Plaintiff moves to exclude the testimony of Kristine Patterson, M.D., who will testify as to when Mr. Davison began showing symptoms of an infection. opines that Mr. Davison did not Specifically, Dr. Patterson begin showing symptoms of an infection until after January 21, 2015. (Patterson Report, Doc. 80-8, Evidence courts at 5.) act testimony. as Under Federal ""gatekeepers" Daubert v. U.S. 579, 596-97 (1993). Rule to Merrell of ensure Dow the 702, quality Pharmaceuticals, district of expert Inc., 509 While performing this function, courts must confirm ""(1) the expert is qualified to testify competently 15 regarding the methodology by sufficiently matters which he intends the reliable expert as to address; reaches determined by his the (2) the conclusions sort of is inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application specialized expertise, determine fact Chems., a Inc., 158 in to scientific, understand issue." F.3d of 548, City 562 the of technical, evidence Tuscaloosa (11th Cir. or v. or to Harcros 1998). A court performing this function must keep in mind that the goal is not to determine the persuasiveness of the evidence. Quiet Tech. DC8, Inc. V. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). Some weaknesses in expert testimony are better handled through cross-examination rather than exclusion. Plaintiff claims that because Dr. Id. Patterson failed to include evidence that contradicted her conclusions, she has not reliably applied her differential Plaintiff explains that because there diagnosis methodology. are "more than a dozen" pieces of evidence that suggest Mr. Davison's arm was infected before he was admitted to MRMC, Dr. Patterson should not be allowed to claim there was no such infection. However, none of the contradicts evidence Patterson's Plaintiff findings. "INFECTED ARM" as Summary, source of Doc. his 18, Mr. at illness cites For inherently example, the MRMC file Davison's "Stated Complaint." 8.) could What be 16 Mr. Davison reasonably Dr. lists (MRMC ED claimed disregarded was the by Dr. Patterson whole. why, after Dr. 303 Patterson despite (Patterson F. considering this Plaintiff s also gave evidence, a her medical reasonable conclusions records explanation remained Dep., Doc. 84-9, at 51.) See also Wilson App'x 708, 714 (11th Cir. 2008). as The a for viable. v. Taser, fact that Dr. Patterson gave greater weight to certain pieces of evidence than others See does Jones not v. demonstrate Otis Elevator that Co., her 861 methods F.2d 655, are unreliable. 662 (11th Cir. 1988) (while an expert's testimony must be supported by facts, "'absolute would be exclusion. certainty better is not required"). addressed Accordingly, Plaintiff's through cross-examination Plaintiff's motion to concerns than exclude Dr. Patterson's testimony is DENIED. V. CONCLUSION Upon the foregoing. Defendant's Motion for Summary Judgment (doc. 81) and Plaintiff's Motion to Exclude the Testimony of Dr. Kristine Patterson's (doc. 80) are DENIED. ORDER ENTERED at Augusta, Georgia, this /^3^^ay of March, 2018 . ;f judge UNITED' STATES DISTRICT COURT [ERN DISTRICT OF GEORGIA 17

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