Zavala v. Damon et al
Filing
191
MEMORANDUM OPINION AND ORDER Signed by the Honorable Martha M. Pacold on 3/29/2021:(rao, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RODERICK ZAVALA (K-68842),
Plaintiff,
v.
Case No. 17-cv-03042
GHALIAH OBAISI, INDEPENDENT
EXECUTOR OF THE ESTATE OF
SALEH OBAISI, and WEXFORD
HEALTH SOURCES, INC.,
Judge Martha M. Pacold
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Roderick Zavala, a prisoner at Stateville Correctional Center,
injured his hand while working at the prison. Zavala brought this suit under 42
U.S.C. § 1983, alleging that his post-surgery medical treatment was constitutionally
deficient. Defendants Obaisi and Wexford move to exclude Zavala’s expert witness.
[130]. Each defendant separately moves for summary judgment. [122], [126]. For
the following reasons, defendants’ Daubert motion [130] is denied, Obaisi’s motion
for summary judgment [122] is granted in part and denied in part, and Wexford’s
motion for summary judgment [126] is granted.
Background
The court views the following facts, which are undisputed unless otherwise
noted, in the light most favorable to Zavala. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
At all times relevant to this suit, Zavala has been a prisoner at Stateville.
See OSOF, [124] ¶ 1. 1 Wexford is a private corporation that contracts with the
Bracketed numbers refer to docket entries and are followed by the page or paragraph
number. Page numbers refer to the CM/ECF page number. Citations to the parties’ Local
Rule 56.1 Statements of Fact are identified as follows: “OSOF” for Obaisi’s Statement of
Facts, [124]; “WSOF” for Wexford’s Statement of Facts, [128]; “ZSOF” for Zavala’s
Statement of Additional Facts, [159] § III at 24–30 and [162] § III at 16–23; “Z’s Resp.
WSOF” for Zavala’s response to Wexford’s Statement of Facts, [162] § II at 2–16; “Z’s Resp.
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Illinois Department of Corrections (IDOC) to provide medical treatment at
Stateville. WSOF, [128] ¶ 2. Defendant Ghaliah Obaisi is the Independent
Executor of the Estate of Dr. Saleh Obaisi and was substituted as a party for Dr.
Obaisi after Dr. Obaisi’s death in December 2017. [66] at 1 n.1 (citing [30], [35]).
Dr. Obaisi “served as Stateville’s Medical Director from August 2012 until his death
in December 2017.” Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 957 (7th
Cir. 2019).
On November 1, 2016, Zavala severely crushed his left hand and fingers in a
soap machine while working at Stateville’s “soap shop,” an onsite soap factory
inside the prison. OSOF, [124] ¶¶ 4–7. Zavala sustained multiple finger fractures,
complete transection (cutting) of certain sensory nerves causing loss of sensation,
and injuries to soft tissue, blood vessels, artery vascular structure, and tendons.
OSOF, [124] ¶ 9. That day, Zavala was taken to St. Joseph’s Medical Center for
evaluation and then transferred to Loyola University Medical Center for further
treatment. OSOF, [124] ¶¶ 10–11.
On November 2, Dr. Norman Weinzweig performed surgery at Loyola to
repair Zavala’s injuries. OSOF, [124] ¶ 12. Dr. Weinzweig was able to repair
Zavala’s “ulnar slipped tendon” and testified that he “achieved whatever could be
achieved during surgery.” Z’s Resp. OSOF, [159] ¶ 15. The next day, November 3,
Dr. Weinzweig discharged Zavala with prescriptions for antibiotics (to prevent
infection) and Norco (for pain) and asked for a follow-up in one week. OSOF, [124]
¶ 17. Dr. Weinzweig gave Zavala a temporary splint to wear and recommended that
a custom, thermoplastic (specialized, individually fabricated) splint be ordered.
OSOF, [124] ¶¶ 17, 27.
Dr. Obaisi participated in Wexford’s “collegial review” process for approving
outside referrals. Z’s Resp OSOF, [159] ¶ 18; ZSOF, [162] ¶17. On November 7,
2016, Dr. Obaisi requested approval for all follow-up visits with Dr. Weinzweig
through January 31, 2017, and Wexford approved that request. OSOF, [124] ¶ 21.
On November 9, 2016, Zavala returned to see Dr. Weinzweig for a postoperative visit. WSOF, [128] ¶ 41. At this visit, Dr. Weinzweig reiterated that
Zavala needed a thermoplastic splint and ordered that Zavala return to the clinic
for a follow-up appointment in two weeks. WSOF, [128] ¶ 18. Dr. Weinzweig also
OSOF” for Zavala’s response to Obaisi’s Statement of Facts, [159] § II at 2–24; and “O’s
Resp. ZSOF” for Obaisi’s response to Zavala’s Statement of Additional Facts, [176]. After
seeking and receiving leave to amend their Statements of Facts to include citations with
specificity, [167], [169], Obaisi and Wexford also each filed an Amended Statement of Facts,
[173], [175], but the parties have neither cited nor relied on the amended statements.
Accordingly, the court, like the parties, cites the original statements of fact where
applicable.
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ordered “complete compliance” with occupational therapy two to three times per
week. Z’s Resp. WSOF, [162] ¶ 58.
On November 14, 2016, Dr. Obaisi reviewed and signed his own annual
performance evaluation, which noted that Dr. Obaisi’s provision of “offsite care” was
“over budget,” and accordingly gave him a “[d]oes not meet expectations” grade for
his ability to “control expenses, conserve supplies, and operate within budget.”
ZSOF, [162] ¶¶ 13–14. The next day, Dr. Obaisi discussed Zavala’s occupational
therapy during collegial review. ZSOF, [162] ¶ 19. He sought and received
approval for only a single occupational therapy evaluation by a certified hand
specialist—not the two to three sessions per week that Dr. Weinzweig had ordered.
OSOF, [124] ¶ 50; ZSOF, [162] ¶ 19. Additionally, Zavala did not return to see Dr.
Weinzweig until January 25, 2017, eleven weeks after the November 9, 2016 visit
(as opposed to the two-week interval Dr. Weinzweig had ordered). ZSOF, [162]
¶ 26.
On December 9, 2016, Zavala had his single occupational therapy evaluation
with Ms. Katherine Southworth. OSOF, [124] ¶ 50. Ms. Southworth recommended
therapy two to three times per week and gave Zavala a home exercise program to
complete at Stateville. OSOF, [124] ¶ 51; O’s Resp. ZSOF, [176] ¶ 15; Z’s Resp.
WSOF [162] ¶ 55. Ms. Southworth also fitted Zavala with a preliminary brace after
Zavala’s delay in beginning therapy. OSOF, [124] ¶ 51; O’s Resp. ZSOF, [176] ¶ 15.
On December 27, 2016 (eight weeks after surgery, and eighteen days after visiting
Ms. Southworth), Zavala began therapy with Mr. Jose Becerra, a physical therapist
(not an occupational therapist) at Stateville. Z’s Resp. OSOF, [159] ¶ 52.
Dr. Obaisi ordered Zavala a thermoplastic splint. OSOF, [124] ¶ 30. 2
However, on November 22, 2016, Dr. Obaisi received notice that Zavala was not
permitted to have this splint for security reasons—at least not outside the
infirmary. OSOF, [124] ¶¶ 29–31; Z’s Resp. OSOF, [159] ¶¶ 29–31. The parties
dispute whether Zavala would have been allowed to use the thermoplastic splint in
the infirmary. Defendants contend that Dr. Obaisi unsuccessfully attempted to
have IDOC let Zavala use the thermoplastic splint in the infirmary. OSOF, [124]
¶ 35. But there is testimony in the record indicating that Zavala would have been
allowed to use the thermoplastic splint there. See [128] Exh. 7 at 35 (sealed); 3 Z’s
Resp. OSOF, [159] ¶ 31. In any case, the parties agree that no one informed Zavala
that the splint arrived or that he was permitted to wear it inside the infirmary.
OSOF, [124] ¶ 34; Z’s Resp. OSOF, [159] ¶ 18. Six weeks later, on January 3, 2017,
2
The record does not make clear when this splint was ordered.
When the court refers to a sealed document, it attempts to do so without revealing any
information that could reasonably be deemed confidential. The court discusses information
from these documents only to the extent necessary to explain the path of the court’s
reasoning. See Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).
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Dr. Obaisi ordered a security-compliant (but not thermoplastic) brace. 4 OSOF, [124]
¶ 33; Z’s Resp. OSOF, [159] ¶ 33.
Wexford’s policies state that dressings for a laceration involving tendons and
nerves should be changed every six hours. ZSOF, [162] ¶ 16. The parties agree that
at a minimum, Zavala’s dressings were not changed between November 9 and
December 9. ZSOF, [162] ¶ 32; O’s Resp. ZSOF, [176] ¶ 27. Additionally, Zavala’s
sutures were not removed until December 27, eight weeks after surgery, by
Stateville physician Dr. Aguinaldo. ZSOF, [162] ¶ 33; Z’s Resp. OSOF [159] ¶ 70.
Zavala submitted to IDOC a series of grievances about these delays and also
raised with Dr. Obaisi various aspects of the course of post-surgical treatment
detailed above. On November 21, 2016, Zavala wrote to Dr. Obaisi:
Every time I move my hand, I can feel a burning sting in my fingers from
the stitches. I can feel the pain from under the skin, inside my fingers.
Also, my fingers are feeling more stiff and unmovable. I should have
went out last week to see a certified hand therapist. I am supposed to go
back to [L]oyola for follow up this week. My fingers hurt bad; please see
me and let me know something.
ZSOF, [159] ¶ 33. A week later, on November 28, Zavala wrote to Dr. Obaisi again:
“I can’t take this pain any longer. Please send me out to see the Surgeon, or the
certified hand therapist. My fingers hurt bad from these stitches. . . . My fingers
are numb, and feel frozen stiff.” ZSOF, [159] ¶ 34. On December 1, Zavala wrote in
a grievance filed with IDOC:
I . . . have not been sent to see Dr. Weinzweig for further follow-up care.
My stitches, nor bandages, have not been removed. My wounds have
not been cleaned. It has been 1 month since my surgery and I can feel
the pain of the stitches in my fingers every time I move my hand. My
fingers have become frozen stiff, and the pain is excruciating. I fear that
if I am not seen by a certified hand therapist my fingers will become
stuck in the upright position, and my hand strength will become useless.
ZSOF, [162] ¶ 31. In his deposition, Zavala testified that he showed his wound to
Dr. Obaisi on December 21 and asked Dr. Obaisi “why wouldn’t he send me out to
see a certified hand therapist,” to which Dr. Obasi replied, “I know you need
therapy, but I can’t send you out.” [148] at 32 (sealed); ZSOF, [162] ¶ 30. And on
The record is not clear as to whether Zavala received or Dr. Obaisi ordered the security
compliant brace on January 3. Compare Z’s Resp. OSOF [159] ¶ 18 (ordered) with id. at
¶ 33 (received). Construing the record in the light most favorable to Zavala, the
nonmovant, the court assumes that the brace was ordered on January 3.
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December 28, Zavala submitted another grievance to IDOC that recited recent
conversations with Dr. Obaisi, Mr. Becerra, and Dr. Aguinaldo. ZSOF, [162] ¶ 34. 5
On March 3, 2017, Dr. Weinzweig charted that Zavala was doing well, but
had diminished range of motion and stiffness, and was developing a contracture in
four fingers. ZSOF, [159] ¶ 38. On April 26, Zavala had little ability to flex at least
one finger, had contractures in at least one finger, and could “potentially injure
flexor tendons esp LRF[ 6] with worsening of patient’s function.” O’s Resp. ZSOF,
[176] ¶ 39; see also ZSOF, [159] ¶ 39.
Zavala filed suit in 2017, bringing individual claims against Dr. Obaisi and
two individual IDOC defendants (Warden Randy Pfister and Corrections Officer
Mark Damon) and a Monell claim against Wexford. [1]. Wexford moved to dismiss
the Monell claim [42]; the court denied that motion. [66]. Zavala and the IDOC
defendants settled their claims. Defendants Obaisi and Wexford now move to
exclude Zavala’s expert witness. [130]. Each defendant separately moves for
summary judgment. [122], [126].
Discussion
I.
Defendants’ Daubert Motion
The court begins with defendants’ motion to bar Zavala’s expert witness,
Dr. Seth Levitz. [130]. “The admission of expert testimony is governed by Federal
Rule of Evidence 702 and the principles outlined in Daubert [v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993)].” Bielskis v. Louisville Ladder, Inc.,
663 F.3d 887, 893 (7th Cir. 2011). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if: (a) the expert’s scientific, technical, or other specialized knowledge
When Zavala first filed this case, there was some indication that he may have filed
additional IDOC grievances on November 10 and November 28. See [6] at 2–3. However,
Zavala does not allege that IDOC grievances were filed on these dates in any of his
summary judgment briefs or statements of fact, nor do copies of these grievances appear in
Zavala’s list of exhibits. See [159] at 31. The court was able to locate copies of these two
grievances elsewhere in the record, see [32-8], [32-10], and it appears that these grievances
concerned only the accident itself and the management of the soap machine workstation;
the grievances did not concern Zavala’s post-accident medical care. In any case, there is no
evidence in the record from which a reasonable trier of fact could conclude that Zavala filed
grievances related to his medical care with the IDOC on either November 10 or November
28.
5
“LRF” may stand for “left ring finger,” but the record does not make clear the meaning of
this acronym.
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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 has reliably applied the principles and methods to the facts of the
case.
Before admitting expert testimony, the court must determine whether the
proposed testimony is relevant and reliable. Smith v. Ford Motor Co., 215 F.3d 713,
718 (7th Cir. 2000). This requires a three-step analysis. Ervin v. Johnson &
Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007).
First, “the witness must be qualified ‘as an expert by knowledge, skill,
experience, training, or education.’” Id. (quoting Fed. R. Evid. 702). “Whether a
witness is qualified as an expert can only be determined by comparing the area in
which the witness has superior knowledge, skill, experience, or education with the
subject matter of the witness’s testimony.” Gayton v. McCoy, 593 F.3d 610, 616 (7th
Cir. 2010) (quoting Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990)).
Second, the expert’s reasoning or methodology must be scientifically reliable.
Ervin, 492 F.3d at 904. District courts have broad latitude when deciding whether
an expert’s testimony is reliable. Bryant v. City of Chicago, 200 F.3d 1092, 1098
(7th Cir. 2000). Daubert set forth the following nonexhaustive factors that may be
pertinent for determining reliability: “1) ‘whether [the expert’s theory] can be (and
has been) tested’; 2) ‘whether the theory or technique has been subjected to peer
review and publication’; 3) ‘the known or potential rate of error’; and 4) ‘general
acceptance’ among the relevant scientific community.” Smith, 215 F.3d at 719
(quoting Daubert, 509 U.S. at 593–94) (alterations in Smith); see also Timm v.
Goodyear Dunlop Tires N. Am., Ltd., 932 F.3d 986, 993 (7th Cir. 2019).
Third, the testimony must be relevant; that is, it must assist the trier of fact
in understanding the evidence or determining a fact at issue. Ervin, 492 F.3d at
904.
While the district court serves as a “gatekeeper,” it must be mindful that “the
key to the gate is not the ultimate correctness of the expert’s conclusions,” but “the
soundness and care with which the expert arrived at her opinion.” Schultz v. Akzo
Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013). The party offering expert
testimony bears the burden of proving by a preponderance of the evidence that the
testimony satisfies Rule 702. Lewis v. CITGO Petrol. Corp., 561 F.3d 698, 705 (7th
Cir. 2009). Determinations on admissibility, however, “should not supplant the
adversarial process; ‘shaky’ expert testimony may be admissible, assailable by its
opponents through cross-examination.” Gayton, 593 F.3d at 616.
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Zavala hired Dr. Levitz, an orthopedic surgeon specializing in hand and
upper extremity surgery, to provide expert testimony about Zavala’s condition and
treatment. In preparing his expert report, Dr. Levitz reviewed (1) Zavala’s medical
records; (2) outpatient therapy notes from Ms. Katherine Southworth; (3) Wexford
Health Orthopedic Surgery Guidelines; (4) Zavala’s Stateville grievances;
(5) Zavala’s letters to Dr. Obaisi and Stateville’s Warden; (6) Stateville’s November
1, 2016 incident reports; and (7) deposition transcripts of Zavala, Dr. Weinzweig,
and Dr. Arthur Funk, Wexford’s Rule 30(b)(6) corporate representative. See [154] at
5, [155] at 5–6.
In the Daubert motion, [130] at 2–3, defendants challenge the following three
opinions from Dr. Levitz’s report: (1) If Zavala had worked with an occupational
hand therapist (which differs from a physical therapist), he “likely would have
received additional treatments during the therapy program, including splinting,
that would have given him a better chance of achieving a more functional outcome.”
[154] at 4 (sealed). (2) Delays in Zavala’s care “increased the likelihood of the
patient experiencing more stiffness in the fingers, loss of motion/strength in the
hand, and ultimately loss of function in the hand.” [154] at 4. (3) “After an injury of
this nature, it would be expected that a patient may have functional limitations due
to stiffness, sensitivity, and weakness. However, with proper wound care, pain
control, splinting, and therapy, these limitations can be minimized, giving the
patient the best opportunity for having a successful recovery. It is in my opinion
that given the delay in treatment, the likelihood of Mr. Zavala having a successful
surgical outcome was decreased. These functional limitations are likely to be
permanent for Mr. Zavala.” [154] at 5.
Defendants do not challenge Dr. Levitz’s qualifications. See [165] at 3; [174]
at 2. Instead, they primarily challenge the reliability of Dr. Levitz’s opinions. Their
chief contention is that Dr. Levitz’s failure to conduct an independent examination
of Zavala renders his opinions unreliable, since Dr. Levitz could only have
“speculated on [the] documents provided to him” without using “any form of reliable
methodology that he uses on his own patients.” [130] at 6. Defendants contend that
Dr. Levitz wanted to conduct an examination but was informed by plaintiff’s
counsel that he could not do so. [130] at 6.
To the extent defendants are attacking the factual basis for Dr. Levitz’s
testimony, they have provided no reason to exclude Dr. Levitz’s testimony. It is
undisputed that Dr. Levitz reviewed a wide range of sources, such as medical
records, incident reports, and outpatient therapy notes, and defendants have not
challenged the accuracy of those sources. Moreover, Dr. Levitz’s reliance in part on
Zavala’s own description of his functional losses “goes to the weight of the medical
testimony, not its admissibility,” and is “susceptible to exploration on crossexamination by opposing counsel.” Cooper v. Carl A. Nelson & Co., 211 F.3d 1008,
1021 (7th Cir. 2000) (medical expert could properly testify to the cause of injury
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based in part on the patient’s statements, and the jury could evaluate the patient’s
credibility); see also Walker v. Soo Line R. Co., 208 F.3d 581, 586 (7th Cir. 2000) (“In
situations in which a medical expert has relied upon a patient’s self-reported history
and that history is found to be inaccurate, district courts usually should allow those
inaccuracies in that history to be explored through cross-examination.”).
To the extent defendants argue that drawing conclusions from a paper record
rather than a firsthand examination is methodologically unsound, that argument is
not persuasive. Dr. Levitz’s review of medical records and the other records listed
above is enough to support his opinions here. Walker, 208 F.3d at 591 (“The lack of
an examination of Mr. Walker does not render Dr. Upton’s testimony
inadmissible.”); Rabin v. Cook Cty., No. 09-cv-08049, 2015 WL 1926420, at *3 (N.D.
Ill. Apr. 27, 2015) (“[T]he Seventh Circuit has held that evaluating a patient’s
medical records alone—without performing a physical examination—is a reliable
method to use when developing an expert opinion.”) (citing cases).
Indeed, Dr. Levitz testified that “at this point,” Zavala’s description of his
functional limitations is a more valuable source of information than the results of a
functional capacity evaluation: “So I can measure his motion, I can measure his
strength, but it’s him using the hand and how he feels limited. That’s really what
matters. And the information that I had taken from his deposition where those
things were asked of him is much more important at this point in time.” [155] at 11
(sealed).
Dr. Levitz relied on the record, including Zavala’s description of his
functional losses, and concluded—based on his professional experience and
education—that different treatment by Dr. Obaisi would have reduced the
likelihood of such functional losses. There is nothing inherently unsound or
unreliable about this methodology. Defendants’ points that Dr. Levitz trusted
Zavala’s description of his experience and did not conduct an independent
functional evaluation or examination, and that an independent examination would
be important, are matters for cross-examination.
Defendants insist that Dr. Levitz’s approach in this case did not adhere to his
own standards of practice. As defendants point out, Dr. Levitz acknowledged that
in-person functional capacity evaluations are generally important and testified that
if Zavala was his patient, Dr. Levitz would have performed measurements and
testing. See [155] at 39 (sealed). Accordingly, defendants argue that Dr. Levitz’s
approach was “a methodology designed by Dr. Levitz specifically for this litigation.”
[130] at 8. However, in addition to the testimony about the relatively greater
importance of self-reported functional losses, Dr. Levitz also testified that
physicians often “don’t do functional capacity evaluations” because of their cost, and
that physicians “can get a pretty good idea of where the patient stands” from
medical records and patient complaints. [155] at 12, 43 (sealed). Again, defendants
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are free to explore these matters on cross-examination, but they do not render the
testimony so unreliable that it should be barred.
Defendants also take aim at Dr. Levitz’s reliance on his “flexor tendon
protocols,” which are his guideposts for post-operative rehabilitation. Defendants
argue Dr. Levitz never personally used these protocols on Zavala. That argument is
not persuasive. Dr. Levitz relied on his knowledge of his own protocols as a crossreference against Zavala’s treatment. Defendants also argue Dr. Levitz’s own
protocols were not published or peer-reviewed, but Dr. Levitz testified that they
were substantially similar to the main generally accepted protocols in the medical
community. See [155] at 7–8 (sealed). Defendants have presented no evidence that
Dr. Levitz’s protocols lack “general acceptance” in the medical community or are not
rooted in peer-reviewed or published research. Smith, 215 F.3d at 719. Dr. Levitz
also can properly rely on his professional experience with the effect that treatment
adhering to these protocols tends to have on patients’ results. See Cage v. City of
Chicago, 979 F. Supp. 2d 787, 803 (N.D. Ill. 2013) (“expert testimony is not
unreliable simply because it is founded on [the expert’s] experience rather than on
data”) (quoting Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir.
2010)) (alteration omitted).
Next, defendants argue that because Dr. Levitz relied in part on the
testimony of Dr. Weinzweig, the treating physician, the fact that Dr. Levitz and
Dr. Weinzweig reached potentially divergent conclusions indicates unreliability.
Defendants’ position is that “[s]ince Dr. Levitz is basing his opinions off of Dr.
Weinzweig’s testimony, it would only make sense that his opinions would mirror
those of Dr. Weinzweig.” [130] at 11. But it makes sense that Dr. Levitz’s
conclusions could differ in certain ways, since medical experts rely on their own
professional experience. “That two different experts reach opposing conclusions
from the same information does not render their opinions inadmissible.” Walker,
208 F.3d at 589.
In any event, it is not clear that Dr. Weinzweig and Dr. Levitz reached
opposing conclusions. Dr. Weinzweig concluded that therapy or no therapy,
Zavala’s outcome was “excellent,” and patients with adequate therapy often do not
achieve such good results. O’s Resp. ZSOF, [176] ¶ 19. Dr. Levitz said, “I’m not
debating that [Zavala] got an excellent outcome.” [155] at 33 (sealed). And Dr.
Levitz acknowledged that Dr. Weinzweig did not attribute any functional
limitations to delays in treatment. [155] at 33 (sealed). However, Dr. Levitz
testified that delays “cut down” the likelihood of a “maximal outcome.” [155] at 27
(sealed). Since “therapy programs work,” timely therapy “may have given [Zavala]
a better chance of minimizing those functional losses.” [155] at 32 (sealed). Based
on the record, including Dr. Weinzweig’s assessment, Dr. Levitz opined that Zavala
“did not have full motion and clearly does not have full function. And if there were
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other things that could been done to get the patient to that point, then all of those
things should have been done.” [155] at 27 (sealed).
Moving on from reliability, defendants argue that Dr. Levitz’s opinions are
not helpful to the trier of fact. They contend Dr. Levitz’s testimony is confusing
since as noted above he did not disagree with Dr. Weinzweig’s conclusion that
Zavala got an excellent outcome. But competing expert witnesses are permitted to
agree on some points but not others. Our adversarial system presumes that juries
are capable of weighing expert testimony with different emphases. See Gicla v.
United States, 572 F.3d 407, 414 (7th Cir. 2009) (noting the case involved “a classic
battle of the experts . . . [that] called upon the factfinder to determine what weight
and credibility to give to each expert”).
Defendants also assert, without elaboration, that Dr. Levitz’s testimony is
impermissibly speculative. But Dr. Levitz’s testimony that different care would
have reduced Zavala’s likelihood of prolonged pain and permanent functional loss
was properly based on his experience and education.
Finally, defendants argue that Dr. Levitz’s opinions have low probative value
which is “far outweighed by the unfair prejudicial effect on Dr. Weinzweig and his
expert testimony.” [130] at 11. Defendants do not elaborate on how the testimony
prejudices Dr. Weinzweig in an “unfair” way, so any argument on this front is
waived. See Hernandez v. Cook Cty. Sheriff’s Office, 634 F.3d 906, 913 (7th Cir.
2011) (“It is well established in our precedent that ‘skeletal’ arguments may be
properly treated as waived.”). Defendants’ Daubert motion is denied.
II.
Defendants’ Motions for Summary Judgment
Obaisi and Wexford filed separate motions for summary judgment.
Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). A genuine dispute as to any material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which
facts are material. Id.
The party seeking summary judgment has the burden of establishing that
there is no genuine dispute as to any material fact. See Celotex, 477 U.S. at 323
(1986). After a “properly supported motion for summary judgment is made, the
adverse party must set forth specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 250 (quotation marks and citation omitted).
Construing the evidence and facts supported by the record in favor of the
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nonmoving party, the court gives the nonmoving party “the benefit of reasonable
inferences from the evidence, but not speculative inferences in [its] favor.” White v.
City of Chi., 829 F.3d 837, 841 (7th Cir. 2016) (citations omitted). “The controlling
question is whether a reasonable trier of fact could find in favor of the non-moving
party on the evidence submitted in support of and opposition to the motion for
summary judgment.” Id. (citation omitted).
Defendants seek summary judgment on Eighth Amendment claims. The
Eighth Amendment protects prisoners from conditions of confinement that “involve
the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S. 337,
346 (1981). This protection extends to the denial or delay of medical care. Estelle v.
Gamble, 429 U.S. 97, 103–05 (1976). To establish a violation of this right, a plaintiff
must show that he had “an objectively serious medical condition”; the defendants
knew of the condition and were “deliberately, that is subjectively, indifferent” to it;
and this indifference caused the plaintiff injury. Whiting v. Wexford Health
Sources, Inc., 839 F.3d 658, 661–62 (7th Cir. 2016) (citation and quotation marks
omitted); see also Quillman v. Estate of Obaisi, No. 14-cv-9806, 2020 WL 2084989,
at *4 (N.D. Ill. Apr. 30, 2020).
“A delay in treating non-life-threatening but painful conditions may
constitute deliberate indifference if the delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Arnett v. Webster, 658 F.3d 742, 753
(7th Cir. 2011). “[T]he length of delay that is tolerable depends on the seriousness
of the condition and the ease of providing treatment.” McGowan v. Hulick, 612 F.3d
636, 640 (7th Cir. 2010). In cases such as this one, where plaintiff alleges that the
defendant delayed, rather than denied, medical treatment, the plaintiff must
“present ‘verifying medical evidence’ that the delay, and not the underlying
condition, caused some harm.” Walker, 940 F.3d at 964 (quoting Jackson v. Pollion,
733 F.3d 786, 790 (7th Cir. 2013)).
The court addresses Obaisi’s motion first, followed by Wexford’s.
A.
Obaisi’s Summary Judgment Motion
Zavala alleges that Dr. Obaisi acted with deliberate indifference to his
serious medical needs by failing to provide Zavala with access to timely and
adequate therapy, timely follow-up visits with Dr. Weinzweig, timely and adequate
splinting, and wound care (such as removing sutures and changing dressings).
[161] at 6. Obaisi, the executor of Dr. Obaisi’s estate, denies these allegations and
argues that Zavala cannot establish any of the elements of an Eighth Amendment
11
claim—objective seriousness, deliberate indifference, or causation. 7 Obaisi also
argues that punitive damages are not available against the estate.
Objective Seriousness
Regarding the first element of an Eighth Amendment claim, Obaisi argues
that Zavala’s post-operative condition was not “objectively serious,” because Dr.
Weinzweig was able to treat most of Zavala’s injuries during the November 2, 2016,
surgery. This argument is foreclosed by Seventh Circuit precedent. Zavala’s postoperative condition was diagnosed by physicians as “mandating treatment,” see
[124] ¶ 17, which is enough to survive a motion for summary judgment. See Donald
v. Wexford Health Sources, Inc., 982 F.3d 451, 458 (7th Cir. 2020); Greeno v. Daley,
414 F.3d 645, 653 (7th Cir. 2005). Further, Dr. Weinzweig’s post-operative
treatment instructions—which included prescriptions for painkillers, regular
therapy, and a splint—foreclose summary judgment on this point.
Deliberate Indifference and Causation
Obaisi next argues that the record cannot support Zavala’s claims that Dr.
Obaisi was deliberately indifferent to Zavala’s medical needs and that Dr. Obaisi’s
inaction or delays (rather than the underlying condition itself) harmed Zavala. As
explained below, however, there is enough evidence in the record on both points—
indifference and causation—to survive summary judgment with respect to the
delays in Zavala’s therapy, follow-up appointment, splinting, and wound care.
a.
Delay in Therapy
The record contains sufficient evidence for a jury to conclude that Zavala’s
therapy was unreasonably delayed and that Dr. Obaisi was responsible for, and
deliberately indifferent to, the delay in therapy. As noted above, on November 9,
2016, Dr. Weinzweig ordered occupational therapy for Zavala’s hand two to three
times per week. But Zavala did not consult with an occupational therapist until
December 9, and did not begin therapy (with a physical therapist) for four
additional weeks after that.
There is evidence in the record that would allow a jury to conclude that Dr.
Obaisi was responsible for this delay. It is undisputed that Dr. Obaisi was aware of
Zavala’s surgery and need for follow-up care generally; Dr. Obaisi participated in
the “collegial review” process that had at least some responsibility for carrying out
A section of Obaisi’s brief is devoted to arguing that the decision to prescribe Tylenol 3, as
opposed to Norco, was not deliberate indifference. The court has no occasion to address this
argument, because Zavala has not alleged or argued (either in his complaint or in his
response brief) that the substitution of Tylenol 3 for Norco injured him.
7
12
Dr. Weinzweig’s post-surgical orders. Zavala wrote letters to Dr. Obaisi and
medical grievances concerning Zavala’s condition, serious pain, and need for
treatment. But rather than receiving occupational therapy within ten to fourteen
days after surgery as requested by Dr. Weinzweig, Zavala completed only physical
therapy (not occupational therapy) and did not begin physical therapy until eight
weeks after surgery. Zavala received only a single evaluation by a certified
occupational therapist, and that evaluation did not take place until a month after
Dr. Weinzweig ordered it.
There is also enough evidence to survive summary judgment on whether Dr.
Obaisi was deliberately indifferent to the delay. Zavala testified that when he
asked Dr. Obaisi for additional therapy, Dr. Obaisi replied, “I know you need
therapy, but I can’t send you out.” ZSOF, [162] ¶ 30. Dr. Obaisi made this
statement after receiving the “[d]oes not meet expectations” grade for his ability to
“control expenses, conserve supplies, and operate within budget” on his annual
performance evaluation. ZSOF, [162] ¶¶ 13–14. A jury could reasonably interpret
this statement as an admission that Dr. Obaisi prioritized cost-saving to the
“exclusion of reasonable medical judgment,” and, as a result, conclude that Dr.
Obaisi was deliberately indifferent to Zavala’s therapeutic delays. Roe v. Elyea, 631
F.3d 843, 863 (7th Cir. 2011) (“Although administrative convenience and cost may
be, in appropriate circumstances, permissible factors for correctional systems to
consider in making treatment decisions, the Constitution is violated when they are
considered to the exclusion of reasonable medical judgment about inmate health.”)
(emphases in original; citation omitted); see also Petties v. Carter, 836 F.3d 722, 730
(7th Cir. 2016), as amended (Aug. 25, 2016) (“If a prison doctor chooses an ‘easier
and less efficacious treatment’ without exercising professional judgment, such a
decision can also constitute deliberate indifference.”) (citation omitted); Arnett, 658
F.3d at 753 (“Deliberate indifference can include the intentional delay in access to
medical care.”).
Defendants argue that Zavala has not presented evidence that Dr. Obaisi was
personally responsible for any delays, deliberately refused to send Zavala offsite, or
failed to do what he personally could have. Defendants argue, for example, that
Zavala did not present evidence that Dr. Obaisi was personally responsible not just
for medical evaluations of patients but also for scheduling offsite appointments and
/ or coordinating security transport. [177] at 7. With respect to Ms. Southworth
(the offsite occupational therapist), defendants argue that it is undisputed that Dr.
Obaisi sought and obtained approval for that evaluation, that Zavala has presented
no evidence that there was an available appointment with Ms. Southworth any
sooner than it occurred, and that Zavala cannot show that Dr. Obaisi played a role
in the date of that appointment. [177] at 4–5. Defendants are free to present these
arguments to the jury, but at this stage the evidence of Dr. Obaisi’s awareness of
13
Zavala’s condition and participation in collegial review is enough to survive
summary judgment.
The fact that Zavala eventually recovered much of his hand’s functionality
despite the delay in therapy does not preclude liability. See Smith v. Knox Cnty.
Jail, 666 F.3d 1037, 1039–40 (7th Cir. 2012) (per curiam) (“deliberate indifference to
prolonged, unnecessary pain can itself be the basis for an Eighth Amendment
claim”); Arnett, 658 F.3d at 753 (“A delay in treating non-life-threatening but
painful conditions may constitute deliberate indifference if the delay exacerbated
the injury or unnecessarily prolonged an inmate’s pain.”) (citation omitted).
Zavala’s medical expert, Dr. Levitz, explained that failure to timely start a therapy
program can cause recovery to be “significantly prolonged,” and that this delay
caused Zavala’s rehabilitation to take seven months, when it should have taken no
longer than three or four. [144] at 13 (sealed); Z’s Resp. OSOF, [159] ¶ 71. Dr.
Levitz further testified Zavala likely had “more scar formation, more swelling, more
wound discomfort, greater risk of infection” because of the delay. [144] at 27
(sealed). A jury could conclude from this evidence that the delay in receiving timely
therapy at a minimum prolonged Zavala’s serious physical pain.
b.
Delay in Follow-Up Appointment
A jury also could find that Dr. Obaisi caused an unreasonable delay in
Zavala’s follow-up appointment with Dr. Weinzweig. As noted above, rather than
Zavala having a follow-up appointment with Dr. Weinzweig within two weeks after
the November 9 post-operative visit, the follow-up visit did not occur until eleven
weeks after the post-operative visit. This is true even though Dr. Obaisi received
approval from Wexford on November 9 (the day of the post-operative visit, and one
week after surgery) to send Zavala out for follow-ups. This delay—like the delay in
sending Zavala to therapy described above—came on the heels of Dr. Obaisi’s
annual performance review, in which he was criticized for spending too much money
on patients’ offsite care.
When viewed alongside the other delays and Dr. Obaisi’s alleged admission to
Zavala that Dr. Obaisi knew he needed care but would not send him out, a jury
could conclude that this delay, too, was caused by Dr. Obaisi’s deliberate
indifference. That is particularly true given that Obaisi has not presented evidence
that shows an alternate cause for the delay. Cf. Walker, 940 F.3d at 965 (finding no
evidence of deliberate indifference where Dr. Obaisi delayed treatment because he
was waiting on further test results).
There is also evidence that this delay harmed Zavala. A jury could conclude
that if not for this delay, Zavala would have received timely wound care—such as
removal of stitches, wound cleaning, and a change of bandages—because that type
of care is typically provided during “routine follow-ups with the surgeon.” [144] at 7
14
(sealed). As discussed below, a jury could conclude that Zavala’s failure to receive
timely wound care prolonged his serious physical pain. The delay in sending Zavala
out for a follow-up appointment might not have harmed Zavala if Zavala had
received timely and appropriate follow-up care at Wexford in the interim, cf. [143]
at 15 (sealed) (noting Wexford policy required regular wound cleaning and dressing
changes), but he did not. Accordingly, a jury could conclude that the delay in
sending Zavala to a follow-up with Dr. Weinzweig prolonged Zavala’s serious pain.
Defendants again argue that Zavala has not presented evidence that Dr.
Obaisi was responsible for any delays, deliberately refused to send Zavala offsite, or
failed to do what he personally could have. As noted above, defendants argue, for
example, that Zavala did not present evidence that Dr. Obaisi was personally
responsible not just for medical evaluations of patients but also for scheduling
offsite appointments and / or coordinating security transport. [177] at 7. With
respect to Dr. Weinzweig, defendants point to the fact that Dr. Obaisi in fact sought
and obtained approval for all visits with Dr. Weinzweig through January 31, 2017,
and contend that there is no basis that Dr. Obaisi would have done this and then
consciously failed to send Zavala out for an appointment due to a performance
review. [177] at 6–7. As with the arguments regarding the evaluation by Ms.
Southworth, defendants are free to present these arguments to the jury, but at this
stage the evidence of Dr. Obaisi’s awareness of Zavala’s condition and participation
in collegial review is enough to survive summary judgment.
c.
Delay in Adequate Splinting
As discussed above, the day after Zavala’s surgery, Dr. Weinzweig prescribed
Zavala a custom, thermoplastic splint to wear for a period of six to eight weeks
following surgery. Dr. Weinzweig reiterated this requirement in Zavala’s postoperative visit one week later. Dr. Obaisi complied with this prescription by
ordering a thermoplastic splint, but due to IDOC security policies, Zavala was not
allowed to use it outside the infirmary. Dr. Obaisi never told Zavala either that the
thermoplastic splint existed or that Zavala could use it in the infirmary. Whether
Zavala would have been allowed to use the thermoplastic splint in the infirmary is a
disputed fact issue. Defendants contend that Dr. Obaisi attempted to have IDOC
allow Zavala to use the thermoplastic splint in the infirmary, and that the request
was denied by IDOC. But there is testimony in the record indicating that Zavala
would have been allowed to use it there. Thus, a jury could conclude that Zavala’s
hand was not splinted when it could and should have been.
Dr. Obaisi eventually requested an alternate security-compliant brace, but
not until January 3, over a month after the thermoplastic splint was initially denied
by IDOC on November 22. There is some evidence in the record to support Zavala’s
argument that there was nothing stopping Dr. Obaisi from obtaining an alternate
brace as soon as IDOC denied the thermoplastic splint. Z’s Resp. OSOF [159] ¶¶ 18,
15
29; ZSOF [159] 21; [142] at 19 (sealed). As with the other delays, there are issues of
fact precluding summary judgment on whether this unexplained delay was a
product of deliberate indifference by Dr. Obaisi.
There is evidence that this delay harmed Zavala. Dr. Levitz testified that
timely use of a splint is important for tendon injuries and that Zavala experienced
increased discomfort, swelling, and pain because he was not placed in a splint for
over a month after his surgery. ZSOF, [159] ¶¶ 20–23. If a jury believes this
testimony, it could find that Dr. Obaisi’s delay exacerbated Zavala’s injury and
prolonged his pain. Cf. King v. Chapman, 4 F. Supp. 3d 1017, 1039–40 (N.D. Ill.
2013) (denying summary judgment where physician’s “delay in following surgeon’s
advice in obtaining” a medical device “and physical therapy constituted deliberate
indifference”), rev’d in part on other grounds sub nom. King v. Newbold, 815 F.
App’x 82 (7th Cir. 2020).
d.
Delay in Wound Care
Zavala’s sutures were not removed for eight weeks following his surgery,
which Dr. Levitz testified can be painful because sutures “tend to grow into the
skin,” sometimes causing a burning sensation. ZSOF, [159] ¶¶ 29, 32. Zavala’s
dressings were not changed or cleaned until at least December 9, 2016—over a
month after his surgery—which Dr. Levitz testified “can be extremely
uncomfortable.” ZSOF, [159] ¶¶ 27–28.
Obaisi emphasizes that Dr. Weinzweig did not observe “any signs of
infection” resulting from the lack of wound care and that the lack of wound care did
not delay Zavala’s healing process. [122] at 9. These arguments, even if correct, do
not preclude liability. Again, “deliberate indifference to prolonged, unnecessary
pain can itself be the basis for an Eighth Amendment claim.” Smith, 666 F.3d at
1040. Zavala filed written complaints indicating that he repeatedly complained to
Dr. Obaisi about severe pain in his hand, and specifically connected this pain to his
wound care. See, e.g., ZSOF, [159] ¶ 31 (alleging that “Zavala showed his wound to
Dr. Obaisi . . . including his retained stitches,” and Dr. Obaisi responded only by
providing band-aids); ZSOF, [159] ¶ 34 (alleging that Zavala told Dr. Obaisi “My
fingers hurt bad from these stitches. . . . My fingers are numb, and feel frozen
stiff.”). In addition, Dr. Levitz testified that, notwithstanding the delayed therapy
and follow-ups, the lack of wound care probably independently contributed to
Zavala’s discomfort and pain. ZSOF, [159] ¶¶ 25, 28; [144] at 24 (sealed). Obaisi
contends that while Dr. Levitz testified that unclean bandages can be
uncomfortable, Dr. Levitz admitted that he has seen no evidence that this actually
occurred in this case. O’s Resp. ZSOF, [176] ¶ 28. However, Zavala’s written
16
complaints and Dr. Levitz’s testimony considered in its entirety foreclose summary
judgment.
***
For the reasons explained above, the record indicates genuine, material
disputes about whether Dr. Obaisi was deliberately indifferent to Zavala’s medical
needs and, if so, whether the delays attributable to Dr. Obaisi’s indifference harmed
Zavala. Summary judgment on these issues is denied.
Punitive Damages
Obaisi, the executor of Dr. Obaisi’s estate, argues that punitive damages are
not available against the estate. Federal common law governs the scope of punitive
damages in § 1983 actions. See Erwin v. County of Manitowoc, 872 F.2d 1292, 1299
(7th Cir. 1989). In such actions, a jury may assess punitive damages if the plaintiff
shows that a defendant’s conduct was “motivated by evil motive or intent” or
involved “reckless or callous indifference to the federally protected rights of others.”
Green v. Howser, 942 F.3d 772, 781 (7th Cir. 2019) (quoting Smith v. Wade, 461 U.S.
30, 56 (1983)). The standard for awarding punitive damages tracks the standard for
§ 1983 liability generally—both require that the defendant acted with deliberate
indifference. Woodward v. Corr. Med. Servs. of Ill., 368 F.3d 917, 930 (7th Cir.
2004). Punitive damages serve three purposes: specific deterrence (that is,
deterrence of the defendant himself), general deterrence (deterrence of other state
actors who are similarly situated to the defendant), and punishment. See Smith,
461 U.S. at 54 (punitive damages exist “to punish the defendant for his outrageous
conduct and to deter him and others like him from similar conduct in the future”)
(citation and quotation marks omitted).
“[F]ew courts, however, have decided on whether punitive damages may be
assessed against § 1983 defendants who are deceased.” Heidelberg v. Manias, No.
18-cv-1161, 2020 WL 7034315, at *25 (C.D. Ill. Nov. 30, 2020). Most of the district
courts in this circuit considering this question have held that they may not. See
Heidelberg, 2020 WL 7034315, at *24–25; Flournoy v. Estate of Obaisi, No. 17-cv7994, 2020 WL 5593284, at *14 (N.D. Ill. Sept. 18, 2020); Kahlily v. Francis, No. 08cv-1515, 2008 WL 5244596, at *6 (N.D. Ill. Dec. 16, 2008). These courts reasoned
that imposing punitive damages on deceased defendants would not serve two of the
three purposes of punitive damages—specific deterrence and punishment. As
Kahlily explained:
Although imposing punitive damages in such situations could provide
deterrence to other officers, other forms of deterrence already exist to
prevent state officials from committing constitutional torts. Other
principles, such as the interest in avoiding liability for compensatory
17
damages and the devotion to public duty, operate to deter state officials
from engaging in the type of conduct that can give rise to liability for
punitive damages. See Smith, 461 U.S. at 50. Whatever incremental
deterrence value imposing punitive damages on deceased defendants
would have on others does not outweigh the fact that two of the major
purposes for imposing punitive damages would not be served at all.
Because imposing punitive damages on the estate of a deceased
defendant cannot punish or deter the individual that engaged in the
outrageous conduct, awarding punitive damages in such situations
would not serve the overall policies behind punitive damages.
Kahlily, 2008 WL at *6; see also Doe v. Indyke, 465 F. Supp. 3d 452, 472 (S.D.N.Y.
2020) (“[T]he general deterrence purpose of punitive damages . . . is served by the
availability of punitive damages against defendants who are alive.”).
The minority of courts within this circuit that reached a contrary decision did
so based on Graham v. Sauk Prairie Police Commission, 915 F.2d 1085 (7th Cir.
1990). In Graham, the widow of a man shot and killed by a police officer brought a
§ 1983 suit against the officer; the officer died shortly after the suit was brought.
Id. at 1088. The Seventh Circuit allowed the plaintiff to seek loss-of-life damages
against the deceased officer’s estate, explaining:
Section 1983 damages are considered to be appropriate as long as those
damages generally effectuate the policies underlying § 1983. The
fundamental policies underlying § 1983 are compensation for, and
deterrence of, unconstitutional acts committed under state law. . . .
The fact that Mueller [the deceased officer] can no longer be deterred is
quite irrelevant. The deterrence objective of § 1983 damages is directed
at a broader category of persons than the individual perpetrator alone.
Id. at 1104–05 (citations omitted). Drawing on this reasoning, some courts have
concluded that if general deterrence is enough to justify the award of loss-of-life
damages, it must also be sufficient to justify the award of punitive damages.
See Javier v. City of Milwaukee, No. 07-cv-0204, 2009 WL 10663364, at *8–9 (E.D.
Wis. Dec. 23, 2009); Estate of Arana v. City of Chicago, No. 89-cv-4179, 1992 WL
162965, at *2 (N.D. Ill. July 2, 1992).
But punitive damages serve unique purposes. Unlike other forms of
damages, including the loss-of-life damages at issue in Graham, “[p]unitive
damages by definition are not intended to compensate the injured party, but rather
to punish the tortfeasor.” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266
(1981); see also Graham, 915 F.2d at 1106 (emphasizing “the compensatory aspect of
loss of life damages”). Thus, while two of the three policy goals at issue in Graham
18
were furthered by the award of loss-of-life damages (general deterrence and
compensation would be furthered; specific deterrence would not), the opposite is
true when it comes to punitive damages (general deterrence would be furthered;
specific deterrence and punishment would not).
The court agrees with the reasoning in Heidelberg, Flournoy, and Kahlily.
Obaisi’s motion for summary judgment on the issue of punitive damages is granted.
B.
Wexford’s Summary Judgment Motion
Zavala contends that Wexford shares responsibility for his injuries. While
Wexford is a private corporation, “the Monell theory of municipal liability applies in
§ 1983 claims brought against private companies that act under color of state law.”
Whiting, 839 F.3d at 664 (citations omitted) (describing Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658 (1978)). Because Wexford “has contracted
to provide essential government services” (medical care), Wexford is “subject [under
§ 1983] to at least the same rules that apply to public entities.” Hildreth v. Butler,
960 F.3d 420, 426 (7th Cir. 2020) (quoting Glisson v. Dep’t of Corr., 849 F.3d 372,
378–79 (7th Cir. 2017) (en banc) (alterations in Hildreth)).
In order to defeat summary judgment on his Monell claim against Wexford,
Zavala must present evidence from which a jury could find that Wexford’s policy or
custom caused his injury. Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019).
He can satisfy this burden by showing one of three things: (1) a policy that
Wexford’s officers officially promulgated; (2) a widespread practice that was so
permanent and well-settled that it constituted a custom or practice despite not
being expressly adopted; or (3) that a person at Wexford with final policymaking
authority caused the constitutional injury. Id.
Here, Zavala does not allege that any person with final policymaking
authority caused his injury. Nor does Zavala argue—at least not explicitly—that
Wexford officially promulgated an unconstitutional policy. Although Zavala points
to language in Wexford’s contract with the State of Illinois that arguably
incentivizes cost-cutting practices, see [164] at 6–8 (citing language requiring
Wexford to “aggressively manage all off-site services for . . . cost effectiveness” and,
in some cases, to pay for offsite referrals out of Wexford’s own profits), Zavala does
not appear to argue that Wexford officially codified these practices into formal
company policies, and there is no evidence in the record to support such an
inference.
To the extent Zavala’s brief could be interpreted as arguing that the
contractual language itself amounts to an unconstitutional Wexford policy, that
argument is not persuasive. Even assuming that contractual language amounts to
an “official policy” actionable under Monell (an assumption that may be incorrect),
19
the contractual provisions Zavala cites do not condone prioritizing cost-cutting over
proper medical care or reasonable medical judgment. Indeed, as Zavala concedes,
the contract explicitly “requires Wexford to provide care that meets medically
accepted community standards.” [164] at 6.
This leaves a “custom or practice” claim. To prevail on a custom or practice
claim, Zavala must show that Wexford’s practices violated his constitutional rights
and that each alleged practice was “so pervasive that acquiescence on the part of
policymakers was apparent and amounted to a policy decision.” Hildreth, 960 F.3d
at 426 (citation and quotation marks omitted). “This requires more than a showing
of one or two missteps. There must be systemic and gross deficiencies.” Id.
(citations and quotation marks omitted). Zavala must also show that Wexford’s
policymakers knew about and failed to correct the practice, id. at 426, and that
Wexford’s conduct was the “moving force” behind his injury, J.K.J. v. Polk Cty., 960
F.3d 367, 377 (7th Cir. 2020) (en banc). In other words, Zavala must demonstrate a
direct causal link between Wexford’s conduct and his injury. Id.
It is “difficult,” but “not impossible,” for a plaintiff to show a widespread
custom or policy based solely on his own experience. Hildreth, 960 F.3d at 426
(citation and quotation marks omitted). “[W]hat is needed is evidence that there is
a true municipal policy at issue, not a random event.” Phelan v. Cook County, 463
F.3d 773, 790 (7th Cir. 2006), overruled on other grounds by Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) (quoting Calhoun, 408 F.3d 375, 380
(7th Cir. 2005)). The Seventh Circuit “has not adopted any bright-line rules
defining a widespread practice or custom,” but has “acknowledged that the
frequency of conduct necessary to impose Monell liability must be more than three,”
as well as acknowledged its prior explanation in Grieveson v. Anderson, 538 F.3d
763 (7th Cir. 2008), that (on the facts of Grieveson) “evidence of four instances that
[plaintiff] alone experienced is simply not enough to foster a genuine issue of
material fact that the practice was widespread.” Hildreth, 960 F.3d at 427–28 & n.6
(citations and quotation marks omitted).
Here, Zavala alleges that Wexford maintained two unlawful widespread
practices: (1) prioritizing cost-cutting above proper medical care and (2) tolerating,
condoning, or encouraging delays. As explained below, there is not enough evidence
on either point to withstand Wexford’s motion for summary judgment.
First, Zavala’s examples of Wexford prioritizing cost-cutting “are
insufficiently numerous” to survive summary judgment. Hildreth, 960 F.3d at 426.
Zavala has offered evidence of several deficiencies in medical care, but he has
offered evidence that could allow a jury to tie at most two of those deficiencies—the
denial of a timely follow-up visit with Dr. Weinzweig and timely occupational
therapy with Ms. Southworth—to Wexford’s prioritizing cost-cutting. Both Dr.
Weinzweig and Ms. Southworth are outside providers—that is, providers located
20
outside Stateville—and there is evidence in the record indicating that it cost
Wexford extra money to send inmates to see outside providers vis-à-vis in-house
providers. See ZSOF [162] at ¶¶4–12, 20–23. Thus, there is a basis on which a jury
could find that the delays in these two outside referrals were motivated in part by
Wexford’s desire to cut costs.
But there is no evidence in the record that plausibly links other delays or
deficiencies to a desire by Wexford to save money. The denial of Zavala’s
thermoplastic splint (which had already been purchased) was caused by IDOC
security policies, not by Wexford. And Zavala has not put forward any evidence
suggesting that the remaining delays—delays in obtaining a security-compliant
brace, in beginning physical therapy with Stateville’s on-site physical therapist, or
in receiving wound care (such as clean dressings and suture removal) that could
have been provided by Stateville’s on-site physicians—served any cost-saving
purpose. Cf. Montague v. Wexford Health Sources, Inc., 615 F. App’x 378, 379 (7th
Cir. 2015) (explaining that delaying approved medical treatment is often not
financially advantageous because “unwarranted delay in obtaining medical
assistance leads to medical complications that drive up the eventual cost”). As in
Hildreth and Grieveson, “‘evidence of four incidents that [plaintiff] alone
experienced’ is ‘simply not enough to foster a genuine issue of material fact that the
practice was widespread.’” Hildreth, 960 F.3d at 427 (quoting Grieveson, 538 F.3d
at 774–75) (brackets in Hildreth).
Zavala’s allegation that Wexford impermissibly condoned delays in medical
treatment likewise does not withstand summary judgment. Zavala’s briefs contend
that he experienced four such delays: delays in (1) sending Zavala for a timely
follow-up appointment with Dr. Weinzweig; (2) sending Zavala to his initial
occupational therapy consultation; (3) providing Zavala with wound care; and
(4) providing Zavala with a splint. Zavala has “not provided evidence that any
other inmates experienced” similar delays. Hildreth, 960 F.3d at 427. Again, under
Hildreth, this is “insufficient to qualify as a widespread practice or custom.” Id. at
428 & n.6.
Furthermore, Section 1983 claims that are based on a policy of inaction, such
as Zavala’s delay claim, see [164] at 11, require the plaintiff to “present evidence
that the institution made a conscious decision not to act.” Walker, 940 F.3d at 966.
Here, Wexford approved Dr. Obaisi’s requests for follow-up appointments and for
the sole requested occupational therapy consultation. Zavala argues that, despite
this approval, Wexford knew or should have known that the referrals had been
delayed based on Zavala’s December 1 and December 28 grievances. But even
21
assuming that were the case, two instances are “insufficiently numerous” to survive
summary judgment. Hildreth, 960 F.3d at 426.
Wexford’s motion for summary judgment is granted.
Conclusion
Defendants’ Daubert motion [130] is denied. Obaisi’s motion for summary
judgment [122] is granted in part and denied in part. Wexford’s motion for
summary judgment [126] is granted.
Date: March 29, 2021
/s/ Martha M. Pacold
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