Sildack v. Corizon Health Inc. et al

Filing 166

ORDER Accepting 157 Report and Recommendation and Granting in Part and Denying in Part 104 Motion for Summary Judgment. Signed by District Judge Denise Page Hood. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRENTON SILDACK,
Plaintiff,

Case No. 11-12939
Honorable Denise Page Hood

v.
CORIZON HEALTH, INC., et al.,
Defendants.
_________________________________/
ORDER ACCEPTING REPORT AND RECOMMENDATION
and
ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Magistrate Judge R. Steven Whalen’s Report and
Recommendation filed August 23, 2013 [Doc. No. 157] on Defendants’ Motion for Summary
Judgment. [Doc. No. 104] Defendants timely filed Objections to the Report and Recommendation.
[Doc. No. 160] To date, no Objections to the Report and Recommendation have been filed by
Plaintiff.
In Defendants’ Objections, they do not object to the dismissal of: Prison Health Services,
Inc.; Corizon Health, Inc. f/k/a Correctional Medical Services, Inc.; Richard Miles, M.D.; Lizabeth
Ralles, M.D.; James Rocco, M.D.; Larry Sell, M.D.; Rebekah Haggard, M.D.; Joseph Burtch, D.O.;
Kim Mahler, D.O.; and Carl Keldie, M.D. These Defendants are DISMISSED with prejudice.
Defendants strongly object to the denial of their summary judgment motion as to Defendants Adam
M. Edelman, M.D. and Sylvia McQueen, M.D.
Defendants Edelman and McQueen raise three Objections to the Report and
Recommendation: 1) the Magistrate Judge prematurely denied summary judgment to Defendants

Edelman and McQueen; 2) the Report and Recommendation misstates the facts; and, 3) the Report
and Recommendation failed to consider the parties’ expert opinions.
The standard of review by the district court when examining a Report and Recommendation
is set forth in 28 U.S.C.§ 636. This Court “shall make a de novo determination of those portions of
the report or the specified proposed findings or recommendations to which an objection is made.”
28 U.S.C. § 636(B)(1)(c). The Court “may accept, reject or modify, in whole or in part, the findings
or recommendations made by the Magistrate.” Id. In order to preserve the right to appeal the
Magistrate Judge’s recommendation, a party must file Objections to the Report and
Recommendation within fourteen (14) days of service of the Report and Recommendation. Fed. R.
Civ. P 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal.
Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human Servs., 932 F.2d
505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
After review of the Magistrate Judge’s Report and Recommendation and the Objections filed
to the Report and Recommendation, the Court finds that Magistrate Judge’s findings and
conclusions are correct. The Court agrees with the Magistrate Judge that there are genuine issues
of material fact as to Dr. Edelman’s actions relating to the denial of additional medical treatment for
Plaintiff. There is sufficient evidence in the record which creates a genuine issue of material fact
that Dr. Edelman’s decisions suggest deliberate indifference to Plaintiff’s serious medical needs.
The Court further agrees with the Magistrate Judge that Dr. McQueen is also not entitled to
summary judgment. As noted by the Magistrate Judge, Dr. McQueen’s affidavit misrepresents Dr.
LaHaye’s recommendation and in fact did not follow Dr. LaHaye’s advice. There remains a genuine
issue of material fact that Dr. McQueen’s decision denying Plaintiff additional medical care

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constitutes deliberate indifference to his serious medical needs.
As to Defendants’ first objection, that the Report and Recommendation was issued
prematurely because the Magistrate Judge should have waited until Defendants submitted additional
support for their Motion for Summary Judgment, nothing in the rules so provides. Defendants filed
the motion on November 9, 2012. Rule 56(c) provides that a party asserting that a fact cannot be
disputed “must” support the assertion by citing to the record. Fed. R. Civ. P. 56(c)(1). Rule 56(c)(3)
states that the court need only cite to the materials in the record. Fed. R. Civ. P. 56(c)(3). The
March 29, 2013 Magistrate Judge order stated that, “[u]pon receipt of the Plaintiff’s expert report(s),
Defendants may depose Plaintiff’s expert(s), and submit amended expert report(s) and/or supplement
their motion for summary judgment.” (MJ Ord. No. 133) The Magistrate Judge issued the Report
and Recommendation on August 23, 2013, almost five months after the Order was issued, and more
than nine months since Defendants filed the motion. Defendants did not supplement their summary
judgment motion until they filed their Objections to the Report and Recommendation. If the
Defendants required further discovery to support their summary judgment motion, they should have
waited until discovery was complete before filing their motion. The burden to show that there are
no genuine issues of material fact falls upon the defendants as the parties seeking summary
judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Magistrate Judge issued
its Report and Recommendation based on the record submitted by the parties in support and in
opposition to Defendants’ Motion for Summary Judgment. The evidence proffered by Defendants
in their objections did not relate to experts, but to facts as to what occurred in 2009 through 2011
which the could have presented to the Magistrate Judge when they filed the summary judgment
motion. Defendants’ first objection is overruled.

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Regarding Defendants’ second objection–that the Report and Recommendation misstates the
facts–the Court finds that the Magistrate Judge reviewed both Drs. Edelman and McQueen’s
affidavits and inferred facts from those affidavits. Defendants refer to various portions of the record
to dispute the inferences drawn by the Magistrate Judge. It was Defendants’ burden to cite to the
appropriate record if they wanted further evidence to support the affidavits they submitted. Courts
do not engage in self-directed inquiry into facts, but the parties have an obligation to point to the
evidence with specificity and particularity. Emerson v. Novartis Pharm. Corp., 446 Fed. Appx. 733,
736 (6th Cir. 2011); Wimbush v. Wyeth, 619 F.3d 632, 638 n. 4 (6th Cir. 2010). Defendants asked
the Magistrate Judge to consider Drs. Edelman and McQueen’s affidavits and he did so, coming to
his own conclusion. Defendants’ second objection is overruled.
Defendants’ third objection is that the Report and Recommendation failed to consider the
parties’ expert opinions. Weighing the credibility of competing expert reports amounts to improper
fact-finding. See Rodgers v. Monumental Life Ins. Co., 289 F.3d 442, 449 (6th Cir. 2002).
Competing expert opinions present the classic battle of the experts and it is up to the jury to evaluate
what weight and credibility each expert opinion deserves. Phillips v. Cohen, 400 F.3d 388, 399 (6th
Cir. 2005). The Magistrate Judge was correct in not addressing either party’s expert report.
Defendants’ fourth objection is overruled.
For the reasons set forth above,
IT IS ORDERED that the Report and Recommendation (Doc. No. 157, 8/23/2013) is
ACCEPTED and ADOPTED as this Court’s findings of fact and conclusions of law.
IT IS FURTHER ORDERED than Defendants’ Objections (Doc. No. 160, 8/30/2013) are
OVERRULED.

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IT IS FURTHER ORDERED that Defendants’ Motion to Seal Exhibit A (Doc. No. 161,
8/30/2013) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Doc. No.
104, 11/9/2012) is GRANTED IN PART and DENIED IN PART as more fully set forth above.
IT IS FURTHER ORDERED that the following Defendants are DISMISSED with prejudice:
Prison Health Services, Inc.; Corizon Health, Inc.; Correctional Medical Services, Inc.; Richard
Miles, M.D.; Lizabeth Ralles, M.D.; James Rocco, M.D.; Larry Sell, M.D.; Rebekah Haggard, M.D.;
Joseph Burtch, D.O.; Kim Mahler, D.O.; and Carl Keldie, M.D.
IT IS FURTHER ORDERED that Adam M. Edelman, M.D. and Sylvia McQueen, M.D.
REMAIN as defendants in this case.
IT IS FURTHER ORDERED that this matter is REFERRED back to the Magistrate Judge
to complete discovery and to assist the parties prepare for trial. The Magistrate Judge will submit
a status report to the Court within 30 days from this Order so that the Court may schedule the Final
Pretrial Conference and Trial dates.

S/Denise Page Hood
DENISE PAGE HOOD
United States District Judge
DATED: September 30, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
September 30, 2013, by electronic and/or ordinary mail.
S/Holly Monda for LaShawn Saulsberry
Case Manager

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