Wilson v. Hill
Filing
147
OPINION AND ORDER denying 110 Motion for Summary Judgment; denying 126 Motion to Strike 127 MOTION to Strike Affidavit of Dr. Clinchot. Signed by Magistrate Judge Norah McCann King on 3/29/12. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAWRENCE E. WILSON,
Plaintiff,
vs.
Civil Action 2:08-CV-552
Magistrate Judge King
LEON HILL,
Defendant.
OPINION AND ORDER
Plaintiff, a state inmate, brings this action under 42 U.S.C. §
1983, alleging that defendant corrections officer used excessive force
against plaintiff in violation of plaintiff’s rights under the Eighth
Amendment to the United States Constitution.
Plaintiff seeks monetary
damages against defendant in both his individual and official
capacities.
With the consent of the parties, see 28 U.S.C. §636(c),
this matter is now before the Court on Defendant Leon Hill’s Second
Motion for Summary Judgment, Doc. No. 110 (“Motion for Summary
Judgment”), on the Motion of Plaintiff Lawrence E. Wilson to Strike
the Affidavit of Dr. Clayborn Taylor and to Exclude His Medical
Opinions, Doc. No. 126 (“Motion to Strike Taylor Affidavit”) and on
the Motion of Plaintiff Lawrence E. Wilson to Strike the Affidavit of
Dr. Daniel Clinchot and to Exclude His Medical Opinions, Doc. No. 127
(“Motion to Strike Clinchot Affidavit”).
I.
BACKGROUND
Since December 2005 and at all times relevant to this action,
plaintiff has been incarcerated at the Pickaway Correctional
Institution (“PCI”).
Affidavit of Plaintiff Lawrence E. Wilson, Doc.
No. 39, ¶ 1 (“Plaintiff Affidavit”); Deposition of Lawrence E. Wilson,
Doc. No. 34, p. 16 (“Plaintiff Depo.”).
On January 3, 2008, at
approximately 3:55 p.m., plaintiff was standing in the vicinity of his
bunk and the rear wall of the dormitory, sipping coffee and waiting
for the 4:00 p.m. “standing count.”1
Plaintiff Depo., pp. 21-22.
Plaintiff Affidavit, ¶ 2;
At the same time, defendant and Captain
Stewart entered the dormitory.
111-1, pp. 25-26 (“Hill Depo.”).
Id.; Deposition of Leon Hill, Doc. No.
After defendant approached
plaintiff, a dispute arose regarding where plaintiff was standing.
Plaintiff Affidavit, ¶ 2; Plaintiff Depo., p. 22; Hill Depo., pp. 2526.
Plaintiff climbed onto his bunk, still talking to defendant.
Id.
Defendant ultimately handcuffed plaintiff and escorted him out of the
dormitory to an officer’s desk.
Plaintiff Affidavit, ¶ 2; Plaintiff
Depo., pp. 22-28; Hill Depo., pp. 26-27.
On June 10, 2008, plaintiff filed this action, alleging that
defendant, while handcuffing and escorting plaintiff out of the
dormitory on January 3, 2008, “used excessive physical force, without
need or provocation, and not applied in a good faith effort to
maintain or restore discipline” (“the incident”).
3, p. 3.2
Complaint, Doc. No.
Plaintiff further alleges that, as a result, two of his
teeth required extraction and he has been diagnosed with bilateral
carpal tunnel syndrome and “concussive or head trauma injury is
1
During a standing count at PCI, inmates stand in the immediate
proximity of their bunks while corrections officers count the inmates.
Plaintiff Depo., pp. 21-22.
2
The Complaint is verified. Complaint, p. 4 (declaring under penalty of
perjury that the foregoing is true and correct).
2
suspected.”
Id. at 4.
On May 4, 2009, defendant moved for summary judgment.
35.
Doc. No.
In denying defendant’s motion for summary judgment, the Court
concluded that the record as to whether or not plaintiff suffered
actual physical injury was controverted, precluding the grant of
summary judgment.
Opinion and Order, Doc. No. 45, pp. 9-11.
Thereafter, the Court appointed counsel for plaintiff and
established case deadlines.
Order, Doc. No. 58.
summary judgment.3
Order, Doc. No. 52; Preliminary Pretrial
On July 1, 2011, defendant again moved for
Plaintiff opposes the Motion for Summary Judgment.
Memorandum of Plaintiff Lawrence E. Wilson in Opposition to
Defendant’s Second Motion for Summary Judgment, Doc. No. 115 (“Memo.
in Opp.”).
After the filing of Defendant Leon Hill’s Reply in Support of
Second Motion for Summary Judgment, Doc. No. 121 (“Reply”), plaintiff
moved to strike the declarations of Karen Stanforth and Kooljo Ntim
submitted in support of the Motion for Summary Judgment because
defendant had failed to disclose these witnesses prior to the close of
discovery.
Doc. No. 124.
After conferring with counsel, the Court
reopened discovery for the limited purpose of deposing Ms. Stanforth
and Nurse Ntim.
Order, Doc. No. 125.
The Court also permitted
supplemental briefing following this discovery, Order, Doc. No. 132,
and plaintiff filed the Supplemental Memorandum of Plaintiff Lawrence
E. Wilson in Opposition to Defendant’s Second Motion for Summary
3
On September 20, 2011, defendant was permitted to amend Exhibit B to
the Motion for Summary Judgment, which mistakenly omitted pages to an
affidavit. Order, Doc. No. 123.
3
Judgment, Doc. No. 139 (“Plaintiff’s Supplemental Opposition”), and
defendant filed the Defendant Leon E. Hill’s Reply to Plaintiff’s
Supplemental Opposition to Defendant’s Second Motion for Summary
Judgment, Doc. No. 142 (“Defendant’s Supplemental Reply”).
However,
because defendant raised new issues for the first time in Defendant’s
Supplemental Reply, the Court permitted a second round of additional
briefing.
Order, Doc. No. 144.
Thereafter, plaintiff filed the Sur-
Reply of Plaintiff Lawrence E. Wilson in Opposition to Defendant’s
Second Motion for Summary Judgment, Doc. No. 145 (“Plaintiff’s SurReply”), and defendant filed the Defendant Captain Leon Hill’s
Supplemental Response in Support of Second Motion for Summary
Judgment, Doc. No. 146 (“Defendant’s Response to Sur-Reply”).
Plaintiff has also moved to strike the affidavits of Dr. Clayborn
Taylor and Dr. Daniel Clinchot and to exclude their testimony.
See
Motion to Strike Taylor Affidavit and Motion to Strike Clinchot
Affidavit.
All of these motions are fully briefed and ripe for
resolution.
II.
MOTION TO STRIKE TAYLOR AFFIDAVIT
Plaintiff has alleged that, as a result of defendant’s unlawful
excessive force on January 3, 2008, plaintiff has suffered two cracked
and/or broken teeth.
49, 54.
Complaint, p. 4; Plaintiff Depo. pp. 24, 28-29,
There is no dispute that the two teeth at issue are the left
second bicuspid (tooth number 13) and the lower right first molar
(tooth number 30).
Tooth number 13 was extracted on April 24, 2008
and tooth number 30 was extracted on May 27, 2008.
Affidavit of
Clayborn Taylor, attached as Exhibit A to the Motion for Summary
4
Judgment (“Taylor Affidavit”), ¶ 8(I), (j) and document Bates Numbered
177, attached thereto.
On November 1, 2010, defendant disclosed Dr. Clayborn Taylor as
one of two “expert witnesses who will offer testimony at the trial of
this matter[.]”
Defendant Leon Hill’s Disclosure of Expert Testimony,
Doc. No. 74, p. 1 (attaching Expert Statement of Dr. Clayborn Taylor,
Doc. No. 74-1 (“Taylor Report”)).
Defendant represents that Dr.
Taylor was “not specially retained by Defendant in defense of this
action” and that Dr. Taylor “will testify as [a] treating physician[]
and expert[]” in his field.
Id.
Dr. Taylor is a dentist licensed in
Ohio since 1984 who has worked for the Ohio Department of
Rehabilitation and Correction (“ODRC”) for over five years and who has
treated plaintiff’s teeth.
Taylor Report, ¶¶ 1, 3, 12.
Defendant asked Dr. Taylor to detail his dental examinations and
diagnoses of plaintiff and to opine on the cause of the extractions of
tooth number 13 and tooth number 30:
I have been asked to give an account of my dental
examinations of inmate Wilson and my diagnosis of his severe
dental problems. I have been asked to describe why two of
Inmate Wilson’s teeth. . . were extracted on April 24, 2008
and May 27, 2008. . . I have been asked whether the alleged
use of force incident that supposedly occurred on January 3,
2008 caused any damage to Inmate Wilson’s teeth. Finally, I
have been asked to opine on whether this alleged use of
force necessitated the extraction of Inmate Wilson’s tooth
#13 and tooth #30.
Taylor Report, ¶ 3.
Dr. Taylor opined that plaintiff’s teeth (tooth
number 13 and tooth number 30) were extracted because of decay and
periodontitis and not because of trauma.
Id. at ¶¶ 6, 8, 12-13.
Dr.
Taylor stated that plaintiff “suffered from extreme pain and
sensitivity as the result of his periodontitis and chronic decay as
5
early as the year 2000.”
Id. at ¶ 9.
According to Dr. Taylor,
Mr. Wilson’s diagnosis of gross and systemic periodontitis
is based on a system of diagnosis used uniformly throughout
the U.S. dental community. The American Academy of
Periodontology (AAP), a recognized specialty of the American
Dental Association (ADA), has produced an accepted and
agreed upon method of diagnosing periodontitis. Diagnostics
are based on a classification system defined by Armitage in
1999 and subsequently accepted by the American Board of
Periodontology (ABP), the elite scientific echelon of the
AAP. Currently[,] dental students are taught how to
diagnose periodontitis. Prior to being awarded licensure in
the State of Ohio, dentists must pass an exam to prove they
are competent to diagnose periodontitis.
Id. at ¶ 10.
Dr. Taylor further explained that plaintiff’s diagnosis of
chronic tooth decay “was based on an equally accepted method of
diagnosis”:
The visual diagnosis method of dental caries has been
commonly used and widely accepted for more than a century.
It involves a visual examination of the affected tooth in
order to determine whether decay has occurred. If no visual
indication of decay is present but pain is still felt by the
patient, the overseeing dentist will administer a diagnosis
based on the use of x-ray. The latest contribution to the
visual diagnostic criteria for tooth decay comes from the
International Caries Detection and Assessment Criteria
(ICDAS). ICDAS was designed to facilitate the standardized
diagnosis of caries on all tooth surfaces at all stages of
severity. An updated version of ICDAS (ICDAS II) has been
well accepted in the United States and has been used in
clinical studies. Additionally, x-ray diagnosis has been
used pervasively for almost as long as the technology has
been in existence.
Id. at ¶ 11.
Dr. Taylor went on to explain that traumatic tooth loss is very
different from periodontitis and chronic tooth decay “in . . .
symptoms experienced by the patient, the standards utilized in
diagnosis, and the methods used in treatment”:
Although[] the type of traumatic tooth loss alleged by
Inmate Wilson would be diagnosed visually, the visual
6
signature of tooth loss as the result of trauma is radically
different and readily distinguishable from that of chronic
tooth decay. Characteristics of traumatic tooth loss
include but are not limited to: bruising, bleeding,
swelling, physical deformation of the tooth itself,
chipping, cracking, and total or partial tooth loss. As is
indicated by Inmate Wilson’s medical records, no such
evidence of trauma existed. From July of 2000, until the
present, Inmate Wilson’s physical manifestations of his
dental problems manifested themselves as substantial tooth
decay, breaking of teeth, pain, and sensitivity. No
evidence presented in the medical record and at no point
during my examination of Inmate Wilson did he present any of
the symptoms characteristic of traumatic tooth loss.
Id. at ¶ 12.
Dr. Taylor concluded that “[t]here is no medical
evidence to support Inmate Wilson’s claim that tooth Nos. 13 and 30
were damaged by trauma and then extracted because of the trauma.
These two teeth were extracted on account of severe tooth decay and
periodontitis.”
Id. at ¶ 13.
In support of the Motion for Summary Judgment, defendant offers
the Taylor Affidavit, which includes statements and opinions similar
to those contained in the Taylor Report.
For example, Dr. Taylor
avers that tooth number 13 and tooth number 30 “were extracted because
of chronic tooth decay and periodontitis, not because of damage caused
by blunt force[,]” explaining that traumatic tooth loss is very
different from periodontitis and chronic tooth decay in terms of a
patient’s symptoms, diagnostic standards and treatment.
Affidavit, ¶¶ 3-4.
Taylor
According to Dr. Taylor, plaintiff’s dental file
“reveals that Inmate Wilson has suffered from severe periodontitis and
chronic tooth decay for over a decade.”
Id. at ¶ 5.
See also id. at
¶ 6 (detailing examples “demonstrating the general disrepair of Inmate
Wilson’s teeth” other than tooth number 13 and tooth number 30).
Dr.
Taylor also averred that plaintiff “has had a long history of dental
7
problems with his upper left second bicuspid (#13) and lower right
first molar (#30)[.]”
Id. at ¶ 8.
In describing these problems, Dr.
Taylor specifically avers that he “smoothed down the root tip [of
tooth number 13] on May 18, 2006.”
Id. at ¶ 8(I).
Dr. Taylor also “personally extracted tooth #30.”
On May 27, 2008,
Id. at ¶ 8(j).
Dr. Taylor goes on to aver that there is no evidence of trauma to
these teeth and “[n]o evidence presented in the medical record and at
no point during my examinations of Inmate Wilson did he present any of
the symptoms characteristic of traumatic tooth loss.”
Id. at ¶ 10.
Dr. Taylor further avers that
[t]here is no medical evidence to support Inmate Wilson’s
claim that tooth Nos. 13 and 30 were damaged by trauma and
then extracted because of the trauma. I personally worked
on these two teeth and know with 100% certainty that these
two teeth were extracted on account of severe tooth decay
and periodontitis, not on account of a traumatic injury that
allegedly occurred on January 3, 2008.
Id. at ¶ 11.
Plaintiff moves to strike the Taylor Affidavit and to exclude Dr.
Taylor’s medical opinions because his testimony is unreliable and
unduly prejudicial.
A.
Motion to Strike Taylor Affidavit.
Dr. Taylor’s Causation Opinion as a Treating Provider
Defendant suggests that Rule 702 of the Federal Rules of Evidence
(providing that witnesses who qualify as an expert may testify if they
meet certain criteria) does not apply to Dr. Taylor because he is a
treating provider testifying about facts based on his personal
observation, i.e., a fact witness.
Doc. No. 134, pp. 2, 4.
Plaintiff
disagrees, arguing that (1) a treating provider must tender an expert
“disclosure” when offering a causation opinion in anticipation of
litigation as opposed to during the course of diagnosis or treatment;
8
and (2) Dr. Taylor cannot “expand his testimony to include opinions
based on a review of other dental records and/or prior experience,
without satisfying the requirements of Rule 702.”
Doc. No. 141, pp.
2-3 (citing, inter alia, Mohney v. USA Hockey, Inc., No. 04-3227, 138
Fed. Appx. 804, at *811 (6th Cir. July 14, 2005)).
The Court construes plaintiff’s first argument as a challenge to
Dr. Taylor’s causation opinions based on a failure to produce a report
written by Dr. Taylor pursuant to Fed. R. Civ. P. 26(a)(2)(B).4
That
rule requires disclosure of witnesses who are “retained or specially
employed to provide expert testimony in the case or one whose duties
as the party’s employee regularly involve giving expert testimony.”
Id.
A report, which must be prepared and signed by the witness, must
accompany this disclosure and must comply with certain requirements.
Id.
However, witnesses who are not “retained or specially employed to
provide expert testimony” are not required to provide this written
report.
Fed. R. Civ. P. 26(a)(2)(C).
Instead, Rule 26(a)(2)(C)
requires only that a party utilizing the testimony of such a witness
disclose: (1) “the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or 705;” and
(2) “a summary of the facts and opinions to which the witness is
expected to testify.”
Fed. R. Civ. P. 26(a)(2)(C)(I), (ii).
Rule
4
Plaintiff apparently relies on Mohney for the proposition that, to the
extent a treating physician expresses a causation opinion articulated outside
the scope of treatment, that physician must produce the report of a specially
retained expert. Assuming that Mohney stands for the proposition cited, the
Court notes that Mohney predates the 2010 amendments to Rule 26, which, inter
alia, added subsection (a)(2)(C) and clarified that a treating provider is not
required to produce the detailed report required of a specially retained
expert. The Court therefore declines to apply Mohney to this case. In any
event, the Court is not persuaded that Dr. Taylor, who treated both of
plaintiff’s teeth, does not qualify as a treating provider for all purposes.
9
26(a)(2)(C) was promulgated in 2010 in an effort to
resolve[] a tension that has sometimes prompted
courts to require reports under Rule 26(a)(2)(B)
even from witnesses exempted from the report
requirement. An (a)(2)(B) report is required
only from an expert described in (a)(2)(B).
Fed. R. Civ. P. 26(a)(2)(C) Advisory Committee’s Notes on 2010
Amendments.
Rule 26(a)(2)(C) witnesses, such as physicians, may
testify as both a fact witness and an expert witness.
Id.
Here, Dr. Taylor is a treating dentist who was not “retained or
specially employed to provide expert testimony in this case[.]”
Similarly, Dr. Taylor does not qualify as an employee “whose duties .
. . regularly involve giving expert testimony” as contemplated by the
Rule.
See Deposition of Dr. Clayborn Taylor, Doc. No. 117 (“Taylor
Depo.”), p. 55 (last deposed 18 to 20 years before).
Therefore, it is
the disclosure requirements of Fed. R. Civ. P. 26(a)(2)(C), not those
of Rule 26(a)(2)(B), that apply to Dr. Taylor.
See also Fed. R. Civ.
P. 26(a)(2)(C) Advisory Committee’s Notes on 2010 Amendments; Burgess
v. Fischer, No. 3:10-cv-24, 2012 U.S. Dist. LEXIS 27517, at *2-3 (S.D.
Ohio Mar. 2, 2012) (stating that disclosures of treating physicians
must comply with Rule 26(a)(2)(C)).
As discussed supra, defendant previously disclosed Dr. Taylor and
Dr. Daniel Michael Clinchot as witnesses.
Defendant Leon Hill’s
Disclosure of Expert Testimony, Doc. No. 74.
Defendant represented
that these witnesses “will testify as treating physicians and experts
in their respective fields” and attached reports for both these
witnesses.
Id.
Plaintiff has not specified any deficiency in this
5
This deposition was filed under seal. However, the quoted excerpts
contained herein do not contain personal identifying information.
10
disclosure under Rule 26(a)(2)(C).
The Court concludes that defendant
has properly disclosed Dr. Taylor as a non-specially retained expert
witness.
The Court next addresses the parties’ dispute as to whether Dr.
Taylor’s testimony is subject to Rule 702.
Under Rule 702, 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” the testimony meets certain requirements.
By disclosing
Dr. Taylor pursuant to Fed. R. Civ. P. 26, defendant has already
implicitly conceded that Rule 702 applies, at least in some measure,
to Dr. Taylor’s testimony.
See Fed. R. Civ. P. 26(a)(2)(A), (C)(I).
Moreover, the United States Court of Appeals for the Sixth Circuit has
held that a treating provider’s testimony is subject to the
reliability requirements set forth in Daubert v. Merrell Dow Pharms.,
509 U.S. 579 (1993).
Gass v. Marriot Hotel Servs., Inc., 558 F.3d
419, 426 (6th Cir. 2009).
See also Thomas v. Novartis Pharm. Corp.,
Nos. 09-6147, 09-6272, 09-6274, 443 Fed. Appx. 58, at *61 (6th Cir.
Aug. 23, 2011).
This Court therefore rejects defendant’s contention
that Dr. Taylor’s testimony is not subject to Rule 702 simply by
virtue of his status as a treating dentist.
B.
Reliability
Invoking Fed. R. Evid. 702, plaintiff seeks to strike the Taylor
Affidavit and to preclude Dr. Taylor from offering “unreliable” expert
testimony.
1.
Standard
11
The United States Supreme Court has held that the Federal Rules
of Evidence, particularly Rule 702, require the trial court to act as
a gatekeeper of expert evidence.
Daubert, 509 U.S. at 597.
See also
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (stating that
the gatekeeper function applies to all expert testimony).
Rule 702
specifically 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 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.
Fed. R. Civ. P. 702.
As the gatekeeper, a trial court must “ensure
that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.”
Daubert, 509 U.S. at 589.
A trial court has
broad discretion when carrying out its gatekeeping function.
Nolan v.
Memphis City Sch., 589 F.3d 257, 265 (6th Cir. 2009) (“Broad
discretion is given to district courts in determinations of
admissibility . . . and those decisions will not be lightly
overturned.”) (quoting Tompkin v. Philip Morris USA, Inc., 362 F.3d
882, 897 (6th Cir. 2004)) (internal quotation marks omitted).
The Sixth Circuit has construed Daubert to mandate a two-step
inquiry.
2000).
See United States v. Smithers, 212 F.3d 306, 313 (6th Cir.
First, as to reliability, a trial court must preliminarily
assess whether the underlying reasoning or methodology of the
proffered expert testimony is scientifically valid.
12
Id. (quoting
Daubert, 509 U.S. at 592-93).
That is, expert testimony must be based
on “more than subjective belief or unsupported speculation.”
Daubert,
509 U.S. at 590 (explaining the meaning of the term “scientific
knowledge” as contemplated in Rule 702).
Daubert provided four non-
exclusive factors to assist the trial court’s determination of
reliability:
(1) whether a “theory or technique . . . can be (and has
been) tested”; (2) whether the theory “has been subjected to peer
review and publication”; (3) whether the technique has a high “known
or potential rate of error” and whether standards controlling the
technique’s operation exist; and (4) whether the theory or technique
has been generally accepted by the relevant scientific community.
at 592-94.
Id.
The Sixth Circuit has “recognized that the Daubert factors
‘are not dispositive in every case’ and should be applied only ‘where
they are reasonable measures of the reliability of expert testimony.’”
Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 682 (6th Cir. 2010)
(quoting In re Scrap Metal, 527 F.3d 517, 529 (6th Cir. 2008)).
See
also Kumho Tire, 526 U.S. at 150 (stating that the trial judge may
consider one or more of the Daubert factors, which may or may not be
pertinent depending on the particular case, in assessing reliability).
The inquiry as to reliability is therefore “very flexible[.]”
Johnson
v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 430 (6th Cir. 2007).
Second, a trial court must determine whether the proposed expert
testimony is relevant and will assist the trier of fact.
212 F.3d at 313 (citing Daubert, 509 U.S. at 592-93).
Smithers,
That is, “there
must be a ‘fit’ between the inquiry in the case and the testimony[.]”
United States v. Bonds, 12 F.3d 540, 555 (6th Cir. 1993).
“In short, under Daubert and its progeny, a party proffering
13
expert testimony must show by a preponderance of proof that the expert
whose testimony is being offered is qualified and will testify to
scientific knowledge that will assist the trier of fact in
understanding and disposing of relevant issues.”
Sigler v. Am. Honda
Motor Co., 532 F.3d 469, 478 (6th Cir. 2008) (citing Pride v. BIC
Corp., 218 F.3d 566, 578 (6th Cir. 2000)) (internal quotation marks
omitted).
2.
Discussion
In support of his contention that Dr. Taylor’s opinions are based
on unreliable methodology, plaintiff advances two arguments:
(1) the
Taylor Report purports to diagnose plaintiff’s periodontitis based on
“the Armitage classification system,” i.e., a system with which Dr.
Taylor is not familiar; and (2) defendant has not produced any dental
records diagnosing plaintiff, prior to January 3, 2008, with
periodontitis or chronic tooth decay.
Motion to Strike Taylor
Affidavit, pp. 4-6; Reply of Plaintiff Lawrence E. Wilson in Support
of Motion to Strike the Affidavit of Dr. Clayborn Taylor and to
Exclude His Medical Opinions, Doc. No. 141, pp. 3-4.
The Court shall
address each argument in turn.
a.
“Armitage classification system”
Dr. Taylor avers that plaintiff’s tooth number 13 had
deteriorated to nothing more than a root tip that he smoothed down on
May 18, 2006.
Taylor Affidavit, ¶ 8(I).
According to Dr. Taylor,
tooth number 13 was later extracted by another dentist on April 24,
2008 “because dental disease and a tooth fracture diagnosed on
November 18, 2005 had decayed the tooth to nothing more than a sanded
14
down root tip.”
Id.
Dr. Taylor personally extracted tooth number 30
on May 27, 2008, because of “gross decay.
extraction, there was no sign of trauma.
At the time of the
It was extracted because of
its continued deterioration caused by severe decay and periodontitis.”
Id. at ¶ 8(j).
In sum, Dr. Taylor “know[s] with 100% certainty that
these two teeth were extracted on account of severe tooth decay and
periodontitis, not on account of a traumatic injury that allegedly
occurred on January 3, 2008.”
Id. at ¶ 11.
Addressing plaintiff’s diagnosis of periodontitis, the Taylor
Report states that “[d]iagnostics are based on a classification system
defined by Armitage in 1999[.]”
Taylor Report, ¶ 10.
When questioned
during his deposition about this statement, Dr. Taylor could not
describe what plaintiff’s counsel characterized as the “Armitage
classification system”:
Q:
At the beginning of that, towards the beginning of
that paragraph [paragraph 10 of the Taylor Report],
you talk about the Armitage classification system?
A:
Okay.
Q:
Can you describe that for me, what that is?
A:
No.
Q:
Okay. So you don’t know if that classification system
was followed in this case, in order to diagnose Mr.
Wilson with periodontitis, correct?
A:
No, I don’t.
Taylor Depo., pp. 60-61.
However, Dr. Taylor went on to explain another method of
diagnosing periodontitis:
Q:
Aside from the Armitage method or classification
system, are you aware of any other method to diagnose
periodontitis?
15
A:
I had just –- clinical exam and radiographic exam.
*
*
*
*
Q:
Sure. Other than this Armitage classification system,
you mentioned that periodontitis can be diagnosed
through clinical examination and radiographic
examination?
A:
Yes.
Q:
My question to you is, what do you need to see in your
clinical and/or radiographic examination to allow you
to make that diagnosis?
A:
Yeah, it’s based upon bone loss.
Q:
Okay.
A:
You can do it with a –- with a periodontal probe,
visual exam, periodontal probe, radiographically, with
radiographs.
Q:
Okay. Do you know if, in fact, that process has
occurred in this case in order to diagnose Mr. Wilson
with periodontitis?
A:
Physical examination and radiographic examination,
yes.
Q:
Who, do you know who, if it wasn’t yourself, did that
clinical exam and/or radiographic exam?
A:
No.
Q:
Okay. Would it be fair to say that you didn’t do that
clinical exam and radiographic exam in order to
diagnose periodontitis?
A:
I didn’t, I don’t think I indicated anywhere that I
did an exam and just specifically for that, as a
general statement, yes, you know, you see these things
that are evident.
And how do you do that clinically?
Taylor Depo., pp. 61-63.
A fair reading of Dr. Taylor’s entire deposition makes clear
that, although Dr. Taylor did not recognize the word “Armitage” or the
term “Armitage classification system,” he did identify a method of
16
diagnosing periodontitis through clinical and radiographic
examinations.
Plaintiff concedes as much, acknowledging that Dr.
Taylor explained that periodontitis can be diagnosed through this
method.
Motion to Strike Taylor Affidavit, p. 5.
Similarly, Dr. Taylor’s report explained that plaintiff’s
diagnosis of chronic tooth decay “was based on an equally accepted
method of diagnosis” that includes a visual examination and x-rays.
Taylor Report, ¶ 11.
Dr. Taylor elaborated on this method of
diagnosing chronic tooth decay in his deposition:
Q:
Okay. In the next paragraph of your report, paragraph
No. 11, the first sentence –- well, let me, I will let
you take a look at that before asking questions.
A:
Okay.
Q:
You talk about, quote, equally accepted method, end
quote, for diagnosing chronic tooth decay.
My question is, what is that equally accepted method,
that’s the first sentence, by the way?
A:
Okay. Equally accepted method, tooth decay is based
upon radiographic examination and a visual exam.
Q:
Okay. And did you conduct any –- a clinical exam
and/or radiographic exam of Mr. Wilson in this case
sufficient to allow you to diagnose Mr. Wilson with
chronic tooth decay?
A:
Yes.
*
*
*
*
Q:
As you sit here today, do you recall specifically
reviewing radiographs that would allow you to
diagnose, or to aid in your diagnosis of the chronic
tooth decay?
A:
Yes.
Q:
Do you have a recollection of the number of x-rays,
radiographs that you reviewed?
A:
Just when I reviewed my notes, at least the panorex and four
17
bitewings.
Taylor Depo., pp. 63-64.
Later in his deposition, Dr. Taylor confirmed that a clinical and
radiographic exam is an objective method of diagnosing periodontitis
and chronic tooth decay:
Q:
Dr. Taylor, would you agree that an x-ray would
provide objective evidence to support a conclusion
that either Mr. Wilson had or didn’t have
periodontitis or chronic tooth decay, either before–
before the teeth were extracted in April and May of
2008?
A:
Yeah, an x-ray would support that.
Q:
Okay. And other than a clinical examination, there is
really no other objective way to verify that?
A:
Clinical and radiographic, yes.
Taylor Depo., p. 70.
Dr. Taylor is a dentist licensed by the State of Ohio since 1984
who has worked for the ODRC for over five years and who provided
dental treatment to plaintiff’s teeth.
Taylor Affidavit, ¶ 2.
Taylor Report, ¶¶ 1, 3, 12;
Dr. Taylor has identified an objective method
of diagnosing periodontitis and chronic tooth decay apart from the
“Armitage classification system.”
There is no evidence before the
Court, or even argument, that a visual clinical exam combined with a
radiographic exam is an unacceptable or unreliable method of
diagnosis.
Moreover, the Sixth Circuit has previously acknowledged
that “[a]dmissibility under Rule 702 does not require perfect
methodology.”
Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 181-82
(6th Cir. 2009) (permitting testimony where physician “performed as a
competent, intellectually rigorous treating physician in identifying
the most likely cause of [plaintiff’s] injury”).
18
Under these
circumstances, the Court cannot conclude that Dr. Taylor’s inability
to explain the word “Armitage” as utilized in his report is fatal or
that the alternative method of diagnosis described by Dr. Taylor, an
experienced dentist, and utilized in this case is unreliable and
therefore inadmissible.
See, e.g., Johnson, 484 F.3d at 430 (stating
that the inquiry as to reliability is “very flexible”); United States
v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993) (“[A]ny
weaknesses in the factual basis of an expert witness’ opinion,
including unfamiliarity with standards, bear on the weight of the
evidence rather than on its admissibility.”).
Moreover, Rule 26(a)(2) itself further supports the Court’s
conclusion that Dr. Taylor’s failure to recognize the word “Armitage,”
as used in his report, is not fatal to his testimony.
As discussed
supra, a non-specially retained treating provider, such as Dr. Taylor,
need not personally prepare his own report.
26(a)(2)(c).
See Fed. R. Civ. P.
Dr. Taylor’s failure to recognize one particular term
appearing in that report, therefore does not render Dr. Taylor’s
testimony as an expert so unreliable as to preclude his testimony.
b.
No dental records diagnosing plaintiff with
periodontitis or chronic tooth decay prior to
January 3, 2008
Plaintiff next argues that the Court should exclude Dr. Taylor’s
testimony because defendant has not produced any dental records
diagnosing plaintiff, prior to January 3, 2008, with periodontitis or
chronic tooth decay.
pp. 3-4.
Motion to Strike Taylor Affidavit; Doc. No. 141,
For example, plaintiff contends that ODRC policy requires
that either a panoramic or periapical x-ray be taken before a tooth is
extracted.
Id. at 4 (citing Taylor Depo., pp. 23-24, 26, 43).
19
Plaintiff complains that none of the bitewing radiographs that
defendant belatedly produced and upon which Dr. Taylor purportedly
relied “have been taken on the days Mr. Wilson had tooth No. 13 or
tooth No. 30 extracted.”
Id. at 3-4.
Therefore, plaintiff argues,
there is no objective basis for confirming or refuting the conclusion
that tooth number 13 and tooth number 30 were extracted because of
periodontitis and/or chronic tooth decay.
This Court disagrees.
Id. at 4.
“An expert’s opinion must be supported by
‘more than subjective belief and unsupported speculation’ and should
be supported by ‘good grounds,’ based on what is known.”
McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800-01 (6th Cir. 2000) (quoting
Pomella v. Regency Coach Lines, Ltd., 899 F. Supp. 335, 342 (E.D.
Mich. 1995)).
“Where an expert’s testimony amounts to ‘mere guess or
speculation,’ the court should exclude his testimony, but where the
opinion has a reasonable factual basis, it should not be excluded.”
L.E. Cooke Co., 991 F.2d at 342.
Here, Dr. Taylor’s opinions are not
mere speculation and enjoy reasonable support in the record.
For
instance, Dr. Taylor has identified specific dental records containing
clinical exams and/or radiographic exams that support his diagnosis of
periodontitis and/or chronic tooth decay.
See Taylor Report, ¶¶ 5-6,
8; Taylor Affidavit, ¶¶ 5-8; Taylor Deposition, pp. 32-56; 63-64.
Moreover, although plaintiff specifically complains that none of
the x-rays recently produced appear to have been taken on the days
that plaintiff’s teeth were actually extracted, the Court notes that
Dr. Taylor’s testimony does not support plaintiff’s contention that
ODRC policy requires that x-rays be taken on the day of the
extraction.
See Taylor Depo., p. 43 (suggesting that x-rays taken
20
within six months to a year prior to an extraction are considered
recent).
Regardless, to the extent that plaintiff complains that
defendant has not sufficiently explained how certain x-rays support
Dr. Taylor’s diagnoses, this criticism would go to the weight of the
evidence rather than to its admissibility.
See, e.g., In re Scrap
Metal Antitrust Litig., 527 F.3d 517, 531-32 (6th Cir. 2008) (stating
that questions as to accuracy of expert opinion went to the weight of
the evidence rather than to its admissibility); L.E. Cooke Co., 991
F.2d at 342.
See, e.g., Daubert, 509 U.S. at 596 (“Vigorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.”).
C.
Prejudice
In his Motion to Strike Taylor Affidavit, plaintiff initially
argued that the Court should strike Dr. Taylor’s testimony as
prejudicial because defendant failed to produce the x-rays relied upon
by Dr. Taylor.
Id. at 6.
However, defendant later produced those x-
rays and plaintiff appears to have abandoned this argument as a basis
for excluding Dr. Taylor’s testimony.
141.
Doc. No. 134, p. 3; Doc. No.
Although the Court does not condone defendant’s inexplicably
untimely disclosure of the x-rays, the Court cannot conclude that
defendant’s belated production provides a basis for excluding Dr.
Taylor’s testimony under Fed. R. Evid. 403.
Plaintiff has now been
afforded the opportunity to evaluate Dr. Taylor’s testimony in light
of this evidence and, as discussed supra, plaintiff’s criticism of Dr.
Taylor’s testimony would address merely the weight, rather than the
admissibility, of that testimony.
Accordingly, under these
21
circumstances, the Court concludes that its broad discretion, see
Nolan v. Memphis City Sch., 589 F.3d 257, 265 (6th Cir. 2009), is
better exercised in permitting Dr. Taylor’s testimony.
III. MOTION TO STRIKE CLINCHOT AFFIDAVIT
Plaintiff alleges that, as another result of the incident of
January 3, 2008, “both of his hands have been diagnosed with nerve
damage (carpal tunnel) . . . .”
Complaint, p. 4. On November 1, 2010,
defendant disclosed Daniel Michael Clinchot, M.D., as one of two
“expert witnesses who will offer testimony at the trial of this
matter[.]”
Defendant Leon Hill’s Disclosure of Expert Testimony, p. 1
(attaching report of Dr. Clinchot, Doc. No. 74-2 (“Clinchot Report”)).
Defendant represents that Dr. Clinchot was “not specially retained by
Defendant in defense of this action” and that Dr. Clinchot “will
testify as [a] treating physician[] and expert[]” in his field.
Id.
In support of the Motion for Summary Judgment, defendant also offers
the Affidavit of Daniel M. Clinchot, ¶ 2, attached as Exhibit B to the
Motion for Summary Judgment (“Clinchot Affidavit”).
Dr. Clinchot is a medical doctor specializing in physical
medicine and rehabilitation who has worked at the Ohio State
University School of Medicine, College of Medicine, Department of
Physical Medicine and Rehabilitation, for the last 18 years.
2.
Id. at ¶
Dr. Clinchot, certified by the American Board of Electrodiagnostic
Medicine since 1994, serves as an associate professor in the College
of Medicine.
Id.
He is also the current Associate Program Director
for the Ohio State University’s Department of Physical Medicine and
Rehabilitation as well as the Associate Dean of the College of
22
Medicine.
Id.
Dr. Clinchot has performed “electrodiagnostic studies
on the general population and on inmates since 1992[,]” performing
“well over 8500 electrodiagnostic studies on inmates” and has
“diagnosed nerve injuries in inmates that were most likely the result
of handcuffs.”
Clinchot Report, p. 1.
According to Dr. Clinchot,
“[t]he prevalence of carpal tunnel syndrome in the general population
is about 50 cases per 1000 subjects.”
Clinchot Affidavit, ¶ 4.
In explaining carpal tunnel syndrome, Dr. Clinchot describes the
three different nerves in the hand and wrist:
Carpal tunnel syndrome is a compression of one of the nerves
in the wrist called the Median nerve. There are three major
nerves that enter the hand through the wrist. The Ulnar
nerve[] runs along the side of the wrist that is in line
with the little finger. The Superficial Radial Sensory
nerve which runs alongside the side of the wrist [is] in
line with the thumb. The Median nerve[] runs through the
center of the wrist.
Id. at ¶ 3.
According to Dr. Clinchot, “handcuff injuries almost
always involve the Superficial Radial Sensory nerve” because this
nerve
lies very superficially in the wrist and is at high risk to
be compressed against the bone by a handcuff. This
compression when significant enough will result in injury to
the Superficial Radial Sensory nerve. Additional injuries
can be seen in severe prolonged cases of handcuff
compression.
Id. at ¶ 5.
Dr. Clinchot is unaware of any handcuff compression that injures
only the Median nerve:
Injuries have been reported in the medical literature to
involve the Superficial Radial Sensory nerve and the Ulnar
nerve together, the Superficial Radial Sensory nerve, the
Ulnar nerve and the Median nerve together, and the
Superficial Radial Sensory nerve and Median nerve together.
I know of no cases in my career or in the medical literature
that describes an isolated case of Medial nerve injury from
23
a handcuff. This is because from a biomechanical standpoint
the Median nerve is deep in the wrist and relatively
protected by layers of tissue unlike the Superficial Radial
Sensory nerve.
Id. at ¶ 6.
After performing an electrodiagnostic study on plaintiff on May
14, 2008, Dr. Clinchot’s diagnosis was not consistent with a handcuff
injury:
The study revealed electrodiagnostic evidence for MildModerate Carpal Tunnel Syndrome. This diagnosis is
inconsistent with a handcuff injury. The Superficial Radial
Sensory nerve studies were normal as were the Ulnar nerve
studies. If inmate Wilson had a handcuff compression that
was severe enough to cause a Median nerve injury it would
have been severe enough to cause compression of the
Superficial Radial Sensory nerve as well. The way in which
the even circumferential compression of the metal of a tight
handcuff across the wrist is distributed it would have
additionally caused injury to the Superficial Radial Sensory
nerve if it was severe enough to cause injury to the Median
nerve.
Id. at ¶ 7.
Dr. Clinchot concluded that plaintiff suffers from idiopathic
Carpal Tunnel Syndrome, a diagnosis that is inconsistent with a
handcuff injury.
Id. at ¶ 9.
Dr. Clinchot also refers to plaintiff’s
prison medical records, which document plaintiff’s complaints of
“right wrist pain with loss of sensation to the fingertips” prior to
the date of the alleged injury on January 3, 2008, as further support
for his diagnosis of idiopathic carpal tunnel syndrome.
Id. at ¶ 8.
Plaintiff moves to strike the Clinchot Affidavit and to exclude
Dr. Clinchot’s medical opinions because his testimony is unreliable
and unduly prejudicial.
A.
Motion to Strike Clinchot Affidavit.
Dr. Clinchot’s Causation Opinion as a Treating Physician
In seeking to strike the Clinchot Affidavit, plaintiff does not
24
challenge Dr. Clinchot’s general qualifications nor does plaintiff
seek to preclude Dr. Clinchot’s explanation as to the testing he
performed and the conclusion that the study showed evidence of carpal
tunnel syndrome.
Motion to Strike Clinchot Affidavit, pp. 4-6; Doc.
No. 140, pp. 1-3.
Instead, plaintiff contends that, because Dr.
Clinchot was not treating plaintiff and therefore had no reason to
explore the issue of causation, Dr. Clinchot may not offer causation
opinions formed in the context of litigation “without tendering an
expert disclosure.”
Doc. No. 140, pp. 2-3.
This Court disagrees.
First, the record supports a finding that
Dr. Clinchot acted as plaintiff’s treating physician.
Plaintiff
testified that, following the incident of January 3, 2008, he sought
medical treatment for pain in his hands.
Plaintiff Depo., pp. 50-51;
Exhibit 7, attached thereto (containing plaintiff’s medical record
dated April 5, 2008, noting plaintiff’s complaint of pain in his hands
and burning and tingling in his forearm(s)).
that he saw a doctor on May 14, 2008.
Plaintiff also testified
Plaintiff Depo., pp. 50-51. On
that same date, Dr. Clinchot – who performs diagnostic studies at
Correction Medical Center (“CMC”) upon referral by an institution
doctor or consultant.
Clinchot Deposition, pp. 27-28 – saw plaintiff,
performed an electrodiagnostic study and diagnosed plaintiff with
bilateral Mild-Moderate Carpal Tunnel Syndrome.
Deposition of Daniel
Michael Clinchot, M.D., Doc. No. 116,6 pp. 27, 32, 34 (“Clinchot
Depo.”); Exhibit 4, attached thereto (electrodiagnostic study dated
May 14, 2008 diagnosing plaintiff with “Bilateral Mild-Moderate Carpal
6
This deposition was filed under seal. However, the quoted excerpts
contained herein do not contain personal identifying information.
25
Tunnel Syndrome”). Although Dr. Clinchot could not recall how the
specific request for testing plaintiff came about, he testified that
he usually visits CMC one day per week and is provided a schedule that
lists the names of inmates whom he will see.
Id. at 27-28, 30.
The evidence before this Court establishes that (1) plaintiff
complained of pain in his hands and forearm(s) and sought medical
treatment prior to being seen by Dr. Clinchot; (2) Dr. Clinchot, who
performs diagnostic studies at the request of CMC physicians or
consultants, administered such a test to plaintiff on May 14, 2008,
and diagnosed carpal tunnel syndrome on the same day; and (3)
plaintiff did not file the Complaint until June 10, 2008.
Under these
circumstances, the Court concludes that Dr. Clinchot is appropriately
characterized as plaintiff’s treating physician.
Second, plaintiff’s argument that Dr. Clinchot cannot offer
causation testimony without first tendering an expert “disclosure,”
Doc. No. 140, pp. 2-3 ((citing, inter alia, Mohney v. USA Hockey,
Inc., No. 04-3227, 138 Fed. Appx. 804, at *811 (6th Cir. July 14,
2005)), fails for the same reasons discussed supra in connection with
Dr. Taylor’s testimony.
On November 1, 2010, defendant disclosed Dr.
Clinchot as an expert witness and produced the Clinchot Report, which
contains Dr. Clinchot’s curriculum vitae.
Disclosure of Expert Testimony.
Defendant Leon Hill’s
Nowhere has plaintiff explained how
this disclosure fails to comport with the requirements of Fed. R. Civ.
P. 26(a)(2)(c) relating to non-specially retained experts.
Under
these circumstances, Dr. Clinchot’s testimony will not be foreclosed
because of a failure to comply with the requirements of Fed. R. Civ.
P. 26(a)(2).
26
B.
Reliability
Plaintiff also argues that Dr. Clinchot’s causation testimony is
unreliable because his study was incomplete.
Clinchot Affidavit, pp. 4-6.
Motion to Strike
More specifically, plaintiff complains
that Dr. Clinchot failed to require plaintiff to complete a pre-study
form, to discuss plaintiff’s medical history, or to ask plaintiff
about the alleged cause of plaintiff’s pain.
Plaintiff also
criticizes Dr. Clinchot’s failure to perform a needle
electromyography, a test that could purportedly either confirm or rule
out the existence of cervical radiculopathy.7
As a result of these
omissions, plaintiff argues, Dr. Clinchot can say only that, on the
date of the study, testing documented Mild-Moderate Carpal Tunnel
Syndrome. According to plaintiff, Dr. Clinchot cannot say whether
plaintiff suffered some other condition. Plaintiff therefore argues
that Dr. Clinchot cannot opine, with any reliability, that plaintiff’s
carpal tunnel syndrome is inconsistent with a handcuff injury.
Plaintiff’s arguments are not well-taken.
First, an expert is
permitted to “tie observations to conclusions through the use of . . .
general truths derived from . . . specialized experience.”
Kumho
Tire, 526 U.S. at 148 (internal quotation marks omitted).
See also
Fed. R. Evid. 702 advisory committee’s note on 2000 amendments (“In
certain fields, experience is the predominant, if not sole, basis for
a great deal of reliable expert testimony.”).
7
When an expert relies
Cervical radiculopathy is a dysfunction of a nerve root of the cervical
spine, which plaintiff suggests could have caused his pain. Plaintiff
contends that the failure to perform a needle electromyography is significant
because Dr. Clinchot admitted that cervical radiculopathy could be caused by
being slammed against a wall.
27
“solely or primarily on experience, then the witness must explain how
that experience leads to the conclusion reached . . . and how that
experience is reliably applied to the facts.”
Thomas v. City of
Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005) (quoting Fed. R. Evid.
702 advisory committee’s note).
Here, Dr. Clinchot, whose
qualifications are not challenged by plaintiff, has done exactly that.
According to Dr. Clinchot, carpal tunnel syndrome is a compression of
the Median nerve in the wrist.
Clinchot Affidavit, ¶ 3.
Conversely,
injuries resulting from the use of handcuffs “almost always involve
the Superficial Radial Sensory nerve” because that nerve “lies very
superficially in the wrist and is at high risk to be compressed
against the bone by a handcuff.”
Id. at ¶ 5.
Dr. Clinchot further
averred that he knows “of no cases in my career or in the medical
literature that describes an isolated case of Medial nerve injury from
a handcuff.”
Id. at ¶ 6.
After performing the electrodiagnostic
study on May 14, 2008, which revealed that plaintiff’s Superficial
Radial Sensory nerve and Ulnar nerve were normal, Dr. Clinchot
diagnosed Mild-Moderate Carpal Tunnel Syndrome.
Id. at ¶ 7.
Dr.
Clinchot also concluded, based on these findings, that plaintiff’s
diagnosis is inconsistent with a handcuff injury.
Id. at ¶¶ 7, 9.
Under these circumstances, the Court concludes that Dr. Clinchot, in
opining as to causation, properly relied on his experience and applied
that experience to the facts in this case.
See, e.g., Kumho Tire, 526
U.S. at 148; Thomas, 398 F.3d at 432.
Second, the Court is not persuaded by plaintiff’s argument that
28
Dr. Clinchot’s failure to perform a differential diagnosis8 and to
eliminate other causes of plaintiff’s pain, such as cervical
radiculopathy, is fatal to Dr. Clinchot’s testimony. A differential
diagnosis is simply one of the acceptable methods that may be used in
determining causation.
See, e.g., Hardyman, 243 F.3d at 260 (“One
appropriate method for making a determination of causation for an
individual instance of disease is known as ‘differential
diagnosis.’”); Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 178 (6th
Cir. 2009) (same).
Plaintiff points to no authority that requires the
differential diagnosis method as a predicate to the admission of a
physician’s testimony.
Indeed, “in order to be admissible on the
issue of causation, an expert’s testimony need not eliminate all other
possible causes of the injury.”
Conwood Co., L.P. v. U.S. Tobacco
Co., 290 F.3d 768, 794 (6th Cir. 2002) (emphasis in original) (quoting
Jahn v. Equine Servs, PSC, 233 F.3d 382, 388 (6th Cir. 2000))
(internal quotation marks omitted).
See also Daugherty v. Chubb Group
of Ins. Cos., No. 3:08-CV-48-R, 2011 U.S. Dist. LEXIS 131679, at *20
(W.D. Ky. Nov. 14, 2011) (“[T]he Best opinion does not stand for the
proposition that a doctor offering an opinion as to causation must use
a differential diagnosis in forming that opinion. . . . The Best Court
did not hold that differential diagnosis is the only method doctors
could use when forming causation opinions.”).
8
Accordingly, Dr.
A differential diagnosis is “the method by which a physician determines
what disease process caused a patient’s symptoms. The physician considers all
relevant potential causes of the symptoms and then eliminates alternative
causes based on a physical examination, clinical tests, and a thorough case
history.” Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001)
(quoting Federal Judicial Center, Reference Manual on Scientific Evidence 214
(1994) (internal quotation marks omitted)).
29
Clinchot’s failure to rule out cervical radiculopathy, or other
causes, as the source of plaintiff’s pain does not render Dr.
Clinchot’s testimony unreliable.
Finally, plaintiff complains that Dr. Clinchot failed to take
plaintiff’s medical history, to discuss plaintiff’s cause of pain or
to otherwise require plaintiff to complete any questionnaire before
conducting the diagnostic study.
Plaintiff offers no authority that
such failures serve to preclude otherwise reliable expert testimony.
This Court concludes that they do not. As with Dr. Taylor, plaintiff
will have the opportunity at trial to attack Dr. Clinchot’s opinion,
but the Court will not bar his testimony.
See, e.g., Daubert, 509
U.S. at 596.
C.
Prejudice
Plaintiff also argues that Dr. Clinchot’s testimony is
prejudicial and should be excluded under Fed. R. Civ. P. 403 because
the Court did not assure that plaintiff’s expert was given the
opportunity to replicate Dr. Clinchot’s tests or otherwise perform
“more complete testing.”
Motion to Strike Dr. Clinchot’s Affidavit,
p. 6.
A court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice[.]”
Fed. R. Evid. 403.
“In order to establish that the evidence should be
excluded, it is not sufficient to suggest that the ‘legitimate
probative force of the evidence’ would result in damage to the
[party’s] case, but rather that the evidence would ‘tend[] to suggest
[a] decision on an improper basis.’”
United States v. Poulsen, 655
F.3d 492, 509 (6th Cir. 2011) (quoting United States v. Newsom, 452
30
F.3d 593, 603 (6th Cir. 2006)).
The availability of other types of
proof is one factor to be considered when balancing unfair prejudice
against probative value under Rule 403.
United States v.
Merriweather, 78 F.3d 1070, 1077 (6th Cir. 1996).
A district court
has broad discretion when making this Rule 403 determination,
considering the evidence “in the light most favorable to its
proponent, maximizing its probative value and minimizing its
prejudicial effect.”
Poulsen, 655 F.3d at 509 (internal quotation
marks omitted).
On February 4, 2011, plaintiff’s counsel issued a subpoena duces
tecum to ODRC, commanding that ODRC transport plaintiff to a private
doctor’s office in Gahanna, Ohio, for a physical examination.
See
Exhibit 1 attached to Motion to Quash Subpoena, Doc. No. 93.
ODRC
filed a motion to quash that subpoena, which motion was granted.
Opinion and Order, Doc. No. 105.
In concluding that the requested
subpoena would unduly burden ODRC and would create an unnecessary and
substantial security risk, the Court also found no authority in
support of plaintiff’s use of a subpoena under Fed. R. Civ. P. 45.
Id. at 3.
Decisions from other circuits supported the Court’s
conclusion.
Id. at 3-4 (citing Ivey v. Harney, 47 F.3d 181 (7th Cir.
1995) (holding that requiring a correctional institution to transport
an inmate for an independent medical examination to support his § 1983
claim is not authorized by either the habeas corpus statute or the All
Writs Act)).
The Court concludes that Dr. Clinchot’s testimony is not
prejudicial simply because the Court denied plaintiff’s request for
his own additional medical exam.
Here, all the information relied
31
upon by Dr. Clinchot, plaintiff’s treating physician, is also
available to plaintiff and to any expert utilized by plaintiff. This
factor weighs in favor of admissibility.
1077.
Cf. Merriweather, 78 F.3d at
Moreover, plaintiff will have the opportunity to challenge the
sufficiency of Dr. Clinchot’s opinion through vigorous crossexamination.
The Court cannot conclude that the prejudicial value of
Dr. Clinchot’s testimony substantially outweighs its probative value.
IV.
MOTION FOR SUMMARY JUDGMENT
Defendant has moved for summary judgment on plaintiff’s claim of
excessive force in violation of plaintiff’s rights under the Eighth
Amendment.
A.
Standard
The standard for summary judgment is well established.
This
standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part:
The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a).
In making this determination, the evidence
must be viewed in the light most favorable to the non-moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
Summary judgment
will not lie if the dispute about a material fact is genuine, “that
is, if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.”
477 U.S. 242 (1986).
Anderson v. Liberty Lobby, Inc.,
However, summary judgment is appropriate if the
opposing party fails to make a showing sufficient to establish the
existence of an element essential to that party’s case and on which
that party will bear the burden of proof at trial.
32
Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
The mere existence of a scintilla
of evidence in support of the opposing party’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the opposing party.
Anderson, 477 U.S. at 251.
The party moving for summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of material fact.
323.
Catrett, 477 U.S. at
Once the moving party has met its initial burden, the burden
then shifts to the nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.”
Anderson, 477 U.S.
at 250 (quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995) (“[T]he nonmoving
party must present evidence that creates a genuine issue of material
fact making it necessary to resolve the difference at trial.”).
“Once
the burden of production has so shifted, the party opposing summary
judgment cannot rest on the pleadings or merely reassert the previous
allegations.
It is not sufficient to ‘simply show that there is some
metaphysical doubt as to the material facts.’”
Glover v. Speedway
Super Am. LLC, 284 F.Supp.2d 858, 862 (S.D. Ohio 2003) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).
Instead, the nonmoving party must support the assertion that
a fact is genuinely disputed.
Fed. R. Civ. P. 56(c)(1).
In ruling on a motion for summary judgment “[a] district court is
not ... obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party’s claim.”
Glover, 284 F.Supp. 2d at 862 (citing InteRoyal Corp. v. Sponseller,
889 F.2d 108, 111 (6th Cir. 1989)).
33
Instead, a “court is entitled to
rely, in determining whether a genuine issue of material fact exists
on a particular issue, only upon those portions of the verified
pleadings, depositions, answers to interrogatories and admissions on
file, together with any affidavits submitted, specifically called to
its attention by the parties.”
Id.
See also Fed. R. Civ. P.
56(c)(3).
B.
Discussion
Plaintiff alleges that defendant used excessive force against him
on January 3, 2008.
An inmate’s claim of excessive force is properly
raised under the Eighth Amendment’s cruel and unusual punishment
clause.
Combs v. Wilkinson, 315 F.3d 548, 556 (6th Cir. 2002)
(quoting Pelfrey v. Chambers, 43 F.3d 1034, 1036-37 (6th Cir. 1995)).
The Eighth Amendment, which applies to the states through the Due
Process Clause of the Fourteenth Amendment, Robinson v. California,
370 U.S. 660, 666 (1962), prohibits the infliction of “cruel and
unusual punishments” on those convicted of crimes.
VIII.
U.S. Const. amend.
In order to be found liable for a violation of the Eighth
Amendment, a prison official must have acted with “a sufficiently
culpable state of mind and [] the alleged wrongdoing [must be]
objectively harmful enough to establish a constitutional violation.”
Hudson v. McMillian, 503 U.S. 1, 7 (1992) (internal quotation marks
omitted).
A claim of excessive force by a prison official under the Eighth
Amendment contains both an objective and subjective component, Moore
v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993).
As to the subjective
component, a court must determine “‘whether force was applied in a
good-faith effort to maintain or restore discipline or maliciously and
34
sadistically to cause harm.’”
Combs v. Wilkinson, 315 F.3d 548, 556
(6th Cir. 2002) (quoting Hudson, 503 U.S. at 7).
See also
Hasenmeier-McCarthy v. Rose, 986 F. Supp. 464, 470-71 (S.D. Ohio 1998)
(“[A]n Eighth Amendment claimant can satisfy this heightened
subjective requirement by proving that prison officials ‘used force
with a knowing willingness that [harm will] occur.’” (quoting Farmer
v. Brennan, 511 U.S. 825, 835 (1994)).
In making this determination,
courts may consider “the need for the application of force, the
relationship between the need and the amount of force that was used,
and the extent of injury inflicted.”
Williams v. Curtin, 631 F.3d
380, 383 (6th Cir. 2011) (quoting Whitley v. Albers, 475 U.S. 312, 321
(1986)) (internal quotation marks omitted).
“Courts may also consider
the circumstances as reasonably perceived by the responsible officials
on the basis of the facts known to them, and any efforts made to
temper the severity of a forceful response.”
Id. (quoting Whitley,
475 U.S. at 321) (internal quotation marks omitted).
The objective component requires that the pain be “sufficiently
serious.”
Wilson v. Seiter, 501 U.S. 294, 298 (1991).
This component
is “contextual and responsive to ‘contemporary standards of decency.’”
Hudson, 503 U.S. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103
(1976)).
Not “every malevolent touch by a prison guard gives rise to
a federal cause of action.”
Id.
“[A]lthough the injury sustained by
the inmate must be more than de minimis, it need not be particularly
serious in order to sustain an Eighth Amendment claim.”
Thaddeus-X v.
Blatter, 175 F.3d 378, 402 (6th Cir. 1999).
In the case presently before the Court, the parties dispute the
amount of force defendant used against plaintiff on January 3, 2008.
35
Defendant contends that plaintiff became argumentative about being on
his bed and that defendant conducted a pat down and handcuffed
plaintiff.
Hill Depo., p. 26.
Although plaintiff physically complied
with defendant’s commands, defendant testified that plaintiff
continued to be verbally argumentative in front of other inmates.
at 26-27, 32-35.
Id.
Defendant specifically contends that plaintiff said
in a loud voice, “I don’t care about you, you can do what you have to
do.”
Id. at 34 and Exhibit 3, attached thereto.
Because of this
misconduct, defendant escorted plaintiff, still handcuffed, out of the
unit.
Id. at 26-27, 32-35.
Defendant specifically denies that, while
walking with plaintiff, he pushed plaintiff into a wall. Id. at 36-37;
59-60.
Plaintiff testified that defendant forcefully kicked plaintiff’s
feet apart when conducting the pat down, twice pushed plaintiff facefirst into a wall and handcuffed him so tightly that the handcuffs cut
off plaintiff’s circulation.
Affidavit, ¶ 2.
Plaintiff Depo., pp. 22-25; Plaintiff
According to plaintiff, defendant also purposely
pushed plaintiff face-first into a corner of a wall when escorting
plaintiff out of the unit.
Id.
Plaintiff also offers the affidavits
of other witnesses who support plaintiff’s version of the incident.
See Exhibits A, B and C, attached to the Motion for Summary Judgment.
Moreover, Mohammed Yakubu, PCI’s institutional inspector who
investigated the incident and documented his findings, reported that
use of force was involved on January 3, 2008 in light of the fact that
plaintiff was handcuffed.
Deposition of Mohammed Yakubu, pp. 52-54,
Doc. No. 112 (“Yakubu Depo.”) and Exhibit 2, attached thereto.
As noted supra, defendant concedes that plaintiff physically
36
complied with defendant’s commands and it was only plaintiff’s verbal
response that precipitated the application of handcuffs.
Yet, when
asked on deposition at what point a verbal disturbance necessitates
the use of force, defendant responded, “[A] riot situation or enticing
other inmates to participate in some type of disturbance.”
Depo., pp. 55-57.
Hill
Defendant also agreed that the incident did not
involve the inciting of a riot.
Id.
Considering the totality of the
evidence in this regard, the Court concludes that plaintiff’s version
of the facts, if credited, could support a finding that excessive
force was applied during the incident.
The record therefore reflects
a genuine issue as to this material fact.
Plaintiff has alleged that he suffered bruising and swelling of
the head, face, mouth, wrist and hands, and a broken tooth, as a
consequence of the force applied against him during the incident.
Complaint, p. 4; Notification of Grievance, attached to Complaint;
Plaintiff Depo., pp. 29, 34, 50-51, 54, 68-69.
Defendant contends
that he is entitled to summary judgment because there is no credible
evidence that plaintiff suffered any injury arising out of the
incident; any force applied to plaintiff was therefor merely de
minimis and of no constitutional import.
See Hudson, 503 U.S. at 8
(finding that not “every malevolent touch by a prison guard gives rise
to a federal cause of action”).
More specifically, defendant contends
that plaintiff’s failure to seek immediate medical attention following
the incident is fatal to his claims.
Defendant further argues that
plaintiff has failed to offer expert testimony necessary to prove
proximate causation of plaintiff’s alleged injuries.
address each argument in turn.
37
The Court shall
1.
Failure to seek immediate medical attention
Defendant contends that plaintiff never reported or complained
about any injury suffered as a result of the incident.
Reply, p. 4
(citing Declaration of Karen Stanforth (“Stanforth Declaration”) and
Declaration of Kooljo Ntim (“Ntim Declaration”), attached as Exhibit C
and D, respectively, to the Motion for Summary Judgment).
Nurse Ntim
performed a medical examination of plaintiff on January 24, 2008.
Ntim Declaration, ¶ 3; Exhibit A attached thereto (“Medical Exam
Report”).
Nurse Ntim has no independent recollection of this
examination but instead relied on the his report regarding the
examination.
p. 38.
Deposition of Kooljoe Ntim, Doc. No. 138 (“Ntim Depo.”),
Nurse Ntim testified that, as a general practice, he performs
a head-to-toe evaluation and records any injuries that he finds.
at 22-23.
Id.
When evaluating plaintiff, Nurse Ntim noted that plaintiff
“denies any pain / discomfort at present.”
Medical Exam Report.
Defendant argues that this evidence establishes that plaintiff made no
complaint to Nurse Ntim of any injury and, furthermore, that no
bruising was present.
Defendant further points to the testimony of
Karen Stanforth, the Healthcare Administrator who reviewed plaintiff’s
medical records.
Stanforth Declaration, ¶¶ 1, 3.
According to Ms.
Stanforth, those medical records do not reflect any complaints by
plaintiff of injuries.
Deposition of Karen Stanforth, Doc. No. 137,
pp. 36-37 (“Stanforth Depo.”).
Plaintiff, who insists that he immediately complained to
defendant that defendant was hurting him, Plaintiff Depo., pp. 23, 27,
reads this evidence differently.
Plaintiff notes, first, that Ms.
38
Stanforth reviewed only medical records, not dental records.
Moreover, plaintiff complains that Ms. Stanforth’s review was made for
the purpose of this litigation and not as part of her normal course of
duties.
Id. at pp. 19, 21, 43.
Ms. Stanforth, who admitted that she
is not a physician qualified to offer diagnoses or causation opinions,
never spoke to plaintiff or to Nurse Ntim about the incident.
33, 44.
Id. at
As to the Medical Exam Report, plaintiff argues that the
document simply indicates that as of January 24, 2008 – i.e., three
weeks after the incident – plaintiff was not in pain or discomfort.
Plaintiff also argues that bruising or swelling may not have been
apparent three weeks after the incident and that any nerve injury
would not have been visible.
Therefore, plaintiff contends, the
Medical Exam Report does not establish that plaintiff did not complain
of injuries arising from the incident nor does it establish that he
did not in fact suffer injuries as a consequence of the incident.
In any event, plaintiff argues, the fact that he may not have
immediately requested medical attention is not dispositive.
Memo. in
Opp., pp. 15-16 (citing Zamboroski v. Karr, No. 04-73194, 2007 U.S.
Dist. LEXIS 11140, at *16 (E.D. Mich. Feb. 16, 2007) (finding that
“[t]he fact that [the inmate] never requested to see a doctor does not
render his injuries de minimis as a matter of law”); Armer v.
Marshall, No. 5:09-CV-00086-R, 2011 U.S. Dist. LEXIS 70242 (W.D. Ky.
June 28, 2011) (denying summary judgment where, inter alia, plaintiff
did not seek medical attention and failed to complain of injury in
later visits to the hospital)).
Moreover, ODRC policy provides that
“[i]mmediately following a use of force, medical attention shall be
provided even when the inmate does not appear to be injured.”
39
Policy
Number 63-UOF-01, at VI(G)(1), attached as Exhibit D to Memo. in Opp.
Here, plaintiff was not examined until January 24, 2008, after he
filed his Notification of Grievance on January 10, 2008.
Plaintiff’s arguments are well-taken.
Construing all of the
evidence in the light most favorable to plaintiff, the Court concludes
that there exists a genuine issue of fact as to whether plaintiff
denied injury or complained of injury suffered as a consequence of the
incident.
2.
Bruising and swelling
Plaintiff also alleges that he suffered bruising and swelling as
a result of the incident of January 3, 2008.
Defendant takes the
position that plaintiff must provide expert medical testimony to
support an Eighth Amendment claim in order to survive summary
judgment.
See Defendant’s Supplemental Reply, pp. 3-4 (citing, inter
alia, Yanovich v. Sulzer Orthopedics, Inc., No. 1:05 CV 2691, U.S.
Dist. LEXIS 90332, at *8 (N.D. Ohio Dec. 14, 2006) (stating, in the
context of a products liability claim, that “[u]nder Ohio law, a
plaintiff must present expert medical testimony to establish causation
when he asserts a specific physical injury, the cause for which is not
within common knowledge”).
Although plaintiff “agrees that expert
medical testimony may be required with respect to some aspects of his
Eighth Amendment claim” at trial, he argues that expert medical
testimony is not necessary to overcome the Motion for Summary
Judgment.
Plaintiff’s Sur-Reply.
More specifically, as to
allegations of bruising and swelling, plaintiff contends that expert
testimony is not necessary because it is within common knowledge that
these injuries could result an application of excessive force.
40
Id. at
3. According to plaintiff, expert testimony is not required before a
jury could find that bruising and swelling could be the result of
being slammed face-first into a wall.
Id.
Defendant, however,
disputes that plaintiff actually suffered any bruising or swelling
because there are no medical records to support this injury.
For the reasons state supra, the Court concludes that there exist
genuine issues of material fact regarding plaintiff’s allegation that
he suffered bruising and swelling as a result of defendant’s
application of excessive force.
2.
Nerve injury
Plaintiff also alleges that he suffered nerve injury following
defendant’s use of excessive force.
Plaintiff agrees that Dr.
Clinchot diagnosed carpal tunnel syndrome and found injury to only the
Median nerve.
However, plaintiff challenges Dr. Clinchot’s conclusion
that such an injury and diagnosis is inconsistent with a use of
handcuffs.
For example, plaintiff notes that Dr. Clinchot conceded
that tight handcuffs could block venous egress from the hand, and that
venous engorgement could be a cause of carpal tunnel syndrome.
Clinchot Depo., pp. 49-50.
See
In addition, plaintiff’s own medical
expert, Kenneth Mankowski, D.O., supports plaintiff’s allegation that
he suffered nerve damage as a consequence of the use of handcuffs.
See Report dated May 18, 2011 (“Final Mankowski Report”), attached to
Affidavit of Kenneth Mankowski, D.O., attached as Exhibit A to
Plaintiff’s Sur-Reply.
According to Dr. Mankowski, plaintiff likely
(1) suffered an aggravation of a previously existing median nerve
injury following defendant’s use of handcuffs, or (2) cervical
41
Id. at 2.9
radiculopathy.
Defendant attacks the Final Mankowski Report by noting that Dr.
Mankowski’s initial report concluded that the use of handcuffs was not
the cause of plaintiff’s carpal tunnel syndrome.
See Report dated
November 17, 2010 (“Initial Mankowski Report”), attached as Exhibit A
to Defendant’s Response to Sur-Reply.
Differences that may exist
between the Initial Mankowski Report and the Final Mankowski Report –
and the significance of any such differences – may go to the weight of
Dr. Mankowski’s expert opinions and to the credibility of plaintiff’s
allegation that he suffered nerve damage as a consequence of the
incident. As the record now stands, however, the Court is presented
with two contrary conclusions as to the etiology of plaintiff’s median
nerve injury. Under these circumstances, the Court concludes that
there exists a genuine issue of material fact as to whether plaintiff
suffered an injury to the median nerve as a result of the incident of
January 3, 2008.
3.
Dental injury
Finally, plaintiff alleges that he sustained dental injuries,
i.e., broken teeth, because of defendant’s use of excessive force.
Relying on the testimony of Dr. Taylor, see supra, defendant contends
that plaintiff lost two teeth – not as a result of any application of
force by defendant – but as a consequence of periodontitis and chronic
tooth decay.
In response,
plaintiff relies on his own expert’s
opinion who states that “[t]here is no documentation that Mr. Wilson’s
periodontal condition was severe enough to weaken teeth to the point
9
Dr. Mankowski also opined that a third, less likely but possible,
etiology is brachial plexopathy. Id. at 2.
42
of atraumatic avulsion.”
Report of Dr. Rorapaugh (“Rorapaugh Report”,
¶ 2, attached to Affidavit of R. Donald Rorapaugh Jr., D.D.S.,
attached as Exhibit B to Plaintiff’s Sur-Reply (“Rorapaugh
Affidavit”). Dr. Rorapaugh also opines that “[t]ooth fracture or
damage reported here is consistent with blows to the face.”
3.
Id. at ¶
Although he did not have the benefit of plaintiff’s x-rays, which
were not timely produced by defendant, Dr. Rorapaugh criticized ODRC’s
record-keeping, “[p]articularly when attempting to document
periodontal condition, caries, or anatomic condition of teeth and
bone.”
Id. at ¶ 4.
Defendant challenges Dr. Rorapaugh’s opinion as
mere speculation based on the credibility of plaintiff’s version of
the facts.
According to defendant, there is no medical corroboration
of injury to plaintiff’s teeth.
This Court concludes that Dr. Rorapaugh has sufficiently raised a
material question as to the condition of plaintiff’s teeth at the time
of the extractions and as to the conditions that may have necessitated
those extractions.
State differently, the Court cannot conclude that
the Rorapaugh Report is so deficient as to fail to create a genuine
issue as to these material facts.
In short, and after viewing the evidence in the light most
favorable to plaintiff, the Court concludes that there exist genuine
issues of fact relating to the material issue of whether plaintiff
suffered more than de minimis injury as a result of the incident of
January 3, 2008.
The Court therefore concludes that the grant of
summary judgment is unwarranted.
WHEREUPON, Defendant Leon Hill’s Second Motion for Summary
43
Judgment, Doc. No. 110, is DENIED; Motion of Plaintiff Lawrence E.
Wilson to Strike the Affidavit of Dr. Clayborn Taylor and to Exclude
His Medical Opinions, Doc. No. 126, is DENIED; and Motion of Plaintiff
Lawrence E. Wilson to Strike the Affidavit of Dr. Daniel Clinchot and
to Exclude His Medical Opinions, Doc. No. 127, is DENIED.
March 29, 2012
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
44
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