Henricks v. Pickaway Correctional Institution et al

Filing 297

ORDER granting in part, denying in part and holding in abeyance in part 273 Motion in Limine. DENYING Defendants motion in limine to: (1) prohibit Plaintiff from failing to prove all the elements of his 42 U.S.C. § 1983 action is DENIED (Doc. 276-4); DENYING(2) prohibit Plaintiff from offering non-expert medical opinions(Doc. 276-3); and DENYING (3) prohibit Plaintiff from equating his deliberate indifference claim to that of medical malpractice (Doc. 276-5.) Signed by Judge Algenon L. Marbley on 9/2/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN HENRICKS,

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Plaintiff,
v.
PICKAWAY CORRECTIONAL
INSTITUTION, et al.,
Defendants.

Case No. 2:08-CV-580
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson

OPINION & ORDER
This matter is before the Court on several motions in limine. Plaintiff has filed motions
in limine to: (1) prevent Defendants from offering testimony from various physicians; (2) prevent
Defendants from offering testimony related to administrative exhaustion; (3) prevent Defendant
from presenting evidence related to Plaintiff’s post-release medical treatment; and (4) prevent
Defendants from offering evidence or argument regarding the crime for which Plaintiff was
incarcerated. (Doc. 273.) Defendants have filed motions in limine to: (1) prohibit Plaintiff from
failing to prove all the elements of his 42 U.S.C. § 1983 action (Doc. 276-4); (2) prohibit
Plaintiff from offering non-expert medical opinions (Doc. 276-3); and (3) prohibit Plaintiff from
equating his deliberate indifference claim to that of medical malpractice. (Doc. 276-5.)
For the reasons that follow, Plaintiff’s motions in limine are GRANTED in part,
DENIED in part, and HELD IN ABEYANCE in part. Defendants’ motions in limine are
DENIED.
I.

BACKGROUND

The facts of this case were summarized in the Sixth Circuit order denying Defendants’
interlocutory appeal:
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Henricks began experiencing the symptoms of acute appendicitis on August 19, 2006.
The following day, upon the recommendation of Dr. Gonzalez, the medical director at
Henricks’s prison, Henricks was sent to the Ohio State University Medical Center. At the
emergency room, Officer Maynard, who had accompanied Henricks, refused to remove
Henricks’s handcuffs and other restraints in spite of a physician’s request to do so. This
caused a delay of approximately forty-five minutes while Officer Maynard and the
physician argued. Eventually, Officer Maynard uncuffed Henricks and Henricks was
admitted and underwent emergency surgery. The surgery—which Henricks alleges was
made more extensive by Officer Maynard’s delay in removing the restraints—caused
nerve damage to Henricks’s right leg.
Henricks’s dispute with Dr. Gonzalez arises from Dr. Gonzalez’s consistent refusal to
prescribe a medication called Neurontin for the pain caused by that nerve damage, in
spite of the view of several other doctors, including specialists, that Neurontin was
necessary to treat Henricks’s pain. Henricks first received a prescription for Neurontin on
November 1, 2006. He requested that his dosage be increased on November 3, and on
November 8 he met with Dr. Gonzalez, who discontinued the prescription on the basis
that it would not be effective in treating Henricks’s pain. Starting in February 2007,
neurologists recommended Neurontin for Henricks’s pain on multiple occasions, but Dr.
Gonzalez never authorized it, even though at least one doctor explicitly noted that
Neurontin was “wholly appropriate” and that Motrin, the medication that Henricks had
been on, would not be effective. Henricks thus suffered unreduced pain resulting from his
nerve damage during much of 2007.
(Doc. 233 at 2-3.)
On August 24, 2016, the Court granted Plaintiff’s motion in limine to deem admitted all
factual allegations in his complaint under Federal Rule of Civil Procedure 8(b)(6) because
Defendants never filed an answer. (Doc. 290.) At the same time, the Court denied Defendants’
motion in limine “to prohibit the plaintiff from refusing to adhere to 42 U.S.C. § 1997e(g).” (Id.)
Because the facts have been deemed admitted, the Court precluded Defendants from offering at
trial any evidence contradicting the factual allegations of the complaint other than evidence
relating to damages. The Court will now consider the parties’ remaining motions in limine.
II.

STANDARD OF REVIEW

Motions in limine allow the Court to rule on the admissibility of evidence in advance of
trial to expedite proceedings and give the parties advance notice of the evidence they may not

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rely upon at trial. Bennett v. Bd. of Educ. of Washington Cnty. Joint Vocational Sch. Dist., C208-CV-0663, 2011 WL 4753414, at * 1 (S.D. Ohio Oct. 7, 2011) (citing Jonasson v. Lutheran
Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)). To prevail on a motion in limine, the
movant must show that the evidence is clearly inadmissible. Id. If the movant fails to meet this
high standard, a Court should defer evidentiary rulings so that questions of foundation,
relevancy, and potential prejudice may be resolved in the context of trial. See Ind. Ins. Co. v.
Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). Whether or not to grant a motion in
limine is within the discretion of the trial court. Branham v. Thomas M. Cooley Law Sch., 689
F.3d 558, 562 (6th Cir. 2012). The Court may reconsider the admissibility of the evidence,
however, and even change its ruling on a motion in limine, “as the proceedings give context to
the pretrial objections.” Bennett, 2011 WL 4753414, at * 1 (citing Black v. Columbus Pub. Sch.,
No. 2:96-CV-326, 2007 WL 2713873, at *2 (S.D. Ohio Sept. 17, 2007)).
III.

ANALYSIS

A. Plaintiff’s Motions in Limine
1. Physician Testimony
Plaintiff asks the Court to exclude the testimony of four physicians, Drs. Andrew Eddy,
Gregory Figg, Sorabh Khandelwal, and Nneka Ezeneke, for failure to comply with Federal Rule
of Civil Procedure 26. (Doc. 273 at 1-3.)
Pretrial disclosures of witnesses must be made at least 30 days before trial, “[u]nless the
Court orders otherwise.” Fed. R. Civ. P. 26(a)(3)(B). Expert witnesses, however, must be
disclosed “at least 90 days before the date set for trial.” Fed. R. Civ. P. 26(a)(2)(D). Further, the
disclosure of expert witnesses “must be accompanied by a written report—prepared and signed
by the witness—if the witness is one retained or specially employed to provide expert testimony

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in the case or one whose duties as the party’s employee regularly involve giving expert
testimony.” Rule 26 further sets forth the required content of the expert report. See Fed. R. Civ.
P. 26(a)(2)(B).
Defendants contend that even though the four doctors were not disclosed until the July
15, 2015 motion for leave to pursue a qualified immunity defense, to which Defendants attached
affidavits from the doctors, the disclosures were timely because the Court had not ordered earlier
disclosures and they were submitted within 30 days of trial. (Doc. 283 at 3.) It appears that
Defendants are correct that the Court did not order a certain date for pretrial disclosures. But
given that the doctors clearly seek to testify as expert witnesses (their affidavits include
assertions of their opinions “to a reasonable degree of medical certainty”), their disclosures, even
if timely,1 were not accompanied by expert reports of any kind. Defendants concede that Dr.
Eddy is an expert witness and, therefore, the Court will exclude his testimony for failure to
comply with Rule 26(a)(2).2
Defendants rebut this point by asserting that other than Dr. Eddy, their witnesses are
clearly offered not as experts but as fact witnesses or rebuttal witnesses. (Doc. 283 at 3.)
Because Dr. Ezeneke has never examined or treated Plaintiff and derived all of her knowledge of
the events in question from the medical records, she is not a fact witness. (See Declaration of
Nneka Ezeneke, M.D., Doc. 238-5 at ¶ 5.) Accordingly, her testimony will be excluded for
failure to comply with Rule 26(a)(2).
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As stated above, expert witnesses must be disclosed 90 days before trial, and Defendants did
disclose these witnesses more than 90 days before the trial date, so they will not be excluded on
this basis.
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Defendants also argue that Dr. Eddy will testify as a fact witness as to the “policies and
procedures Defendant Dr. Gonzalez was required to work under in following recommendations
of outside consultants, as well as the ramifications she faced in prescribing medications to
inmates.” (Doc. 283 at 3.) Finding this irrelevant to damages, the only remaining issue for trial,
the Court excludes this testimony as well.
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Dr. Khandelwal seeks to testify on the delay in Plaintiff’s treatment in the emergency
room and Officer Maynard’s culpability in this delay, as well as his “opinion to a reasonable
degree of medical certainty” that the delay in Henricks’s surgical procedure “would have no
adverse effect on his medical condition, or his recovery.” (Declaration of Sorabh Khandelwal,
M.D., Doc. 238-4 at ¶¶ 8-11.) The latter statement constitutes an expert opinion, which the
Court will not allow due to the failure to submit an expert report as required by Rule 26(a)(2).
The testimony regarding the delay and Officer Maynard’s culpability must also be precluded
because the Court has deemed admitted the factual allegations in the complaint and it is
irrelevant to Plaintiff’s damages.
Dr. Figg examined Plaintiff in 2007 and recommended Neurontin for his pain after the
surgery. (Declaration of Gregory M. Figg, M.D., Doc. 238-2 at ¶¶ 4, 7.) All of Dr. Figg’s
statements in his affidavit, submitted with Defendants’ motion for leave to pursue a qualified
immunity defense, indicate that his testimony relates to Dr. Gonzales’s decision to prescribe
Motrin rather than Neurontin, the relative effectiveness of different pain medications, and the
primary physician’s role in determining which medications are appropriate. (Id. at ¶¶ 7-11.)
Therefore, Figg’s testimony will also be precluded because it bears no relevance to the issue of
Plaintiff’s damages.
Plaintiff’s motion to exclude the testimony of Drs. Eddy, Figg, Khandelwal, and Ezeneke
is GRANTED.
2. Evidence Related to Administrative Exhaustion
Plaintiff asks the Court to exclude the testimony of Eugene Hunyadi, Assistant Chief
Inspector, whose declaration in support of Defendants’ motion for summary judgment relates
only to whether Plaintiff exhausted his administrative remedies prior to bringing this lawsuit.

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(Doc. 273 at 4.) Because the Court has previously stricken the failure-to-exhaust affirmative
defense, which was not pleaded, the motion is well taken. Defendants offer no argument to the
contrary other than to note that exhaustion is a question of fact for the jury. This is true
generally, but not when the Court has found the defense waived. Defendants will not be
permitted to introduce evidence at trial related to administrative exhaustion. Plaintiff’s motion to
exclude Hunyadi’s testimony is GRANTED.
3. Evidence Related to Plaintiff’s Post-Release Medical Treatment
Plaintiff next asks the Court to exclude evidence related to the medical treatment that he
received following his release from prison on the ground that it is irrelevant. (Doc. 273 at 4.)
According to Plaintiff, such evidence is irrelevant because his damages caused by Officer
Maynard ended when the delay in treatment ended and his damages caused by Dr. Gonzales
ended when he was no longer in Dr. Gonzales’s care. (Id.) Defendants counter that some of the
evidence could be relevant, although they do not specifically argue how such evidence would
shed light on Plaintiff’s damages, the only remaining issue for trial. Defendants also argue that
because they have not yet seen the complete records—which the Magistrate Judge ordered be
made available to defense counsel during a January 20, 2016 status conference—and are still
awaiting records from the Fulton County Health Center, the Court should at the very least
decline to rule on the motion until the contents of the records are known.
Although the Court is skeptical that the records will be relevant to an assessment of
damages, given Plaintiff’s position that his damages concluded after the conclusion of treatment,
the motion should likely be granted. The Court HOLDS IN ABEYANCE the motion in limine
until the final pretrial conference until Defendants, upon receiving the records, articulate how the
post-release medical treatment relates to Plaintiff’s damages.

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4. Evidence Related to the Crime for Which Plaintiff was Incarcerated
Finally, Plaintiff asks the Court to preclude evidence of the crime for which he was
incarcerated during the events at issue because it is irrelevant and prejudicial. Defendants
correctly point out that they may attack Plaintiff’s character for truthfulness by evidence of a
criminal conviction under Rule 609 if the crime “was punishable by death or by imprisonment
for more than one year” or if “establishing the elements of the crime required proving—or the
witness’s admitting—a dishonest act or false statement.” Fed. R. Evid. 609(a)(1).3 The Court is
unaware, however, of the crime for which Plaintiff was incarcerated because neither party has so
informed the Court in the briefing and the Court has not been able to locate this information
elsewhere in this case’s extensive record. The Court is thus unable to determine whether
Plaintiff’s criminal conviction was punishable by death or by imprisonment for more than one
year or, alternatively, whether it involved a dishonest act or false statement. At this time,
therefore, the Court DENIES the motion in limine.
B. Defendant’s Motions in Limine
1. Motion to Prohibit Plaintiff from Offering Non-Expert Medical Opinions
Defendants ask the Court to preclude Plaintiff or any other lay witnesses from offering
medical opinions that they are not qualified to offer. (Doc. 276-3.) Federal Rule of Evidence
701(c) limits “testimony in the form of an opinion” to one that is “not based on scientific,
technical, or other specialized knowledge.” As such, Plaintiff, who is not a medical doctor, is
not competent to offer medical opinions. Because the factual allegations in the complaint have
been deemed admitted, however, the Court finds this issue moot as to much of the evidence

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Presuming Defendants can satisfy Rule 609(a), Plaintiff’s criminal conviction cannot be
excluded under Rule 609(b) because fewer than ten years have passed since his release from
confinement.
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Defendant seeks to prohibit. To the extent Defendant seeks to preclude this testimony as it goes
to an assessment of damages, the Court also declines to grant the motion. To be sure, Plaintiff is
competent to testify about some of his symptoms and treatment and, as a lay witness, is not
competent to testify about other matters relating to his diagnosis and treatment. But the Court
finds that the scope of this testimony will be more appropriately resolved on a case-by-case basis
at trial upon objection by Defendants. Defendants’ motion is DENIED.
2. Motion to Prohibit Plaintiff from Failing to Prove all the Elements of his 42 U.S.C. § 
1983 Action
This motion in limine, though awkwardly phrased, essentially asks the Court to rule that
Dr. Gonzales was not acting “under color of law” when she denied Neurontin to Plaintiff while
acting as a prison doctor because she was not a state employee but rather an employee of an
entity that contracted with the Ohio Department of Rehabilitation and Correction (“ODRC”).
(Doc. 276-4.) It does not ask the Court to rule on the admissibility of any evidence and therefore
is not, in fact, a motion in limine. Regardless, Defendants’ legal argument has no merit. Both
the Supreme Court and the Sixth Circuit have held that a “physician who contracts to provide
medical services to prison inmates . . . acts under color of state law for purposes of § 1983.”
McCullum v. Tepe, 693 F.3d 696, 700 (6th Cir. 2012) (citing West v. Atkins, 487 U.S. 42, 54
(1988)). And contrary to Defendants’ argument, it is immaterial whether the doctor herself
contracted with ODRC or whether her employer contracted with the prison. See West, 487 U.S.
at 55-56 (“It is the physician’s function within the state system, not the precise terms of his
employment, that determines whether his actions can fairly be attributed to the State.”).
Moreover, the Court has already rejected Defendants’ argument on this issue. Therefore,
Defendants’ motion is DENIED.

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3. Motion to Prohibit Plaintiff from Equating his Deliberate Indifference Claim to that of
Medical Malpractice
Defendants next ask the Court to prohibit Plaintiff “from disturbing th[e] holding” that
there is a “distinction between deliberate indifference and a negligent medical malpractice” cause
of action. Plaintiff’s counsel respond that they do not understand exactly what Defendants’
motion requests but that they do not plan to tell the jury that “malpractice and Section 1983
Eighth Amendment claims are the same thing.” (Doc. 280 at 1.)
It is unnecessary and inefficient for a party to file a motion in limine asking the Court not
to disturb a previous holding. The Court is aware of the elements of an Eighth Amendment
deliberate-indifference claim and sees no compelling reason to grant a motion in limine that
concerns not an evidentiary issue but a statement of law on which the parties do not even
disagree. Consequently, Defendants’ motion is DENIED.
IV.

CONCLUSION

For the reasons stated above, Plaintiff’s motion in limine to: 1) prevent Defendants from
offering improper testimony from various physicians is GRANTED; (2) prevent Defendants
from offering testimony related to administrative exhaustion is GRANTED; (3) prevent
Defendant from offering evidence related to Plaintiff’s post-release medical treatment is HELD
IN ABEYANCE; and (4) prevent Defendants from offering evidence or argument regarding the
crime for which Plaintiff was incarcerated is DENIED. (Doc. 273.)
Defendants’ motion in limine to: (1) prohibit Plaintiff from failing to prove all the
elements of his 42 U.S.C. § 1983 action is DENIED (Doc. 276-4); (2) prohibit Plaintiff from
offering non-expert medical opinions is DENIED (Doc. 276-3); and (3) prohibit Plaintiff from
equating his deliberate indifference claim to that of medical malpractice is DENIED. (Doc. 2765.)
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IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 2, 2016

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