Ponzini et al v. Monroe County et al
Filing
399
MEMORANDUM OPINION (Order to follow as separate docket entry) re 354 MOTION for Judgment as a Matter of Law filed by Thomas, 348 MOTION for Attorney Fees filed by Miryem Barbaros, Peter Ponzini, 366 MOTION for Judgment as a Matter of Law filed by Grace Ramos, C. Rove, W. Johnson, Paul S. James, P. Bauer, PrimeCare Medical, Inc. Signed by Honorable Robert D. Mariani on 8/30/17. (jam)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PETER PONZINI, ESQUIRE and
MIRYEM BARBAROS, as
Co-Administrators of the Estate of
Mumun Barbaros, Deceased,
v.
Plaintiffs,
PRIMECARE MEDICAL, INC, et al.,
Defendants.
:
:
:
:
:
:
:
:
:
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3:11-CV-00413
(JUDGE MARIANI)
MEMORANDUM OPINION
TABLE OF CONTENTS
I.
INTRODUCTION AND PROCEDURAL HISTORY ........................................................................................ 2
II.
STATEMENT OF FACTS ................................................................................................................................ 5
A.
PrimeCare Medical, Inc. ............................................................................................................................... 5
B.
March 18, 2009 – March 22, 2009 ................................................................................................................ 13
1.
2.
Patricia Bauer ................................................................................................................................ 16
3.
Christina Rowe ............................................................................................................................. 19
4.
Wendy Johnson ............................................................................................................................. 22
5.
Grace Ramos ................................................................................................................................. 25
6.
Dr. Alex Thomas ........................................................................................................................... 28
7.
William Buffton .............................................................................................................................. 31
8.
C.
Paul James..................................................................................................................................... 13
Correctional Officers Cleary and Ryan ........................................................................................ 34
Expert Witnesses ........................................................................................................................................ 36
1.
2.
Dr. Peter Breggin ........................................................................................................................... 40
3.
Dr. Lorne Sheren .......................................................................................................................... 43
4.
David Hopkins................................................................................................................................ 44
5.
Terry Fillman .................................................................................................................................. 45
6.
Dr. Lawrence Mendel .................................................................................................................... 49
7.
Dr. Lawrence Guzzardi .................................................................................................................. 51
8.
Dr. Cheryl Wills .............................................................................................................................. 52
9.
III.
Kathryn Wild .................................................................................................................................. 36
Dr. Susan Rushing ........................................................................................................................ 56
STANDARD OF REVIEW.............................................................................................................................. 59
A.
Motion for Judgment as a Matter of Law ................................................................................................... 59
B.
Motion for a New Trial; Remittitur .............................................................................................................. 62
IV.
A.
MOTION FOR JUDGMENT AS A MATTER OF LAW ................................................................................. 64
42 U.S.C. § 1983 – Adequate Medical Care ............................................................................................... 64
1.
The Individual PrimeCare Defendants ......................................................................................... 65
a.
Paul James ...................................................................................................................... 75
b.
Patricia Bauer .................................................................................................................. 80
i
c.
Christina Rowe ................................................................................................................ 84
d.
Grace Ramos ................................................................................................................... 90
e.
The Individual PrimeCare Defendants Did Not Violate Mr. Barbaros’ Constitutional
Right To Adequate Medical Care ................................................................................... 94
2.
Dr. Alex Thomas ............................................................................................................................ 99
3.
PrimeCare Medical, Inc. ............................................................................................................. 108
a.
PrimeCare’s Policy, Practice, or Custom .................................................................... 111
i.
ii.
b.
4.
B.
Failure to Adopt Needed Policy .................................................................... 113
Failure to Train/Supervise .............................................................................. 115
Section 1983 Causation ................................................................................................ 122
Conditional Ruling on Motion for New Trial .............................................................................. 124
Negligence ................................................................................................................................................. 126
1.
2.
C.
V.
The PrimeCare Defendants......................................................................................................... 127
Dr. Alex Thomas .......................................................................................................................... 138
Punitive Damages ..................................................................................................................................... 142
MOTION FOR NEW TRIAL ........................................................................................................................ 154
A.
The PrimeCare Defendants ...................................................................................................................... 154
1.
Jury Instructions ......................................................................................................................... 158
a.
Negligence Per Se Jury Instruction and Argument.................................................... 158
b.
Direct Causation and Increased Risk of Harm ........................................................... 167
c.
Unpreserved Claims of Error ....................................................................................... 172
i.
ii.
Double Recovery............................................................................................. 175
iii.
2.
Inconsistent Verdicts...................................................................................... 173
Vicarious Liability – Punitive Damages ........................................................ 177
Evidentiary Rulings ..................................................................................................................... 183
a.
The Criminal Charges Filed Against Barbaros ........................................................... 183
b.
Preclusion of Alleged Statement Made to Correctional Officer Ryan ...................... 190
c.
Permitting Evidence of the Misspelling of Mr. Barbaros’ First Name....................... 195
d.
Permitting Mumtaz Barbaros to Testify ...................................................................... 199
e.
Preclusion of Testimony Regarding Alleged Misconduct of Correctional Officer
Jesse Cleare ................................................................................................................. 205
f.
Unpreserved Claims of Error ....................................................................................... 206
ii
3.
Weight of The Evidence ............................................................................................................. 208
a.
The Individual PrimeCare Defendants......................................................................... 210
b.
William Buffton ............................................................................................................. 222
c.
PrimeCare Medical, Inc. ................................................................................................ 224
i.
ii.
Liability for Negligence of Independent Contractors .................................. 225
iii.
B.
Respondeat Superior ..................................................................................... 225
Corporate Negligence..................................................................................... 231
Dr. Alex Thomas ....................................................................................................................................... 237
1.
2.
Failure to Include Agency Question on Verdict Sheet ............................................................. 244
3.
VI.
Permitting Dr. Breggin to Testify ............................................................................................... 238
Weight of the Evidence ............................................................................................................... 246
MOTION FOR NEW TRIAL – DAMAGES/REMITTITUR ........................................................................... 249
A.
Wrongful Death Damages ........................................................................................................................ 251
B.
Survival Action Damages .......................................................................................................................... 256
C.
New Trial – Compensatory Damages ...................................................................................................... 259
VII.
MOTION FOR DELAY DAMAGES ............................................................................................................. 259
VIII.
CONCLUSION ............................................................................................................................................ 267
iii
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PETER PONZINI, ESQUIRE and
MIRYEM BARBAROS, as
Co-Administrators of the Estate of
Mumun Barbaros, Deceased,
v.
Plaintiffs,
PRIMECARE MEDICAL, INC, et al.,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
3:11-CV-00413
(JUDGE MARIANI)
MEMORANDUM OPINION
Presently before the Court are several post-trial motions filed by Defendants PrimeCare
Medical, Inc., Paul James, Patricia Bauer, Christina Rowe, Wendy Johnson, and Grace
Ramos (collectively, the “PrimeCare Defendants”) and Dr. Alex Thomas (“Dr. Thomas”).
(Docs. 354, 366). The Court notes at the outset that its decisions stated in this opinion were
arrived at with little assistance from the submissions of the parties. In particular, the
submissions of the PrimeCare Defendants and Dr. Thomas were consistently made without
citations to the record and in many instances without supporting arguments or references to
the applicable law. Nevertheless, and for the reasons set forth below, the PrimeCare
Defendants and Dr. Thomas’ motions will be granted in part and denied in part.
I.
INTRODUCTION AND PROCEDURAL HISTORY
This case arises from the circumstances surrounding the death of Mumun Barbaros, a
pretrial detainee at the Monroe County Correctional Facility (the “MCCF”). Plaintiffs Peter
Ponzini and Miryem Barbaros, as Co-Administrators of the Estate of Mumun Barbaros
(“Plaintiffs”), commenced this action on March 3, 2011 pursuant to 42 U.S.C. § 1983 and
Pennsylvania’s Wrongful Death and Survival statutes, 42 PA. CONS.STAT.ANN. §§ 8301,
8302. (Doc. 1). The amended complaint alleged that the PrimeCare Defendants, Dr.
Thomas, and Monroe County and various County officials violated Mr. Barbaros’ Fourteenth
Amendment right to adequate medical care. The amended complaint also alleged, inter
alia, that the PrimeCare Defendants and Dr. Thomas were negligent in their treatment of Mr.
Barbaros, and that their negligence caused Mr. Barbaros’ death. (Doc. 43).
Following the conclusion of discovery, the PrimeCare Defendants, Dr. Thomas, and
Monroe County moved for summary judgment. The Court granted in part and denied in part
the motions. (Docs. 174, 176, 178).
An eight day jury trial was held September 6, 2016 through September 15, 2016.1 At the
close of Plaintiffs’ case-in-chief, the PrimeCare Defendants orally moved for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50(a) on Plaintiffs’ § 1983 claim,
arguing that there was insufficient evidence as a matter of law to find any of the PrimeCare
One week before trial, Defendant Monroe County settled with Plaintiffs. (Doc. 305). After the parties
informed the Court of the settlement, it issued an Order directing the parties to present their positions as to
whether Monroe County should remain on the verdict sheet or caption. (Doc. 307). The parties stipulated
that Monroe County “should not be identified in the caption on the verdict slip and should not be named in
the body of the verdict slip.” (Doc. 308).
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2
Defendants liable. Defendant Paul James moved pursuant to Rule 50(a) and sought a
directed verdict on Plaintiffs’ negligence claim. Dr. Thomas also moved for judgment as a
matter of law on Plaintiffs’ § 1983 claim. The Court deferred ruling on the motions.
At the close of the evidence, the PrimeCare Defendants, Paul James, and Dr. Thomas
renewed their motions and the Court again deferred ruling on the motions. The day after
the closing of the evidence and the charge conference, but before the case was submitted
to the jury, PrimeCare Medical Inc. (“PrimeCare”) moved for judgment as a matter of law,
seeking dismissal of Plaintiffs’ claim for punitive damages. The Court deferred ruling on the
motion and the case was submitted to the jury.
The jury returned a verdict in favor of Plaintiffs, finding that Dr. Thomas and the
PrimeCare Defendants, with the exception of Wendy Johnson, violated Mr. Barbaros’
Fourteenth Amendment right to adequate medical care and that these deprivations caused
him harm. The jury awarded compensatory damages in the amount of $1,057,344 and
apportioned liability as follows: 7% to Paul James, 7% to Patricia Bauer, 7% to Christina
Rowe, 7% to Grace Ramos, 20% to Dr. Alex Thomas, and 52% to PrimeCare.
The jury also found that the PrimeCare Defendants and Dr. Thomas were negligent,
and that each of the Defendants’ negligence was a factual cause of Mr. Barbaros’ death.
The jury awarded compensatory damages in the amount of $2,000,000 under the Wrongful
Death Act and $800,000 under the Survival Act. The jury found that 4% of the causal
negligence was attributable to Paul James, Patricia Bauer, Christina Rowe, Grace Ramos,
3
and Wendy Johnson each (for a total of 20%), 5% attributable to William Buffton, 20% to Dr.
Alex Thomas, and 55% to PrimeCare.2 The jury also imposed $8,000,000 in punitive
damages against PrimeCare on Plaintiffs’ negligence claim only. On September 16, 2016
the Court entered judgment in the total amount of $11,857,344. (Doc. 338).
The PrimeCare Defendants subsequently filed various post-trial motions. (Doc. 366).
Specifically, the PrimeCare Defendants renewed their motions pursuant to Rule 50(b),
asserting that the evidence presented at trial was insufficient, as a matter of law, for a
reasonable jury to find any of them liable under § 1983. PrimeCare also claimed there was
insufficient evidence, as a matter of law, for the jury to award punitive damages.
Additionally, the PrimeCare Defendants alleged that the evidence presented at trial was
insufficient, as a matter of law, for a reasonable jury to find each of them liable for
negligence. In the alternative, the PrimeCare Defendants requested a new trial pursuant to
Federal Rule of Civil Procedure 59 and/or remittitur.3
On June 23, 2011, Plaintiffs filed an amended complaint naming William Buffton as a defendant.
(Doc. 43). The summons was issued to Mr. Buffton on July 24, 2013, (Doc. 78), and service was effected
on August 1, 2013, (Doc. 79) – 771 days after Plaintiffs filed their Amended Complaint. Mr. Buffton
subsequently filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5).
(Doc. 82). The Court found that Plaintiffs had failed to demonstrate good cause for their failure to
effectuate service nearly two years after the deadline set forth in Federal Rule of Civil Procedure 4(m).
Although dismissing Mr. Buffton as a defendant would constitute a dismissal with prejudice due to the
expiration of the statute of limitations, the Court could find “no cases in this Circuit or elsewhere in which
delay of anything approximating 771 days was excused solely on the basis of a resulting expiration of the
statute of limitations when the serving Plaintiff was represented by counsel.” (Doc. 102, at 6). The Court
thus granted Mr. Buffton’s motion and dismissed him from the case.
2
On November 17, 2016, PrimeCare, as principal, and Ironshore Indemnity, Inc., as surety, posted a
supersedeas bond in the amount of $13,303,050. (Doc. 367).
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4
Dr. Thomas also sought post-trial relief. (Doc. 354). He renewed his motion for
judgment as a matter of law on Plaintiffs’ § 1983 claim and also filed a Rule 50(b) motion
with respect to the negligence claim. Alternatively, Dr. Thomas requested a new trial and/or
remittitur.
II.
STATEMENT OF FACTS
In the early morning hours of Wednesday March 18, 2009, Mr. Barbaros was arrested
and transported to the MCCF, a correctional facility in Monroe County, Pennsylvania,
housing approximately 350 inmates. He was held in the segregated housing unit without a
cellmate and confined to his cell 22 hours per day. On the morning of March 22, 2009, Mr.
Barbaros was found dead in his cell. An autopsy was performed and a fifteen centimeter
long object consisting of tightly rolled remnants of a t-shirt that had been fabricated into the
shape of a tubular plug was found wedged in Mr. Barbaros’ posterior oropharynx. The
cause of death was listed as “choking on a foreign object” and “suicide”.
A. PrimeCare Medical, Inc.
PrimeCare is a for-profit corporation that contracts with state and local governments to
provide correctional healthcare services, including nursing, physician, and mental health
services. Sept. 8, 2016 Trial Tr. at 91:16-94:24. It was incorporated in Pennsylvania and
provides services throughout Pennsylvania, Maryland, New Hampshire, New York and West
Virginia. Id. at 99:5-22. It was founded by Dr. Carl Hoffman, PrimeCare’s Corporate
Medical Director and former President. Dr. Hoffman and his wife, who also serves as
5
Executive Vice President, are the sole shareholders. In 2009, approximately 1200
employees and/or independent contractors worked for or on behalf of PrimeCare throughout
74 prison facilities. Id. at 99:24-12. More than half of all county inmates in Pennsylvania
receive their healthcare through PrimeCare. Sept. 15, 2016 Trial Tr. at 85:11-16.
At the MCCF, the only individuals who can determine whether an inmate will receive
medical care are PrimeCare employees or agents. Id. at 111:23-112:1. It is PrimeCare’s
responsibility to supervise its employees and agents to ensure that they are complying with
its policies and procedures. Id. at 128:25-129:3.
Todd Haskins is the Vice President of Operations for PrimeCare. Id. at 101:1-9. In that
capacity, he has “clinical oversight and operational oversight” over Central and Eastern
Pennsylvania and Maryland. Id. Among his responsibilities, he writes and reviews
PrimeCare’s policies and procedures annually.4 Id. at 102:3-103:6. Mr. Haskins “did not
have absolute operational oversight” at the MCCF but “did oversee the facility.” Id. at 101:812; 103:7-10. He was not, however, involved in the day-to-day care provided to inmates at
the MCCF. Id. Rather, Dr. Deborah Wilson, PrimeCare’s Medical Director at the MCCF,
Plaintiffs presented little, if any, evidence of PrimeCare’s corporate structure. In 2009, Mr. Haskins
was “two levels from the top of PrimeCare” – below President and Corporate Medical Director Dr. Carl
Hoffman and Mrs. Hoffman, PrimeCare’s Executive Vice President. On the same level as Mr. Haskins
were several unidentified Vice Presidents. Defendants elicited testimony that serving beneath Mr. Haskins
were various Junior Vice Presidents and, beneath the Junior Vice Presidents were Regional Managers.
Sept. 8, 2016 Trial Tr. at 102:1-103:19. Finally, beneath the Regional Managers were the Medical Directors
and Health Services Administrators (i.e., Dr. Deborah Wilson and Wendy Johnson). Id. It is the Medical
Directors and Health Services Administrators who are in charge of the medical treatment and day-to-day
operations of the facilities.
4
6
and PrimeCare’s Health Services Administrator Wendy Johnson were responsible for dayto-day operations. Id. at 102:16-19.
Dr. Wilson has been employed by PrimeCare since 2005.5 Id. at 71:21-22. She is the
Medical Director at the MCCF and at Schuylkill and Pike County Correctional Facilities. Id.
at 72:23-73:1. In 2009, Dr. Wilson was the only medical doctor at the MCCF. Id. at 78:1779:1. As the Medical Director and the only medical doctor at the MCCF, she treated
patients once a week from 9:00 a.m. to 1:15 p.m. Id. at 78:17-80:10. If she did not get
through the list of patients to see she would not stay to finish. Id. The nursing staff at the
MCCF complained to PrimeCare about the lack of physicians in the facility and the need for
a doctor to be present more than four hours per week. Id. at 12:23-16:4.
Dr. Wilson testified that her role as Medical Director “pretty much” involves nothing other
than being a physician. Id. at 73:2-8. She does not attend any meetings, does not
participate in quarterly meetings with the warden, and does not participate in death
summaries or mortality reviews. Id. at 73:9-16. None of the medical staff at the MCCF
report to her and she does not consider herself to be anyone’s supervisor or boss.6 Id. at
74:21-75:6. Rather, it is the responsibility of Wendy Johnson, a licensed practical nurse
Dr. Wilson was initially a named Defendant in this case. On the first day of the trial, however, the
parties stipulated to the dismissal of all claims against her.
5
In 2009, PrimeCare also employed a Physician’s Assistant at the MCCF, Jennifer Mroz. Ms. Mroz,
like Dr. Wilson, came into the MCCF once per week. The Court previously noted on summary judgment
that there was a dispute of fact of whether Dr. Wilson was directly involved in Mr. Barbaros’ care and, if not,
whether she functioned in a supervisory capacity “in accordance with applicable state regulations.” (Doc.
175, at 14 n.11) (citing 49 Pa. Code § 18.151).
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(“LPN”) and PrimeCare’s Health Services Administrator, to supervise the nursing staff at the
MCCF. Id. at 90:4-10.
Dr. Wilson is not involved in the creation or implementation of PrimeCare’s policies and
procedures. Id. at 75:11-76:8. Rather, PrimeCare sends her the policies and procedures it
wants implemented at each facility and then she signs off on the policies and procedures,
on behalf of PrimeCare, without reading them in any detail. Id. She testified that she signs
whatever PrimeCare wants her to sign and implements whatever PrimeCare wants her to
implement. Id. at 77:13-16. Dr. Wilson could not recall ever speaking with any individual at
PrimeCare’s corporate offices regarding policies and procedures. Id. at 76:12-18. She
acknowledged that, in 2009, for individuals like Mr. Barbaros who arrived at the MCCF on a
Wednesday, the first time they would have been able to see a doctor or a physician’s
assistant would be the following Monday – five days later. Id. at 79:11-17.
Wendy Johnson is a LPN and PrimeCare’s Health Services Administrator at the MCCF.
She has been employed by PrimeCare since 2002. Mrs. Johnson was hired by Todd
Haskins, who is both a Registered Nurse (“RN”) and PrimeCare’s Vice President of
Operations. Mr. Haskins was Wendy Johnson’s supervisor but he was not involved in dayto-day operations or medical care. Wendy Johnson’s responsibilities included, among other
things, acting as the liaison between PrimeCare’s medical department at the MCCF and
Monroe County. Id. at 162:19-22; Sept 7, 2016 Trial Tr. at 165:20-166:24. She was also
responsible for training and supervising the nursing staff, quality assurance, and the overall
8
workings of the medical department at the MCCF. Sept. 8, 2016 Trial Tr. at 165:15-166:24.
PrimeCare trains its nursing staff in various areas, including suicide prevention, recognition
of withdrawal, and National Commission on Correctional Healthcare (“NCCHC”) standards,
among other things. All of the nurses employed by PrimeCare at the MCCF were LPNs. Id.
at 162:19-22.
There are important distinctions between a LPN and a RN. A LPN is qualified to
undertake “the performance of selected nursing acts under the direction of a Licensed
Professional Nurse, a Licensed Physician, or Licensed Dentist which do not require
specialized skill, judgment and knowledge required in Professional Nursing.” Id. at 155:9158:2. In contrast, a RN, also known as a Licensed Professional Nurse, “assesses human
responses and plans, implements, and evaluates nursing care for individuals.” Id. at
149:10-150:11. In order to become a RN, an individual is required to engage in more
training and schooling than a LPN. Id. at 153:23-154:6. Thus, if an individual is going to
provide nursing care as a LPN, that individual is required to be supervised by either a RN,
licensed physician, dentist, or psychiatrist. Id. at 160:14-18. At the MCCF, however, a LPN
was supervising other LPNs.
PrimeCare, through independent contractors, also provided psychiatric and mental
health services for inmates at the MCCF. PrimeCare contracted with Dr. Thomas, a
psychiatrist, to provide psychiatric services to inmates at the MCCF on its behalf. Sept. 9,
2016 Trial Tr. at 4:1-12. Dr. Thomas provided on-call psychiatric services and also came
9
into the facility for a few hours per week every other week. PrimeCare also contracted with
Forensic Counseling Services to provide psychological services to inmates at the MCCF on
its behalf. Sept. 8 2016 Trial Tr. at 166:7-11. William Buffton, a master’s level psychologist
and employee of Forensic Counseling Services, was given the title “Mental Health Worker”
by PrimeCare and was at the facility each week for approximately twelve hours. Id. at
166:22-167:2. Mr. Buffton testified that while working at MCCF he was acting as a
psychologist and providing psychological services to inmates. As such, he was required to
work under the supervision of a licensed and doctoral level psychologist or psychiatrist.
Sept. 9, 2016 Trial Tr. at 56:10-62:8. However, he was not supervised by either a licensed
doctoral level psychologist or psychiatrist. Id. Instead, he was supervised by a Licensed
Social Worker at Forensic Counseling Services. Mr. Buffton was required to conduct
suicide assessments of patients he met with at the MCCF and had the ability to place
inmates on suicide watch or monitoring, but the decision was not his final call. Id. at 64:2465:5. He did not receive any suicide prevention training from PrimeCare. Id. at 77:12-14.
PrimeCare’s policies and procedures mimic the minimum standard of care for a
correctional environmental as set forth by the NCCHC. Sept. 8, 2016 Trial Tr. at 110:8-14.
These policies and procedures include, among other things, monitoring and suicide watch.
It is a “very easy process” to place an inmate under observation. Sept 8, 2016 at 30:14-31:4
PrimeCare also has policies and procedures for verification of medications, which
provide for four ways a patient’s medication can be verified: calling the patient’s pharmacy,
10
contacting the prescribing doctor, calling a family member and asking them to bring in the
medication, or if the inmate simply brings the prescriptions with him into the facility. Sept. 8,
2016 Trial Tr. at 116:20-119:13. If a nurse makes only one of these efforts (such as only
calling the pharmacy), cannot verify the medication, and makes no attempt to obtain the
medication using the alternative methods, he or she has failed to comply with the policies
and procedures of PrimeCare. Id. at 124:16-23. If a nurse is unable to verify a medication,
he or she is required to contact the on-call medical provider to let them make the final
determination. Id. at 118:25-119:4.
PrimeCare’s policies and procedures require that the medical staff must document all
efforts to verify medications and provide that medications should be verified by the end of
the next business day following admission. Id. at 119:8-16. If an individual comes into the
MCCF and indicates that he or she takes psychiatric medications, such as Paxil or Prozac,
and the nursing staff cannot verify the medication, PrimeCare’s policies require the on-call
psychiatrist to be called and have the patient placed on the provider line.7 Id. at 119:21120:21; 124:3-23.
PrimeCare expects that if the nursing staff is unfamiliar with a particular medication or its
side effects, the nurse should research the medication. It does not, however, provide any
training regarding different types of medications or the impact they have on the body. Id. at
126:9-127:23. PrimeCare’s policies and procedures also require that all employees and
The provider line “is where the doctor comes in, if one of the nurses or anyone in the building
recommends that the patient be seen by a provider, a doctor, a dentist, or psychiatrist.” Sept. 7, 2016 Trial
Tr. at 193:10-18. It is the nursing staff’s responsibility to place a patient’s name on the provider line.
7
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agents review a patient’s medical file before rendering treatment and completely and
accurately fill out medical forms, including documenting when the last time a patient has
taken his or her medication. Id. at 130:14-17. If information is missing from a patient’s
intake form and medical chart, the nurses have a duty to investigate and obtain the missing
information. Id. at 21:8-14.
To ensure adequate supervision of its employees and agents, PrimeCare utilizes a
Continuous Quality Improvement (“CQI”) program. Sept. 8, 2016 Trial Tr. at 130:14-131:10.
In general, CQI consists of pulling approximately 5% of medical charts at random and
reviewing those charts to see if there any mistakes the nursing staff is making and, if so, to
implement a corrective plan of action. At the MCCF, CQI was Wendy Johnson’s
responsibility. At the corporate level, PrimeCare also utilizes a “peer review process” where
individuals not associated with the facility conduct a mock NCCHC audit. Id. at 131:11-17.
In addition, approximately every three years the NCCHC sends a team of doctors and
nurses to conduct a complete review of the medical department. Id. Both the CQI program
and the peer review process are the tools PrimeCare utilizes to “know… what’s going on in
[its] facilities.” Id. at 131:18-20. When asked about PrimeCare’s CQI program, Dr. Wilson
testified that nobody from PrimeCare or anywhere else comes into the facility to supervise
her work or the work of the physician’s assistant. Id. at 77:23-78:16. She testified that she
believes “there is a quality control that goes on, but I don’t really know who does it or when
12
it’s done.” Id. It is the responsibility of Wendy Johnson, as Health Services Administrator,
to oversee the CQI process.
B. March 18, 2009 – March 22, 2009
1.
Paul James
Shortly after Mr. Barbaros was arrested, Paul James, a LPN employed by PrimeCare at
the MCCF, conducted an intake medical screening. In 2009, Nurse James was the only
medical personnel at the MCCF during the overnight shift and testified it was “very busy at
night.” Sept. 7, 2016 Trial Tr. at 61:23-62:5. While conducting the intake, Nurse James
made numerous mistakes and violated several policies and procedures. For example, he
listed Mr. Barbaros’ first name as “Nunuun” and took no steps to verify the correct spelling
of his name. Id. at 32:12-19. On another form, he spelled Mr. Barbaros’ first name as
“Munmum.”8 Id. at 45:5-13. Nurse James indicated on the intake form that Mr. Barbaros
was taking the prescription medications Trazodone and Prozac. He also documented that
he had a history of ulcers. Id. at 38:16-41:2. Mr. Barbaros, however, had been prescribed
Paxil, not Prozac. Because Mr. Barbaros had a history of ulcers, Nurse James placed him
on the provider line to see a medical doctor.
There are several forms in the intake packet that inform detainees that “PrimeCare Medical, Inc.
provides the medical care for this facility.” Sept. 7, 2016 Trial Tr. at 32:20:33:18. Mr. Barbaros signed a
form indicating that he understood that medical services were available and being provided by PrimeCare.
Nurse James described this process as: “generally, we tell that it’s provided by PrimeCare Medical, and
that if they need to see medical, they fill out a sick call request, put it in the box marked, Medical, in the unit,
and they’ll be seen probably the next day, because they’re picked up every night, which is another one of
my jobs.” Id. at 69:2-10.
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Nurse James also obtained the name of Mr. Barbaros’ prescribing physician, Dr. Richard
Katz, as well as the name of the pharmacy where Mr. Barbaros filled his prescriptions – the
CVS in Mountainhome. Id. at 39:16-22. He correctly documented Mr. Barbaros’ address,
date of birth, and social security number. Id. Due to the late hour, however, Nurse James
could not verify Mr. Barbaros’ medications. Id. at 51:3-10. Instead, he passed the
information he collected to the nurse on the morning shift.
Nurse James did not obtain and document all of the information required on the intake
form, including whether Mr. Barbaros was a pretrial detainee or sentenced prisoner. Id. at
35:21-36:2. Although Nurse James noted that Mr. Barbaros was taking psychiatric
medications, he did not document why Mr. Barbaros took these medications, the dosages,
or the last time he took these medications. Id. at 38:20-39:15; 49:9-50:5. PrimeCare’s
policies require that when an incoming patient is taking psychiatric medications, like those
taken by Mr. Barbaros, the patient should be placed on the psychologist’s list to be seen the
next day. Id. at 43:19-25. Nurse James did not place Mr. Barbaros on the “psych list.” Id. at
44:7-13. He acknowledged that, in accordance with PrimeCare’s policies and procedures,
he should have placed Mr. Barbaros on a list to see a mental health professional the next
day. He testified that he did not know at the time that “our mental health or psychologist
was part time.” Id. at 43:6-44:10.
During the intake, Nurse James checked Mr. Barbaros’ vital signs, which were found to
be normal. Id. at 46:15-47:5. He also completed an intake suicide screening. Id. at 53:1314
21. Based on Mr. Barbaros’ answers to his questions, Nurse James determined that Mr.
Barbaros did not warrant observation.9 Id. at 53:13-21. The parties agree that Mr. Barbaros
was not suicidal at the time of the intake. Sept. 8, 2016 Trial Tr. at 33:24-5. Nurse James
had no other interactions or involvement in the care of Mr. Barbaros.
At trial, Nurse James testified that he knew it was important to accurately and completely
fill out the intake forms in order to ensure proper medical treatment is rendered to patients.
Id. at 29:20-30:10. He acknowledged that if information necessary for diagnosis or treatment
of a patient is missing from an intake form that the nursing staff should investigate. Id. at
31:4-8. He testified that he was aware that if an individual like Mr. Barbaros did not promptly
receive his medications, he could potentially suffer from withdrawal. Id. at 57:11-14. He
further acknowledged that he knew errors on an intake form can put a patient at risk of
physical harm. Id. at 81:5-17. Nurse James testified that when an individual comes into the
MCCF with psychiatric issues and on psychiatric medications he considers this a serious
medical need. Id. at 81:5-17.
On the suicide assessment Mr. Barbaros scored a total of two points, based on his history of mental
health treatment. PrimeCare’s policies require that if an individual scores eight points or higher they are
placed on monitoring. If a person is showing signs of withdrawal, it is an automatic eight and they will be
placed on a watch. When that happens, most of the individual’s clothing would be taken away, he would be
placed in a suicide smock, and somebody would check on the inmate every fifteen minutes. Sept. 7, 2016
Trial Tr. at 53:13-66:18.
9
15
2.
Patricia Bauer
The next person involved in Mr. Barbaros’ care was Patricia Bauer.10 Nurse Bauer is a
LPN and had been working for PrimeCare only for a few months. She received her nursing
degree in 2008 and this was her first permanent nursing job. She described the training she
received from PrimeCare as consisting of shadowing other nurses and learning the job “as
you go.” Id. at 127:4-10. She could not recall very much, if any, formal training she received
from PrimeCare. Id. at 128:6-13.
Using the information communicated to her by Nurse James earlier that day, she made
a telephone call to CVS at approximately 2:00 p.m. and attempted to verify Mr. Barbaros’
medications.11 Id. at 134:8-18. For unknown reasons, Nurse Bauer could not verify Mr.
Barbaros’ prescriptions. She testified that she called multiple CVS pharmacies in the area
but they were all unable to verify his medications.12 She indicated on Mr. Barbaros’ medical
chart that “CVS denies customer” and “may put on the psych list.” Id. at 134:15-18.
Although Nurse Bauer made a notation that “CVS denies customer” she neglected to fill out
the section requiring her to state “If not verified, please explain.” Id. at 51:25:52:14.
Because of a medical issue, Nurse Bauer was unable to testify at trial and was also unable to sit for
a videotaped trial deposition. Instead, the transcript of her discovery deposition was read to the jury.
10
She described the verification process as: “it’s just, call the pharmacy when you get a chance and
see if the pharmacy can back them up.” Sept. 7, 2016 Trial Tr. at 137:12-145:13.
11
Nurse Ramos, however, testified that if you call one CVS, they have a database and would be able
to search all of their branches’ records. Therefore, she said there would be no need to call multiple CVS
pharmacies. Sept. 8, 2016 Trial Tr. at 19:24-20:5.
12
16
Nurse Bauer placed Mr. Barbaros on the “psych list” to meet with a mental health
professional. Id. at 134:24-135:6. She did not, however, contact Mr. Barbaros’ prescribing
physician or call his wife and ask her to bring the medications (despite having this
information). Id. at 145:25-148:8. Nor did she speak with Mr. Barbaros in an attempt to
obtain more information that could assist with the verification of his medications. She also
did not contact the on-call psychiatrist. Her acts and omissions violated PrimeCare’s
policies and procedures.
Nurse Bauer testified that she would never call an inmate’s physician for medication
verification. Id. at 145:146:20. When asked if it was that much extra effort to call the
inmate’s prescribing physician she testified: “Do we have a phone number for the doctor?
Do we have an address for the doctor? Is he even telling the truth? Do I have 15 other
intakes that I have to get through and it’s 2 p.m. in the afternoon already?” Id. at 147:10-21.
She said “you do the best you can with the time you have with the amount of inmates you’re
dealing with.” Id. at 147:22-148:2.
Nurse Bauer then described her experiences with inmates lying about being on
medications and other types of drug seeking behavior. She testified that an inmate seeking
an SSRI (“Selective Serotonin Reuptake Inhibitor”) medication like Paxil could be among
those inmates lying about their medication to obtain mind altering drugs, but did not recall
that ever having occurred. Id. at 137:12-145:13. When asked whether an individual coming
into the MCCF reporting depression and that he or she is taking psychiatric medications
17
“raises any kind of red flag” she said, “At the jail? No. So many of them will say that
because they want that drug. They walk in the doors, they say, Hi, you’re the nurse, put me
on the psych list.” Id. at 148:3-8.
Nurse Bauer testified that she knew it was important that complete and accurate
information is documented on the intake forms because it affects her ability to verify
medications. Id. at 129:17-130:4; 138:4-139:2. She was also aware that if a patient is
without medications, including psychiatric medications like Paxil, there is a possibility that
patient can suffer from withdrawal. When confronted with Nurse James’ intake forms she
testified: “I don’t know what happened with the man that did this intake, why he would do
this. I’m sure it was just trying to be fast.” Id. at 137:13-141:12. Nurse Bauer’s only other
involvement in the care of Mr. Barbaros lasted “seconds” when she gave him his Paxil and
Lopressor on the morning of March 21. Id. at 130:5-132:12.
On March 19, 2009 (the day after Nurse Bauer attempted to verify Mr. Barbaros’
medications), Mr. Barbaros was not seen by any medical staff and there is no record that
anyone made an attempt to verify and obtain his medications. Later that day, he developed
a headache and submitted a sick call slip that stated: “I’m experiencing headaches. Could I
get something to relieve the pain? Also, I have a stomach ulcer. Would it be possible for
me to get something for this as well?” Rowe Dep. Tr. at 14:14-19.
18
3.
Christina Rowe
At 10:30 a.m. on March 20, 2009, Mr. Barbaros was seen by Christina Rowe, a LPN
employed by PrimeCare at the MCCF.13 Working for PrimeCare at the MCCF was Nurse
Rowe’s first nursing job. Id. at 7:6-22. She, like Nurse Bauer, testified that the extent of the
training she received from PrimeCare was being paired with another nurse and following
them around. Id. Nurse Rowe nevertheless testified that she still received “a lot of training”
from PrimeCare but did not recall the specifics. Id. She also did not recall if she received
suicide prevention training, but said there “probably was” suicide prevention training. Id.
61:3-24.
Nurse Rowe assessed Mr. Barbaros in response to his sick call request. She did not,
however, review his medical chart prior to performing the assessment and providing
treatment. Id. at 16:20-18:3. Performing an assessment and providing treatment without
accessing or reviewing a patient’s medical chart is a violation of PrimeCare’s policies and
Nurse Rowe was unable to testify at trial and her videotaped trial deposition was played to the jury.
Before her deposition was played to the jury, the parties had raised, and the Court resolved, several
objections. Sept. 7, 2016 Trial Tr. at 148:20-162:15. Due to a mistake arising from oversight or omission,
the transcript was never made part of the record in this case. After becoming aware of the missing
transcript, the Court’s Courtroom Deputy contacted counsel for Plaintiffs and the Defendants and obtained
the missing transcript from both counsel for the Plaintiffs and counsel for Dr. Thomas.
13
Pursuant to Federal Rule of Civil Procedure 60(a), “[t]he court may correct a clerical mistake or a
mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the
record. The court may do so on motion or on its own, with or without notice.” Fed. R. Civ. P. 60(a).
Consistent with this authority, the Court will issue a separate Order directing the Clerk of Court to make
Nurse Rowe’s deposition transcript part of the record in this case in order to correct a mistake arising from
oversight or omission found in the record. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice
& Procedure § 2854 (3d ed. 2017) (“A document that inadvertently was omitted from the record may be
added” pursuant to Rule 60(a)) (citing United States v. Stuart, 392 F.2d 60 (3d Cir. 1968)).
19
procedures. Id. However, Nurse Rowe testified it was “very normal” not to have an inmate’s
medical file at her disposal while performing sick call assessments. Id. at 19:8-24. On the
assessment forms, Nurse Rowe identified Mr. Barbaros as a “female” and also spelled his
name incorrectly. Id. at 79:14-89:4. She also made several other mistakes on the forms, and
conceded she did not obtain complete and accurate information. Id. at 79:14-80:4.
During the assessment, Mr. Barbaros described his headache to Nurse Rowe as
moderate, frontal, and constant and stated that nothing made the pain better. Id. at 22:2123:4. Nurse Rowe took Mr. Barbaros’ vital signs and noted he had high blood pressure that
was clinically significant. Id. at 23:5-16. Specifically, Mr. Barbaros’ blood pressure was
170/105 (a significant increase from his blood pressure at intake). Nurse Rowe ordered and
provided Mr. Barbaros with Acetaminophen 325 mg for his headaches, to be taken twice
daily for five days. Id. at 31:18-21. She, like Nurse James, placed Mr. Barbaros on a list to
see a medical provider because of his ulcer. Id. at 32:2-6. Nurse Rowe acknowledged that
when performing an assessment on a patient complaining of a headache and with irregular
vital signs, it would be important to know what medications the patient had been taking.
She conceded that it would have been helpful if she had Mr. Barbaros’ medical files with her
at the time of her assessment. Id. at 26:25-28:6.
At 2:00 p.m., Nurse Rowe spoke with Jennifer Mroz, the on-call physician’s assistant at
the MCCF. She did not inform Ms. Mroz that Mr. Barbaros claimed he was on medications
and they had not been verified. Ms. Mroz verbally ordered 50 milligrams of Lopressor, a
20
blood pressure medication, to be given to Mr. Barbaros twice a day for thirty days. Id. at
36:6-14. She also ordered daily blood pressure checks for the next five days. Id. Nurse
Rowe documented this information on Mr. Barbaros’ medical chart and would or should
have known at this time that his medications had not been verified in over 48 hours. Despite
receiving medical orders to check Mr. Barbaros’ blood pressure daily, there is no record that
his blood pressure was ever checked again by any member of the nursing staff.14 Id at
37:5-15. This, too, was a violation of PrimeCare’s policies and procedures. Nurse Rowe
acknowledged that if a physician or physician’s assistant orders blood pressure checks they
must be performed, and that failing to do so puts the patient at risk of harm.15 Id. at 38:2439:3. She conceded that she took no steps to verify Mr. Barbaros’ medications and
acknowledged that her failure to do so could put a patient at risk of harm. Id. at 41:22-43:5;
47:5-10; 52:20-53:16.
On the afternoon of March 20, 2009, Mr. Barbaros was transported from the MCCF to
Court for his arraignment. During the arraignment, he learned he would face additional
charges and his bail would be increased. While in court, Mr. Barbaros complained to the
Judge that he was not receiving his medications. The Judge asked the police officers
escorting Mr. Barbaros back to the MCCF to relay Mr. Barbaros’ concerns to the appropriate
personnel.
It is generally accepted that if a nurse or doctor does not document something on a patient’s medical
chart, it is considered to have never happened.
14
It was Nurse Rowe’s responsibility to ensure Mr. Barbaros was placed on a list so others would know
to check his blood pressure the following day. Rowe Dep. Tr. at 36:3-37:4.
15
21
At the arraignment, Howard Frank, a staff reporter for the Pocono Record, observed Mr.
Barbaros from the time he arrived in Court until the time he left. Id. at 163:8-10. Mr. Frank
observed Mr. Barbaros with his shoulders slumped and head down. Id. at 163:11-12. He
also confirmed that Mr. Barbaros complained to the Judge about not receiving his
medications.16 Id. at 163:18-19.
4.
Wendy Johnson
Mr. Barbaros returned to the MCCF at approximately 5:00 p.m. Shortly after his arrival,
Wendy Johnson, a LPN and PrimeCare’s Health Services Administrator at the MCCF, was
notified that Mr. Barbaros complained about not receiving his medications. Id. at 168:1-10.
It is Wendy Johnson’s responsibility to, among other things, supervise and train the nursing
staff on behalf of PrimeCare and act as a liaison between Monroe County and the
PrimeCare staff at the MCCF. Id. at 165:20-166:24.
Wendy Johnson reviewed Mr. Barbaros’ medical chart and saw that his prescriptions
had not been verified and was aware that important information was missing from his forms.
Plaintiffs served a subpoena on Mr. Frank to testify at trial. Mr. Frank’s counsel, as well as counsel
for the Defendants, raised objections to his testimony. Sept. 7, 2016 Trial Tr. at 96:1-120:21. Specifically,
Mr. Frank’s counsel sought to quash the subpoena on the theory that a reporter like Mr. Frank could not,
consistent with the First Amendment, be compelled to testify under the circumstances of this case. Counsel
for the PrimeCare Defendants and Dr. Thomas, in turn, objected to Mr. Frank’s testimony on the grounds
that if he was permitted to testify about Mr. Barbaros’ demeanor on the day in question, then they should be
permitted to introduce video of Mr. Barbaros’ “perp walk.” The video in question was the subject of a
pretrial motion in limine filed by Plaintiffs, (Doc. 227), which the Court deferred ruling on. (Doc. 276). The
video Defendants sought to introduce showed Mr. Barbaros shackled and in a prison jumpsuit walking into
the courthouse as he was being questioned by reporters. The parties eventually reached a stipulation and
approximately three sentences of Mr. Frank’s testimony were read to the jury. Id. at 118:15-120:21. At no
time did counsel for the Defendants ever ask the Court to rule on the pending motion, nor did they move to
introduce to “perp walk” video into evidence.
16
22
She then called Grace Ramos, another LPN employed by PrimeCare at the MCCF, and
instructed her to try to verify his medications. Id. at 170:10-16. She did not, however, tell
Nurse Ramos to report back to her. Nor did she inform Nurse Ramos about the deficiencies
in Mr. Barbaros’ forms or ask her to obtain the missing information. Id. at 179:9-23. Mrs.
Johnson acknowledged that after reviewing the medical chart and seeing that Mr. Barbaros’
medications had been denied and that no further efforts to verify the medications had been
documented, she should have investigated to make sure further efforts were taken to verify
the medications.17 Id. at 183:3-9.
Todd Haskins echoed much of Wendy Johnson’s testimony. Mr. Haskins is a RN,
PrimeCare’s VP of Operations, and Wendy Johnson’s supervisor. He testified that if Wendy
Johnson reviewed Mr. Barbaros’ chart and saw that the last time he had taken his
medication was unknown, PrimeCare’s policies required her to communicate this
information to the nursing staff. Sept. 8, 2016 Trial Tr. at 132:22-133:6. Mr. Haskins also
testified that, as the nursing supervisor, Wendy Johnson should have investigated the
failures of the nursing staff in connection with Mr. Barbaros’ treatment. Id. at 135:11-23.
Despite these obligations, at no time did Wendy Johnson communicate to Nurse Ramos or
any other medical provider or member of the nursing staff that there had been a delay in Mr.
Barbaros receiving his psychiatric medications. Nor did Mrs. Johnson speak with Mr.
Barbaros to inquire into his well-being.
Mrs. Johnson testified that, in her experience, calling the pharmacy was the easiest way to verify
medications. She testified that calling the inmate’s physician was a slow process because they would not
release any information without a signed HIPAA form. Sept. 7, 2016 Trial Tr. at 196:8-19.
17
23
At trial, Mrs. Johnson testified that it is important to know the last time a patient took his
or her medications and the proper dosage because, among other things, it is possible that a
patient without their medications could go through withdrawal. She acknowledged that
when an intake nurse fails to accurately and completely fill out the intake form they could
potentially be putting the patient’s safety at risk. Id. at 173:2-12; 173:20-23. She testified
that she was aware that failure to record this information was a violation of PrimeCare’s
policies and procedures. Id. at 173:13-19. She acknowledged that a nurse performing an
assessment of a patient should obtain and review the patient’s medical records prior to
assessing the patient. Id. at 182:6-15. She also conceded that she knew that if medications
are denied to a patient, and nothing is done to investigate, then there is a risk that the
patient could suffer side effects from being without those medications. Id. at 184:7-18.
Wendy Johnson testified that PrimeCare trains its employees and agents on recognition
of withdrawal symptoms. Id. at 175:19-21. She acknowledged that symptoms such as a
headache and high blood pressure could be symptoms of withdrawal. Id. at 175:22-25.
She also conceded that, when reviewing Mr. Barbaros’ records, she would have seen that
he had been prescribed Lopressor earlier that day, was suffering from high blood pressure
that he did not experience upon intake, and had not received his medications in at least
three days. Id. at 177:6-10. Despite this knowledge, she did not make any efforts to
24
investigate, or ask any staff member to research possible side effects of Paxil withdrawal.18
Id. at 178:19-179:5.
5.
Grace Ramos
Nurse Ramos was the only member of the medical staff at the MCCF on the evening of
March 20, 2009. She testified that she and the other nurses complained to PrimeCare
about lack of staffing and that the nurses needed extra help to complete tasks during their
shifts. PrimeCare, however, felt that one LPN per shift was appropriate. Id. at 12:23-16:4.
Nurse Ramos also testified that she and the nursing staff complained to PrimeCare about
the lack of physicians in the facility, and that they needed access to a doctor more than four
hours per week. Id. Specifically, she testified the reasons for the complaints were “because
the doctors would come in at the beginning of the week, and by the time they did all the sick
calls from Wednesday through the weekend, the nursing staff would have a backlog of
patients to see.” Id. at 16:9-14. She then noted that Dr. Wilson’s sick call list “would be
around 20 patients or more.” Id. at 16:15-19. Although they had access to on-call
providers, she testified that none of the providers would actually review medical records.19
Following Mr. Barbaros’ death, Mrs. Johnson did not review the mistakes with any of the nursing staff
involved in Mr. Barbaros’ care. Sept. 8, 2016 Trial Tr. at 206:25- 207:5.
18
Counsel for the PrimeCare Defendants objected to this line of testimony on several grounds. He
noted that any staffing issues are a “product of the contract that is established with Monroe County. Monroe
County is actually the one who establishes the level of staffing, because that’s what they contract for with
PrimeCare. So if there’s a complaint about the level of staffing, the complaint should be as to Monroe
County, because they’re the ones to say, this is level of staffing that we want.” Sept. 8, 2016 Trial Tr. at
13:24-14:5.
19
25
After receiving a call from Wendy Johnson apprising her of Mr. Barbaros' complaints,
Nurse Ramos called CVS pharmacy at approximately 9:35 p.m. on the evening of March 20.
Nurse Ramos, using the same information obtained and documented by Nurse James,
successfully verified his medications with CVS. She did not review Mr. Barbaros’ medical
chart and was unaware when he had last taken his medications. Id. at 20:23-21:1. Nurse
Ramos acknowledged that if she had reviewed the file she would have learned that
important information was missing and she would have had a duty to investigate or
communicate this information to the medical provider. Id. at 21:8-14. She also
acknowledged she knew one of the reasons to conduct such an investigation would be to
determine whether a patient was suffering from any withdrawal or side effects, and that she
should have looked into potential side effects related to abrupt discontinuation of Paxil. Id.
at 21:23-26:9. She testified, however, that her “main goal was to verify his meds and get it
to him as soon as possible.” Id. at 25:5-7.
After verifying Mr. Barbaros’ medications with CVS, Nurse Ramos called Dr. Thomas, an
independent contractor and PrimeCare’s on-call psychiatrist. She spoke to him over the
telephone for approximately one minute. Id. at 27:14-19. Nurse Ramos could not recall
whether Dr. Thomas asked her to review Mr. Barbaros’ medical records, asked her to check
the last time he took his medications, or asked about his physical condition and vital signs.
Id. at 28:2-19.
26
Nurse Ramos acknowledged that PrimeCare’s policies require the medical staff
completing intake paperwork to verify the spelling of the patient’s name and to take steps to
ensure the intake paperwork is fully and completely filled out. She conceded that if a patient
says he is taking medications, a nurse must find out when they were last taken and why
they were taken. Id. at 5:9-23. She also acknowledged that when a nurse does not
complete the paperwork properly, they are potentially putting their patient at risk. Id. at
6:15-18. Nurse Ramos testified that if a nurse is having trouble verifying a patient’s
medication with a pharmacy, they could call the patient’s physician to verify the medication,
but that she never did this. Id. at 6:19-7:20.
Nurse Ramos was trained to recognize withdrawal symptoms. She testified that among
the symptoms to look for are fluctuations in vital signs. Id. at 9:5-10. She acknowledged
that signs of withdrawal may include a headache, high blood pressure, and pacing. She
said it is the responsibility of the medical staff to recognize someone suffering from
withdrawal. Id. at 9:16-10:1. Finally, she acknowledged that it is a very easy process to put
someone on a watch or under observation and that it is better to err on the side of caution
and put someone on watch when in doubt.20 Id. at 30:14-31:4.
20
Nurse Ramos testified about monitoring and suicide policies in place at the MCCF as follows:
When we get a new commit, based on their charges, their psychiatric history, if they have
one, if they score an automatic 8, then, we would put them on level 1 watch. Sometimes
we will get a person who will score a level 8, but it’s all based on a total of 1 point on the
scale, which it could – you easily score an 8, if you’re worried about your family, never
been in jail before, you’re under the influence of drugs or alcohol, all these are 1s and can
easily get to a 8, but it doesn’t necessarily mean you’re suicidal, so we have to take that
27
6.
Dr. Alex Thomas
Upon receiving the call from Nurse Ramos that Mr. Barbaros’ prescriptions had been
verified by CVS, Dr. Thomas (who had no information about Mr. Barbaros other than the
fact his prescriptions had been verified) verbally prescribed Paxil and Trazodone in the
same doses he had been prescribed by Dr. Katz, Mr. Barbaros’ physician. Before
prescribing the medications, Dr. Thomas did not: (1) ask Nurse Ramos any questions about
Mr. Barbaros’ condition or history; (2) review his medical charts or ask Nurse Ramos to
review his medical charts; (3) ask if Mr. Barbaros had a history of mental illness; (4) ask
when Mr. Barbaros had last taken his medications; or (5) ask if Mr. Barbaros was exhibiting
any signs or symptoms associated with withdrawal. Sept . 9, 2016 Trial Tr. at 16:25-18:1;
18:22-19:7; 29:16-32:12. Dr. Thomas testified that it was his usual practice to speak with
the nurse about the medications the inmates were taking and that most of the time he would
have asked these questions. However, his primary and immediate concern was that Mr.
Barbaros receive the medications he had been taking prior to his incarceration and then
note that he needed to be re-evaluated. Id. at 18:8-18.
into consideration. Sometimes a person will deny that they have any psychiatric histories,
issues, but their demeanor… or you could get a feeling that something is not quite right,
you would put them, either on level 1 or level 2, until they’re seen by a mental health
provider or psychiatrist.
Sept. 8, 2016 Trial Tr. at 31:5-21. She described level one is a detox watch as “a 15-minute watch, and the
inmate is placed in a day room, and they’re observed by the corrections officer on the unit every 15
minutes, watch to make sure they’re breathing, that they’re not agitated, that they’re not having difficulty
sleeping, things like that, so there are eyes on the unit, and if somebody is throwing up excessively, they’ll
call and let us know.” Id. at 39:5-40:2.
28
Dr. Thomas acknowledged that he was at fault for neither asking for nor obtaining any
information about Mr. Barbaros prior to prescribing him psychiatric medications. Id. at 31:67. He agreed that, as a physician, he had an obligation to investigate to find out why a
patient is taking a medication like Paxil and the last time they took the medication prior to
prescribing them medication. Id. at 32:24-33:5. He acknowledged that, in some instances,
when a patient has been off their medications for a number of days and the medication has
a short half-life (like Paxil), a patient may be exhibiting signs and symptoms of withdrawal.
Id. at 33:6-10.
Dr. Thomas acknowledged that he could have come into the MCCF that evening.
However, he did not believe it was necessary because it was not an emergency situation
and he was scheduled to come into the MCCF on Sunday.21 Id. at 39:13-16. He testified
that he could have put Mr. Barbaros on suicide watch or monitoring but that, in his clinical
judgment, he did not believe it was necessary. Id. at 49:8-21. Dr. Thomas acknowledged
that he knew nothing about Mr. Barbaros other than that a previous physician had
prescribed him Paxil and Trazodone.
At trial, Dr. Thomas acknowledged that certain prescription medications can cause
withdrawal and pose a risk of suicide when started or restarted, including Paxil. Id. at 9:1622. Specifically, he testified that he was aware that one of the risks of prescribing Paxil is
that the drug itself may cause suicidal ideations. Id. at 14:12-18. He agreed that an
Dr. Thomas provided in-person psychiatric services to the inmates at the MCCF once every other
week. Dr. Thomas’ partner came into the facility on his off weeks.
21
29
individual starting on SSRI medications like Paxil should be monitored and observed
closely, id. at 14:21-15:3, and that the only way to communicate information about these
risks is to speak with the patient or with the patient’s family. Id. at 15:4-7. However, he
stated that because these medications had already been prescribed by someone else he
has “to assume that the patient has been educated about the potential side effects and
things to watch for.” Id. at 15:18-19.
When asked by Plaintiffs’ counsel whether he was subjectively aware, at the time he
prescribed Paxil to Mr. Barbaros, that when starting a patient on medications like Paxil there
was a tendency that the patient could become suicidal, Dr. Thomas testified: “[o]nly if
somebody is started for the first time, not once it is resumed within a few days, no.” Id. at
41:14-22; 44:3-8. However, Dr. Thomas acknowledged that because he did not ask for any
information about Mr. Barbaros’ history, he had no way of knowing how long Mr. Barbaros
had been off his medications.
Dr. Thomas acknowledged the importance of early recognition and diagnosis of a
deteriorating mental condition, and also acknowledged that early recognition increases the
likelihood of avoiding injury to a patient. Id. at 21:25-22:8. He testified that without having a
complete picture of a patient’s background and condition, a doctor would not be in a position
to properly evaluate the patient to make a determination as to the proper course of
treatment and therapy, and that this could increase the risk of harm to a patient. Id. at 24:512. Dr. Thomas also testified that, in certain cases, a patient who is incarcerated for the first
30
time like Mr. Barbaros is at an increased risk of suicide. Id. at 24:16-22. He conceded that
when a patient has been off a medication like Paxil for several days or a week there is a
chance of suicide. Id. at 26:12-18. Finally, Dr. Thomas acknowledged that he should have
asked how long Mr. Barbaros had been off his medication because certain actions might
need to be taken until the medication is further built up in the patient’s system. Id. at 44:1217. For example, in certain circumstances, the patient should be placed under observation
until Dr. Thomas was able to come into the facility to meet with that patient. Id. at 38:8-39:2.
On the evening of March 20, 2009, Mr. Barbaros received his first (and only) dose of
Trazodone while at the MCCF. Sept. 8, 2016 Trial Tr. at 44:12-17. This was slightly less
than 72 hours after he first entered the MCCF at 3:00 a.m. on March 18.
On March 21, 2009, Mr. Barbaros received his first and only dose of Paxil at
approximately 9:00 a.m. He did not receive Paxil the evening before because it is a
medication prescribed to be taken in the mornings. Despite medical orders from a
physician’s assistant, there is no record that any medical personnel at the MCCF checked
Mr. Barbaros’ blood pressure this day. That morning Mr. Barbaros also spoke with his wife,
Plaintiff Miryem Barbaros. He informed her that he would make bail and would be able to
leave the MCCF on Thursday March 26. Sept. 6, 2016 Trial Tr. at 203:21-23-204:1-4.
7.
William Buffton
When Nurse Bauer was unable to verify Mr. Barbaros’ medications on Wednesday
March 18, she placed him on line to see a psychologist. On the afternoon of Saturday
31
March 21, Mr. Barbaros met with William Buffton, a psychological services associate. Sept.
9, 2016 Trial Tr. at 55:10-12. Mr. Buffton is a Psychological Services Associate, which is a
Civil Service Master’s Level Psychologist. He is not a licensed doctoral psychologist. Id.
Mr. Buffton previously worked for over ten years at the Pennsylvania State Department of
Corrections as a Psychological Services Specialist, a Grade 8 Master’s Level position. He
testified that when he is functioning as a Psychological Services Associate he is required to
work under the supervision of a licensed and doctoral level psychologist. Id. at 56:10-14.
Mr. Buffton was employed by Forensic Counseling Services, an independent contractor
hired by PrimeCare to provide psychological services to inmates at the MCCF. He was
given the title “Mental Health Worker” by PrimeCare, ostensibly obviating the need for
PrimeCare to supervise him. Id. at 56:15-21. However, Mr. Buffton testified that he was
acting as a psychologist and providing psychologist services at the MCCF without any
supervision from a licensed psychologist or psychiatrist.22 Id. at 57:8-15; 59:21-23; 62:8-11.
He testified that, as he himself contracted with Forensic Counseling Services, he did not
concern himself with who supervised him. Id. at 62:3-20.
Forensic Counseling Services is owned by Carol Haught. Mrs. Haught is not a licensed doctoral
psychologist. Mr. Buffton testified that she was either a Licensed Professional Counselor or a Licensed
Social Worker. Mr. Buffton considered Mrs. Haught his supervisor, but she did not review his therapy notes
and did not sit in with him during sessions. Rather, her role was to set up appointments. After objecting to
questions about PrimeCare’s supervision of Mr. Buffton, counsel for the PrimeCare Defendants indicated
that it was not and cannot be PrimeCare’s responsibility to make sure he is properly supervised in
accordance with the law because he was employed by another entity. The Court sustained his objection.
Sept. 9, 2016 Trial Tr. at 61:20-62:2.
22
32
As a Mental Health Worker at the MCCF, Mr. Buffton worked approximately 12.5 hours
per week at the MCCF. He also possessed the ability to place inmates on suicide watch or
monitoring. Id. at 64:24-65:5. The decision, though, was not his final call. Id. He did not
receive any training from PrimeCare on suicide prevention and was unfamiliar with
PrimeCare’s policies and procedures on suicide watch and monitoring. He testified he was
unfamiliar with the policies and procedures because PrimeCare did not require him to be
familiar with those policies and procedures. Id. at 77:12-14.
On the afternoon of March 20, 2009, Mr. Buffton briefly met with Mr. Barbaros for
approximately ten to eighteen minutes (at most). His notes from the meeting described Mr.
Barbaros as a recently arrested first-time inmate acting timid, subdued, emotional, and with
a history of treatment for anxiety and depression for which he took Paxil and Trazodone. Id.
at 68:6-10; 73:14-20. Throughout the meeting, Mr. Barbaros was turned away from Mr.
Buffton, staring at the floor and not making any eye contact. Id. at 81:8-83:2. Mr. Barbaros
only responded to Mr. Buffton’s questions with short answers and mumbling. Id. At his
deposition, Mr. Buffton described Mr. Barbaros as “looking like a cornered rat” and
appearing “very, very fearful.” Id. at 67:15-18. Although he acknowledged that many of
these behaviors indicate suicidal tendencies, Mr. Buffton noted that Mr. Barbaros became
more relaxed and animated as time went by.23 Id. at 68:11-13; 88:23-6.
When asked why he did not place Mr. Barbaros on suicide watch despite his symptoms, Mr. Buffton
testified that although these could have been signs of suicidal ideation, they also could have been signs
that he was from Eastern Europe and spoke English as a second language and therefore these symptoms
did not prove anything. Sept. 9, 2016 Trial Tr. at 85:17-86:3.
23
33
Like the other medical staff at the MCCF, Mr. Buffton did not review Mr. Barbaros’ medical
chart and did not discuss his physical condition with anyone. Id. at 70:8-72:15. He testified
he did not do this because in the limited time he had to meet with Mr. Barbaros he
understood his role as simply assessing whether Mr. Barbaros required further services. Id.
at 72:6-15. Mr. Buffton’s notes stated “rule out depression and rule out adjustment disorder.”
This meant that he suspected Mr. Barbaros was suffering from depression and/or adjustment
disorder. Id. at 67:24-68:5. Mr. Buffton intended to refer Mr. Barbaros to a psychiatrist. Id. at
68:14-15.
Mr. Buffton’s notes contain no record that he conducted a suicide assessment of Mr.
Barbaros and did not document any information indicative of suicide risks. Despite this lack
of documentation, Mr. Buffton testified that he conducted a suicide assessment and that Mr.
Barbaros’ symptoms and conduct “did not scream suicide.” Id. at 85:17-86:3. Instead, they
“indicated that he was under a lot of pressure, they indicated he was anxious, they indicated
he was fearful.” Id. at 85:17-86:3.
Mr. Buffton’s meeting with Mr. Barbaros is his last known interaction with any of the
medical staff at the MCCF. On the evening of March 21, he was scheduled to receive his
Trazodone. The medical records, though, indicate he was never provided this medication.
8.
Correctional Officers Cleary and Ryan
Two MCCF correctional officers, Christine Cleary and Jonathan Ryan, testified at trial.
Id. at 109:25-157:7. In 2009, Officer Cleary worked the second shift from approximately
34
7:20 a.m. to 5:20 p.m. Id. at 113:18-25. In March, she was stationed in the B Unit at the
MCCF (also known as the segregated housing unit). Id. at 11:2-119:18. She had observed
and recorded Mr. Barbaros’ behaviors over the course of three days and did not document
any unusual behaviors. Id. at 118:12-122:4-7. However, on the afternoon of March 21 she
observed Mr. Barbaros pacing in his cell and documented this on a behavioral observation
form. She testified this would have been out of character for Mr. Barbaros which is why she
made a notation. Id. at 121:25-126:2.
In 2009, Officer Ryan was also stationed in the B Unit. He worked the third shift
between approximately 4:40 p.m. and 12:40 a.m. Id. at 142:10-143:10. Officer Ryan did
not identify or document any unusual behaviors exhibited by Mr. Barbaros during the prior
days he had observed and recorded his behaviors. Id. On the evening of March 21, he
observed and documented that Mr. Barbaros was exhibiting “bizarre behavior.” Id. at
146:20-148:16. The “bizarre behavior” was that Mr. Barbaros had removed all of his
clothing and was in his underwear. Id. Officer Ryan recalled briefly speaking to Mr.
Barbaros that evening. He testified that at no time did he believe that Mr. Barbaros should
have been monitored or was a suicide risk. Id. at 152:23-153:2. Officer Ryan’s final note
observed that at 11:21 p.m. Mr. Barbaros was alive.
For the next seven hours Mr. Barbaros was not monitored or observed by any
correctional officer or medical staff. On Sunday March 22, at approximately 6:19 a.m., he
was found dead in his cell. An autopsy was performed and a fifteen centimeter long object
35
consisting of tightly rolled remnants of a t-shirt that had been fabricated into the shape of a
tubular plug was found wedged in Mr. Barbaros’ posterior oropharynx. The cause of death
was identified as “choking on a foreign object” and “suicide.”
C. Expert Witnesses
At trial Plaintiffs called four expert witnesses: Kathryn Wild, Dr. Peter Breggin, David
Hopkins, and Dr. Lorene Sheren. The PrimeCare Defendants and Dr. Thomas also
presented expert testimony from: Terry Fillman, Dr. Lawrence Mendel, Dr. Lawrence
Guzzardi, Dr. Cheryl Wills, and Dr. Susan Rushing.
1. Kathryn Wild
Kathryn Wild was offered, and accepted, as an expert in nursing and correctional health
care. Nurse Wild is a RN and Certified Health Care Professional. Sept. 8, 2016 Trial Tr. at
199:9-201:14. She previously worked as Senior Nurse at the Orange County Correctional
Facility in California and as the Health Services Administrator of the San Bernadino Sheriff’s
Department for fifteen years. Id. at 200:16-201:17. In her capacity as Health Services
Administrator of the San Bernadino Sheriff’s Department, she oversaw the health care
program for four prison facilities with an inmate population of approximately 6,000 and also
supervised the nursing staff. Id. at 201:19-203:7.
After leaving this position, Nurse Wild worked as Deputy Director in charge of
Correctional Health Care for Orange County. Id. at 204:9-25. She is also the former
President of the California Chapter of the American Correctional Health Services
36
Association. Id. at 208:20-209:11. She has received training and is familiar with the
standard of care for nursing in correctional healthcare and has experience treating patients
on psychiatric medications. She is also familiar with the appropriate policies and
procedures in the correctional healthcare setting and withdrawal symptoms and has
received training in these respects. Id. at 211:9-216-13.
Nurse Wild testified, to a reasonable degree of nursing certainty, that the care rendered
by each of the individual PrimeCare Defendants (Paul James, Patricia Bauer, Christina
Rowe, Grace Ramos, and Wendy Johnson) fell below the applicable standard of care for
nurses and healthcare professionals in a correctional setting. Id. at 227:6-12; 258:4-10.
She also testified that all of the individual PrimeCare Defendants were subjectively aware
that delaying or denying Mr. Barbaros his medications could cause him to suffer withdrawal
or some other risk of harm. Id. at 258:25-259:7.
With respect to Nurse James, Nurse Wild opined his handling of Mr. Barbaros’ intake fell
below the applicable standard of care and was neither sufficient nor complete. Id. at
227:15-228:8. She testified the failure to obtain accurate and complete information about a
patient’s psychiatric medications puts a patient at risk of harm. Id. at 228:11-229:9. She
described Nurse James’ multiple misspellings of Mr. Barbaros’ name as “careless and
sloppy.” Id. at 285:1. She also explained that with medications like Paxil there is a risk to
stopping a patient “cold turkey.” Id. at 229:8-17. In her opinion, Nurse James’ failure to
37
properly conduct the intake screening “set the stage, if you will” for the substandard care
received by Mr. Barbaros and the MCCF placed him at risk of harm. Id. at 229:22-230:12.
Nurse Wild referred to the acts and omissions of Nurse Bauer as “well outside the
standard” of care. Id. at 230:16-232:25. She opined that Nurse Bauer’s single attempt to
verify Mr. Barbaros’ medications and her lack of follow up “very much” puts a patient like Mr.
Barbaros at risk of harm. Id. at 231:7-8. As for Nurse Rowe, it was Nurse Wild’s opinion
that her handling of Mr. Barbaros’ sick call was insufficient, inappropriate, and breached the
standard of care and put Mr. Barbaros at risk of harm. Id. at 233:8-240:6.
She also testified that Wendy Johnson, after reviewing Mr. Barbaros’ medical chart and
knowing that he had not received his medications in over 48 hours, “at a minimum, she
should have called him down to see how he’s doing, and then call a provider with that
information.” Id. at 240:7-22. She also said that Wendy Johnson at least should have
communicated this information to Nurse Ramos. Id. at 241:9-13. These acts and
omissions, among others, led Nurse Wild to conclude that Wendy Johnson’s acts and
omissions were a breach of the standard of care and increased the risk of harm to Mr.
Barbaros. Id. at 243:5-6.
Nurse Wild conceded that Nurse Ramos “did a good job on calling CVS and getting the
information that Nurse Bauer couldn’t get with the same information.” Id. at 243:11-16. It
was her opinion, however, that Nurse Ramos should have reviewed Mr. Barbaros’ medical
38
chart and informed the on-call psychiatrist about the length of time Mr. Barbaros had been off
his medications and whether he had any signs or symptoms of withdrawal. Id. at 244:1-11.
Nurse Wild opined that each of the individual PrimeCare Defendants were subjectively
aware that not having medications like Paxil or Prozac could cause withdrawal, and that
denying or delaying Mr. Barbaros access to his psychiatric medication was a delay in the
treatment of his serious medical need. Id. at 244:12-245:2. She also testified that the
symptoms Mr. Barbaros was exhibiting, including headaches, high blood pressure, fear, and
anxiety, suggested withdrawal and that “those are all red flags that something is going on
with our patient.” Id. at 249:8-18. According to Nurse Wild, the combination of Mr. Barbaros’
symptoms and his failure to receive his medications meant that “he should have been put on
some type of observation or some type of watch, where people were monitoring these
symptoms” and that the individual PrimeCare Defendants’ failure to do so breached the
standard of care and placed Mr. Barbaros at an increased risk of harm. Id. at 250:1- 253: 19.
Nurse Wild conceded that the policies and procedures PrimeCare had in place in 2009
met the appropriate standard of care. She testified, however, that this was not the issue. Id.
at 250:8-11. Rather, she opined that the issue was the lack of supervision of the medical
staff and the lack of follow-through to ensure the staff followed the policies and procedures
in place at the facility. Id. at 250:12-19. When asked whether PrimeCare and Wendy
Johnson were properly supervising the staff at the MCCF she said “obviously not,” and
referred to, among other things, Nurse Rowe’s statement that it was “very common” to
39
assess patients without reviewing their medical charts. Id. at 250:20-251:2. Nurse Wild
also testified that in certain respects PrimeCare’s LPNs were acting outside the scope of
their authority. Id. at 235:15-25. According to Nurse Wild, the acts and omission of each of
the PrimeCare Defendants increased the risk of harm to Mr. Barbaros and contributed to his
death. Id. at 251:12-253:12.
2. Dr. Peter Breggin
Plaintiffs also offered Dr. Peter Breggin as an expert. Dr. Breggin was offered, and
accepted, as an expert in psychiatry, psychopharmacology, and Paxil. Sept. 9, 2016 Trial
Tr. at 226:9-10. Dr. Breggin received his undergraduate degree from Harvard College and
his medical degree from Case Western Medical School. After medical school he interned at
SUNY Upstate Medical Center in Syracuse. Id. at 192:4-23. He ran a private psychiatry
practice in Maryland for over forty years. Since 2002, he has been in private practice in
Ithaca, New York. He is licensed to practice in New York State. Id. at 194:4-9.
Dr. Breggin is the author of numerous peer-reviewed articles and books, including books
on the adverse effects of psychiatric drugs on the brain and psychiatric drug withdrawal. Id.
at 195:7-196:10; 198:9-18; 199:6-23; 200:5-23. He has taught graduate level courses in
counseling and psychological services at the University of Maryland, Johns Hopkins, and
SUNY Oswego. Id. at 197:2-13. Dr. Breggin has also testified before Congress about
psychiatric drugs, specifically, SSRIs including Paxil and their effect on military personnel.
Id. at 206:4-207:5.
40
Dr. Breggin opined that Dr. Thomas’ conduct “was not anywhere near the standard of
care, not even close.” Id. at 228:9-17; 277:7-13. He also testified that the treatment
provided by Mr. Buffton fell below the applicable standard of care. Id. at 228:18-23; 246:3250:6; 277:7-13.
It was Dr. Breggin’s opinion that Dr. Thomas’ conduct, specifically, prescribing
psychiatric medications without knowing any information about the patient, fell below the
standard of care. Id. at 234:5-236:5; 241:3-242:23. He referred to his acts and omissions
as “not even practicing medicine.” According to Dr. Breggin, “you can’t prescribe that way.
These are very powerful drugs, that have important adverse effects, which, at times, have a
toxic effect, and they have very important withdrawal effects.” Id. at 236:10-14. Dr. Breggin
testified, consistent with Dr. Thomas’ own testimony, that when a doctor starts a patient on
Paxil they need to be aware about the risk of suicide and that Paxil is the most likely SSRI
to cause a serious adverse reaction. Id. at 236:10-25. According to Dr. Breggin, Dr.
Thomas should have placed Mr. Barbaros on monitoring, should have started him on a
lower dose of Paxil, and at least explained to him the adverse side effects of Paxil. Id. at
242:14-23; 244:5. Had Dr. Thomas acted differently, he could have prevented Mr.
Barbaros’ suicide. Id. at 274:13-24. The same holds true for Dr. Breggin’s opinion of
William Buffton: that is, had Mr. Buffton behaved differently, it would have been less likely
that Mr. Barbaros would have committed suicide. Id. at 274:25-275:13.
41
Dr. Breggin also testified about the care Mr. Barbaros received from the medical staff at
the MCCF. He opined that “the care and treatment he received, starting at the very
beginning, contributed to his suicide.” Id. at 233:21-234:4; 277:14-19. It was his opinion, to
a reasonable degree of medical certainty, that Mr. Barbaros’ suicide was preventable and
that the first time Mr. Barbaros’ death could have been prevented is the night he came into
the MCCF. Id. at 268:25-271:9. He testified that had Mr. Barbaros promptly received his
medications on either March 18 or 19, this could have prevented, and at least would have
softened, Mr. Barbaros’ withdrawal. Therefore, his suicide could have been prevented. Id.
at 271:17-22; 272:25-274:14.
Dr. Breggin testified that when a patient like Mr. Barbaros is prescribed medications like
Paxil, the need to continue that medication or monitor the patient is a serious medical need.
Id. at 244:23-245:19. It was his opinion that Dr. Thomas knew there was a risk of suicide
when prescribing Mr. Barbaros the Paxil, but nevertheless failed to take any action. Id. at
245:20-246:2. Specifically, Dr. Breggin testified that the available literature on Paxil,
including warnings from the manufacturer, show that Dr. Thomas should have been aware
that restarting Mr. Barbaros on Paxil without monitoring could cause suicide. Sept. 12, 2016
Trial Tr. at 145:23-147:9. He also described several studies linking Paxil to “bizarre”
suicides like that of Mr. Barbaros.
Dr. Breggin testified, to a reasonable degree of medical certainty, that Mr. Barbaros was
suffering from withdrawal in the days before he first received the Paxil prescribed by Dr.
42
Thomas. Id. at 256:7-259:24. It was his opinion that restarting Mr. Barbaros on 30
milligrams of Paxil, after he been without the drug for at least several days and was
exhibiting symptoms of withdrawal, was inappropriate and contributed to his death. Id. at
260:24-261:12; 264:7-268:24; 271:23-24; Sept. 12, 2016 Trial Tr. at 147:10-152:22.
Regardless of whether the Paxil was at a high enough dose to cause him to commit suicide,
Dr. Breggin opined that, at a minimum, Mr. Barbaros should have been monitored due to
the way Paxil is prescribed, his symptoms, and the nature and circumstances of his first
incarceration. Id. at 153:4-14. He also testified that had Mr. Barbaros received his
Trazodone as scheduled, or been monitored on the night of March 2, it could have
prevented him from committing suicide. Id. at 152:23-153:3.
3.
Dr. Lorne Sheren
Dr. Lorne Sheren was offered, and accepted, as Plaintiffs’ expert in anesthesiology and
pain and suffering. Dr. Sheren is an anesthesiologist and currently the Director of Jefferson
Medical Center in Charlestown, West Virginia. He graduated from State University of New
York Downstate Medical Center and completed his anesthesiology residency at Columbia
Presbyterian Hospital in New York City. He is Board certified in internal medicine and
anesthesiology and licensed to practice in New York, New Jersey, and West Virginia. Sept.
9, 2016 Trial Tr. at 160:1-172:4.
Dr. Sheren testified, to a reasonable degree of medical certainty, about the conscious
pain and suffering Mr. Barbaros would have experienced. Specifically, Dr. Sheren
43
described death by suffocation in a manner like Mr. Barbaros experienced as something
“extremely unpleasant,” “painful,” “essentially the equivalent of torture,” and “undoubtedly . .
. took some amount of time.” Id. at 177:19-182:4. It was his opinion that Mr. Barbaros
would have been conscious for approximately five to seven minutes before his death.
However, he acknowledged it could have been slightly less or more depending on whether
Mr. Barbaros took a breath before ingesting the object and how long it took for the object to
completely obstruct his airway. Id. at 184:2-15.
4.
David Hopkins
Plaintiffs also presented the testimony of David Hopkins, an actuarial economic
consultant. Mr. Hopkins received his Bachelor’s Degree from the Wharton School of
Business at the University of Pennsylvania and a Master’s Degree in actuarial science from
Temple University. Sept. 12, 2016 Trial Tr. at 200:5-203:6.
Mr. Hopkins provided an expert report calculating what he described as “an appropriate
measure of economic loss for an individual in these kinds of circumstances” and testified
that “the largest part of a person’s economic value is something that we call their earnings
capacity.” Id. at 203:15-18. Earnings capacity, Mr. Hopkins testified, “refers to the amount
of earnings that a person could expect to receive, given their background, prior work history,
skills, even given their interests, what it is they might choose to do, but it’s a measure of
their economic value.” Id. at 203:19-23. Mr. Hopkins testified that, depending on a number
44
of factors, Mr. Barbaros’ lost earnings capacity would in the range of $540,486 to
$810,735.24 Id. at 215:19-217:19.
5.
Terry Fillman
The PrimeCare Defendants offered, and the Court admitted, Terry Fillman as an expert
in correctional nursing. Nurse Fillman is a RN and the Health Services Administrator for the
San Bernadino County Sherriff’s Department. Kathy Wild, Plaintiffs’ correctional nursing
expert, served as his boss for 15 years and also hired him for his current job at the San
Bernadino County Sheriff’s Department. Nurse Fillman’s responsibilities include
coordinating the medical and dental care for approximately 6000 inmates and providing
daily health care. His position as Health Services Administrator is defined by the NCCHC
as the “responsible health authority” with responsibility for staffing, teaching, updating
policies and procedures on an annual basis, and providing medical, dental, and mental
health care. As the Health Services Administrator, he is also responsible for reviewing the
CQI process in order to utilize data to evaluate policies and procedures for improvement.
He is an educator for the NCCHC, the organization that sets accreditation standards for
correctional facilities. Sept. 12, 2016 Trial Tr. at 227:7-241:4.
Plaintiffs also presented testimony from Plaintiff Peter Ponzini, Mr. Barbaros’ former lawyer,
accountant, and the Co-Administrator of his estate. Sept. 12, 2016 Trial Tr. at 157:7-192:18. In that
capacity, Mr. Ponzini prepared Mr. Barbaros’ tax returns. Id. at 159:15-19. Mr. Ponzini testified that the
Barbaros family earned $43,819 in 2005, id. at 169:11-13, $50,660 in 2006, id. at 170:18-29, $79,196 in
2007, id. at 171:7-8, and $44,992 in 2008, id. at 172:2-9.
24
45
It was Nurse Fillman’s opinion that the PrimeCare Defendants all met the appropriate
standard of care and acted in accordance with what a reasonable nurse and prison
healthcare provider would do under the circumstances. Id. at 245:6-15. He testified the
conduct of Nurse James, Nurse Ramos, Nurse Johnson, Nurse Bauer, Wendy Johnson,
and Nurse Rowe all met the appropriate standard of care. Id. at 277:9-18. He also testified
that PrimeCare itself met the appropriate standard of care for the provision of medical care
in a prison environment (including its policies and procedures for access to care, suicide
screening, and verification of medications). Id. at 276:24-277:8. He noted that PrimeCare’s
access to mental health care policies and procedures satisfied the standard of care because
Mr. Barbaros was referred to a mental health worker within 3-4 days of admission and had
non-emergent issues. Id. at 273:1-274:4. He testified that although a LPN was supervising
the nursing staff at the MCCF, the nursing staff was performing functions he would expect
them to perform and that were common in a correctional environment. Id. at 265:16-24.
On cross-examination, Nurse Fillman acknowledged that NCCHC standards place
responsibility on a Health Services Administrator “to ensure that the staff complies with
policies and procedures.” Id. at 279:19-22. He also acknowledged that the purpose of
establishing policies and procedures, and following those policies and procedures, is to
ensure that patients are treated properly and to keep them as safe as possible. Id. at
279:23-280:13. He conceded that when a nurse does not follow policies and procedures
46
they can potentially be putting their patients at risk.25 Id. At trial, Plaintiffs’ counsel also
read a portion of Mr. Fillman’s deposition wherein he admitted that if a nurse does not
accurately complete intake documents, it can impact the information available to the health
services staff. Specifically, he acknowledged that if something is not properly documented,
a nurse could miss a symptom that he or she otherwise would have recognized. Id. at
286:20-287:21.
Nurse Fillman acknowledged that PrimeCare’s policies and procedures at the MCCF
were based on NCCHC standards (which set the minimum acceptable standard of care in a
correctional environment). Id. at 288:4-9. He conceded that Nurse James violated
PrimeCare’s policies and procedures, and acknowledged that if a patient is taking
psychiatric medications it is important to know how long he or she has been on or off the
medications. He agreed that Nurse James’ intake form was missing important information.
Id. at 289:20-292:1.
Nurse Fillman conceded that Nurse Rowe’s conduct of performing an assessment on
Mr. Barbaros without the benefit of his medical chart violated PrimeCare’s policies and
procedures. He noted, however, that it was the responsibility of the night nurse (i.e., Paul
James) to collect this information and pass on the sick call slip to ensure the nursing staff
has all the available information. Id. at 297:15-299:6. He testified that if Nurse Rowe’s
statement that it was “very common” to assess patients without the benefit of their medical
Nurse Fillman noted that he was not offering any opinions, nor was he disputing Nurse Wild’s
opinions, on the acts and omissions of Grace Ramos and Wendy Johnson. Sept. 12, 2016 Trial Tr. at
282:8-284:14.
25
47
chart was true, it would be a violation of PrimeCare’s policies and procedures, but stated
that “whoever is gathering these medical records and not providing the chart they’re
violating policies and procedures.” Id. at 299:23-301:12.
Nurse Fillman acknowledged that PrimeCare’s policies and procedures in place at the
time were “the minimum standard of care, nothing beyond” and conceded that the nursing
staff failed to comply with numerous policies and procedures on multiple occasions. Id. at
301:13-17. It was his opinion that it was a “combination” of Mr. Barbaros’ failure to give
accurate and complete information to Nurse James and Mr. Barbaros’ failure to provide any
information about the dosages which led to the delay in obtaining his medications. Id. at
304:19-305:25. When asked if he was aware that Nurse James testified that he never
asked for dosage information because PrimeCare’s intake form at the MCCF does not ask
for it, Nurse Fillman testified “no.” Id. at 305:22-306:1.
Mr. Fillman conceded that the nursing staff’s failure to follow medical orders and take
Mr. Barbaros’ blood pressure was “not acceptable” because it is incumbent upon the
nursing staff to follow medical orders because the reason for the medical order is to protect
the patient and ensure he or she receives the care he or she needs. Id. at 306:2-307:23.
He would not, however, concede that this breaches the standard of care. When asked if the
failure to follow medical orders puts a patient at increased risk of harm he testified “not
necessarily.” Id. at 307:2-308:2. However, Nurse Fillman acknowledged that if a
medication like Trazodone is prescribed to an inmate, but not given to him, it is not
48
acceptable nursing care. Id at 308:3-13. Nurse Fillman also testified that it is incumbent
upon a nurse to make sure he or she is familiar with, and able to provide, all relevant
information to a physician when he or she calls the physician after verification of a patient’s
medication. Id. at 312:5-24. Finally, despite acknowledging the repeated violations of
PrimeCare’s policies and procedures, which are based on the minimal acceptable standard
of care, Nurse Fillman testified to a reasonable degree of nursing certainty that all the
PrimeCare Defendants acted within the applicable standard of care. Id. at 313:8-17.
6. Dr. Lawrence Mendel
The PrimeCare Defendants also called Dr. Lawrence Mendel as an expert in the field of
correctional medicine. Sept. 13, 2016 Trial Tr. at 28:5-35:21. Dr. Mendel is the Medical
Director of the Leavenworth Detention Center. Id. He previously worked as an accreditor
surveyor for the NCCHC and is one of twenty fellows at the Society of Correctional
Physicians. Id. Dr. Mendel has previously been retained by PrimeCare and testified on its
behalf “probably” more than 10 times, “possibly more” than 20 times, but “probably not”
more than 30. Id. at 35:25-40:25.
Dr. Mendel opined, to a reasonable degree of medical certainty, that the access to care
provided by the PrimeCare Defendants to Mr. Barbaros was appropriate and met the
standard of care. Id. at 44:6-9. He also testified that PrimeCare’s policies and procedures
for the verification of medications met the standard of care, id. at 48:2-11, and noted that he
was not aware of any national standard that requires an inmate who is potentially going
49
through withdrawal/SSRI discontinuation syndrome to be monitored, id. at 55:10-14. It was
his opinion that none of the PrimeCare Defendants breached the duty of care and that their
acts and omissions did not increase the risk of harm to Mr. Barbaros or contribute to his
suicide. Id. at 41:2-48:11.
On cross-examination, Dr. Mendel conceded that when diagnosing a patient a doctor
has an obligation to obtain sufficient information in order to decide what treatment is
appropriate for a patient. Id. at 57:1-59:1. A portion of Dr. Mendel’s deposition was also
read wherein he testified that the responsibilities of a doctor conducting an examination and
prescribing medication over the telephone are no different from a doctor actually sitting in
the room with the patient. Id. at 60:15-63:13. He acknowledged that in the practice of
medicine in a correctional setting it is generally recognized that if something is not written
down, then it did not happen. Id. at 62:14-20.
Dr. Mendel conceded that failure to complete an intake chart in its entirety could put a
patient at risk of harm, and acknowledged that one factor to consider in determining whether
a prison healthcare provider has adequate policies and procedures in place is whether there
is a failure to follow those policies and procedures. Id. at 74:1-75:1. He acknowledged that
PrimeCare’s policies and procedures were based on the minimum standard of care set forth
in the NCCHC. He also testified that if a patient comes into the facility on psychiatric
medications, and the medications cannot be verified, a nurse should call the on-call
provider. Id. at 83:23-83:5. He did not, however, consider any of the individual PrimeCare
50
Defendants’ failure to comply with the policies and procedures in place as breaching the
standard of care. Finally, when asked whether LPNs should be supervising LPNs he
testified that “ideally” a LPN should not be supervising other LPNs. Id. at 91:1-14.
7. Dr. Lawrence Guzzardi
Dr. Lawrence Guzzardi also testified on behalf of the PrimeCare Defendants as an
expert in medical toxicology. Dr. Guzzardi graduated from Boston College with a degree in
chemistry and obtained his medical degree from Jefferson Medical College in Philadelphia.
Id. at 228:24-231:14. He completed his residency at the University of Kentucky, where he
taught and obtained a Master’s Degree in toxicology. Id. He is the former director of the
emergency department at York Hospital in York, Pennsylvania. Id.
Dr. Guzzardi testified that the level of Paxil in Mr. Barbaros’ blood following his death
(130 nanograms) was within the therapeutic range. Therefore, there was Paxil in Mr.
Barbaros’ system that was not related to the Paxil he received at the MCCF. He opined
that it would be impossible to have this amount of Paxil in your bloodstream from a single 30
mg dose. Id. at 242:1-17. Based on his review of the medical records he testified that “[i]t
would be highly, highly, highly unlikely that [Mr. Barbaros] would have gone through SSRI
discontinuation syndrome, given the amount of Paxil that was present in his blood at the
time of autopsy.” Id. at 243:17-24. According to Dr. Guzzardi, Mr. Barbaros’ blood work
also established that he did not have a toxic level of Paxil in his system at the time of his
death. Id. at 244:22-25.
51
On cross-examination, Dr. Guzzardi acknowledged that Dr. Thomas’ psychiatry expert,
Dr. Susan Rushing, authored a report stating that with a single 30 mg dose of Paxil it was
possible to have a up to 147 nanograms in your bloodstream, depending on a person’s
metabolism. Id. at 245:24-248:17. He, however, strongly disagreed with her opinions and
conclusions. Id. Dr. Guzzardi also made a series of errors in his report and testimony
regarding the factual circumstances of this case. Id. at 251:1-255:18.
8. Dr. Cheryl Wills
The PrimeCare Defendants also presented testimony from Dr. Cheryl Wills, who was
offered, and accepted, as an expert in correctional psychiatry. Dr. Wills is the head of Child
and Adolescent Forensic Psychiatry at University Hospital Case Medical Center in
Cleveland, Ohio. She obtained her undergraduate degree at Barnard College, Columbia
University, and her medical degree from State University of New York in Syracuse. Id. She
completed her residency in general and child psychiatry at the University of Pittsburgh and
then completed a fellowship at Case Western Reserve University. She is Board certified in
General Psychiatry, Child and Adolescent Psychiatry, and has a subspecialty certification in
Forensic Psychiatry. Dr. Wills is licensed to practice in Pennsylvania, Ohio, Louisiana, and
New York. She has worked in a correctional facility providing care to patients, and was a
former monitor for the United States Department of Justice. In that capacity, she observed
correctional facilities and assessed conditions of confinement (including access to mental
52
healthcare) to determine whether a facility’s policies and procedures meet a minimally
acceptable standard of care. Sept. 14, 2016 Trial Tr. at 3:21- 15:14.
Dr. Wills testified, to a reasonable degree of medical certainty, that PrimeCare and Mr.
Buffton’s treatment of Mr. Barbaros met the appropriate standard of care. Id. at 16:5-18;
29:10-17. She also opined that PrimeCare’s policies and procedures at the MCCF met the
appropriate standard of care, highlighting the MCCF’s NCCHC certification. Id. at 16:11-15.
She testified that the policies and procedures in place at the MCCF were “above and
beyond” what “we” ideally would like to see in all jails. Id. at 19:6-10. As for Mr. Buffton,
she testified that his assessment notes were appropriate and suggested that Mr. Barbaros
did not need to be monitored. Specifically, she highlighted that, according to Mr. Buffton’s
note, Mr. Barbaros became more animated as time went by which “shows that he has the
capacity to calm down” and also suggests that Mr. Buffton “made a good effort to engage
him” and that Mr. Barbaros was in a better emotional state than when he and Mr. Buffton
initially met. Id. at 27:9-15.
It was Dr. Wills’ opinion that Mr. Buffton had no reason to suspect Mr. Barbaros was
suicidal at the time of the assessment. She noted that Mr. Barbaros’ behavior had changed
during the assessment, was future-oriented, and that he was planning to see a psychiatrist
the following day. Id. at 29:24-9. She did not believe simply because an inmate who is
incarcerated for the first time has an increased risk of suicide that every first time inmate
should be placed on monitoring or suicide watch. Id. at 24:15-25. It was Dr. Wills’ opinion
53
that Mr. Barbaros committed suicide due to a “number of things,” id. at 33:1-11, including
among other things that “he was incarcerated for the first time in his life . . . the number of
charges kept increasing, [and] they were published in the newspaper, which had
implications for his business,” id. at 33:7-34:9. Therefore it was her opinion, to a reasonable
degree of medical certainty, that nothing about the care provided to Mr. Barbaros by
PrimeCare and Mr. Buffton caused him to commit suicide. Id. at 34:10-19.
On cross-examination, Dr. Wills acknowledged that an inmate who is incarcerated for
the first time is at an increased risk of suicide. Id. at 37:23-25. She also agreed that as part
of an initial assessment it is important to find out when a patient last took his or her
medication. She testified that the nursing staff had an obligation to investigate when Mr.
Barbaros last took his medication. Id. at 38:5-39:22. She further acknowledged that
withdrawal is a potential side effect if a person abruptly stops taking medications like Paxil,
that suicidal ideations have been associated with individuals who abruptly stop taking SSRIs
like Paxil, and that this is something the medical staff should be aware of. Id. at 40:1342:19. When asked if Mr. Barbaros’ symptoms, including headaches, hypertension,
increased pulse, abdominal pain, increased anxiety, and depression could be signs that he
was suffering from withdrawal, Dr. Wills testified “That’s one possibility, yes.” Id. at 43:5-11.
She conceded that the nursing staff’s failure to check Mr. Barbaros’ blood pressure was
unfortunate and “pretty bad” because without this information they could not assess his
medical condition. Id. at 43:12-25. For example, without this information they could not
54
know if his blood pressure continued to increase, decrease, or stay the same, which could
have alerted the medical staff to a serious medical issue. Id. at 44:5-11.
Dr. Wills acknowledged that Mr. Buffton did not document that he conducted a suicide
assessment of Mr. Barbaros and did not ask Mr. Barbaros if he was experiencing any
physical symptoms since arriving at the MCCF. Id. at 45:3-46:3. She acknowledged,
consistent with Mr. Buffton testimony, that if Mr. Buffton had asked about Mr. Barbaros’
physical symptoms he should have written it down in his note. Id. at 46:3-20. When asked
whether, logically, Mr. Buffton’s failure to document that he conducted a suicide assessment
meant that he failed to conduct a suicide assessment of Mr. Barbaros, Dr. Wills was unsure.
Id. at 47:19-48:3. She testified that Mr. Buffton’s failure to document “any information about
lethality, whether he was having thoughts of harming himself or others, it was an oversight
on Mr. Buffton’s part.” Id. at 28:5-11. She went on to testify that “a suicide assessment is a
requirement for a social worker, but physical symptoms is not . . . so if he went above and
beyond, that’s great, but that is not what he’s required to do.” Id. at 48:4-13. She conceded
that, as a psychologist, he would be aware that physical symptoms can impact the mental
state. Id. at 48:14-16. When asked whether it would be important to know that a first time
detainee who is being assessed for the first time by a mental healthcare worker is
experiencing physical symptoms or other aggravating factors she testified that “it would be
helpful to know, yes.” Id. at 48:14.
55
Throughout her testimony Dr. Wills repeatedly referred to Mr. Buffton as a social worker,
but conceded that at the MCCF he was acting as a Master’s level psychologist and, as
such, NCCHC standards required him to be supervised by a qualified mental health
professional. Id. at 49:10-25. It was her belief that, although Mr. Buffton was not a licensed
psychologist, because he had a master’s degree he was permitted to “work for someone
else, under their supervision.” Id. at 17:6-19:2. She later acknowledged that the person
supervising Mr. Buffton was not a psychologist, but also a social worker like Mr. Buffton. Id.
at 50:12-16. Dr. Wills testified that although PrimeCare did not provide Mr. Buffton with any
training, including training on suicide prevention, she was “not sure that is required” under
the circumstances. Id. at 55:18-22. She acknowledged that, in her opinion, PrimeCare’s
actions with respect to Mr. Buffton did not cause Mr. Barbaros’ suicide, was “more likely
than not” and “roughly 51%.” Id. at 59:23-60:4. In her expert report, part of which was read
to the jury, she wrote: “Dr. Breggin’s past work on side effects to Selective Serotonin
Reuptake Inhibitor SSRI medications, which are used to treat depression and anxiety, and
what pharmaceutical companies have disclosed has had important implications for the
medical field.” Id. at 60:20-61:8.
9. Dr. Susan Rushing
Dr. Thomas presented testimony from one expert, Dr. Susan Rushing, who was offered,
and accepted, as an expert in psychiatry. Sept. 13, 2016 Trial Tr. at 133:14-15. Dr.
Rushing is a psychiatrist in private practice in Haverford, Pennsylvania and holds a clinical
56
teaching appointment at the University of Pennsylvania. She teaches residents and medical
students in forensic psychiatry. Id. at 112:2-9. She received her undergraduate degree in
neuroscience from the Massachusetts Institute of Technology, her medical degree from the
Yale School of Medicine and her Juris Doctorate from Stanford Law School. Id. She
completed an internship in pediatrics at the Children’s National Hospital in Washington D.C.
and her psychiatry residency at the University of Pennsylvania. Id. She, like Dr. Breggin,
has never worked as a psychiatrist in a correctional facility. Id. at 124:20-127:1.
Dr. Rushing testified that Mr. Barbaros was not suffering from SSRI discontinuation
syndrome or withdrawal. Id. at 149:18:24. She opined that Dr. Thomas’ conduct met the
standard of care and was appropriate. According to Dr. Rushing, the standard of care
“absolutely” does “not” require Dr. Thomas to speak with Mr. Barbaros prior to prescribing
him medication. Id. at 151:19-152:11. She also testified that the standard of care did not
require Dr. Thomas to review Mr. Barbaros’ medical records prior to prescribing him
psychiatric medication. Id. It was her opinion that the standard of care also did not require
Dr. Thomas to place Mr. Barbaros on monitoring. Id. at 152:12-17. Nor did Dr. Rushing
believe the standard of care required Dr. Thomas to restart Mr. Barbaros on a lower dosage
of Paxil. Id. at 153:9-154:4. It was her opinion, to a reasonable degree of medical certainty,
that Dr. Thomas’ acts and omissions did not cause Mr. Barbaros to commit suicide. Id. at
160:24-162:24. Rather, it was her opinion that Mr. Barbaros committed suicide due to a
57
certain level of distress over his incarceration, including, among other things, recently
learning that his charges and bail had been increased. Id. at 162:7-21.
On cross-examination, Dr. Rushing acknowledged that if a physician is going to
prescribe a patient Paxil, then he or she should be familiar with the potential side effects of
the medication. She conceded that some studies suggest that Paxil causes significantly
more discontinuation symptoms than other SSRI medications. Id. at 177:25-180:23. She
also acknowledged that the studies she relied on which formed the basis of her opinions
(which found an increase in suicidal ideations in children and adolescents on Paxil, but not
adults) were conducted in settings where the individuals being studied were under close
observation and monitoring, which she acknowledged is significant when it comes to suicide
and suicidal ideation. Id. at 194:10-195:1. She testified that it is important for psychiatrists
to diagnose a deteriorating mental condition as early as possible because early recognition
results in an increased likelihood of avoiding injury to a patient. She conceded that one way
for a psychiatrist to accomplish this goal is by having a complete picture of his or her patient
and reviewing the patient’s medical records. Id. at 198:22-199:17.
Dr. Rushing also testified about the distinctions between LPNs and RNs, in terms of both
training and education. She acknowledged that LPNs “certainly have less experience” than
other medical professionals. Id. at 202:15-204:6. Regardless, she testified that it is the
responsibility of the doctor to make sure he has all available information about a patient so
he can make an informed medical decision when prescribing medications for a patient. Id.
58
at 204:11-19. Dr. Rushing acknowledged that in her clinical practice she asks patients how
long they have been on or off a particular medication when prescribing. Id. at 204:20205:25. When asked whether Mr. Barbaros would have been able to commit suicide had he
been monitored, she did not answer the question. Instead, Dr. Rushing testified that such a
practice would have been outside the standard of care. Id. at 219:5-220:19. Consistent
with the testimony of the other expert witnesses, she testified that the nature of Mr.
Barbaros’ suicide was “unusual,” “incredibly rare,” and “something I have not previously
seen.” Id. at 222:3-223:8.
III.
STANDARD OF REVIEW
A. Motion For Judgment as a Matter Of Law
Federal Rule of Civil Procedure 50 governs motions for judgment as a matter of law.
The rule provides, in relevant part:
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial
and the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on the issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a
claim or defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any
time before the case is submitted to the jury. The motion must specify the
judgment sought and the law and facts that entitle the movant to the
judgment.
59
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court
does not grant a motion for judgment as a matter of law made under Rule 50(a),
the court is considered to have submitted the action to the jury subject to the
court later deciding the legal questions raised by the motion. No later than 28
days after the entry of judgment—or if the motion addresses a jury issue not
decided by a verdict, no later than 28 days after the jury was discharged—the
movant may file a renewed motion for judgment as a matter of law and may
include an alternative or joint request for a new trial under Rule 59. In ruling on
the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
(c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.
(1) In general. If the Court grants a renewed motion for judgment as a matter
of law, it must also conditionally rule on any motion for a new trial by
determining whether a new trial should be granted if the judgment is later
vacated or reversed. The court must state the grounds for conditionally
granting or denying the motion for a new trial.
(2) Effect of Conditional Ruling. Conditionally granting the motion for a new
trial does not affect the judgment’s finality; if the judgment is later
reversed, the new trial must proceed unless the appellate court orders
otherwise. If the motion for a new trial is conditionally denied, the
appellee may assert error in that denial; if the judgment is reversed, the
case must proceed as the appellate court orders.
Fed. R. Civ. P. 50(a)-(c).
“Entry of judgment as a matter of law is a sparingly invoked remedy.” Marra v.
Philadelphia Housing Auth., 497 F.3d 286, 300 (3d Cir. 2007) (internal citation and quotation
marks omitted). Because the jury returned a verdict in favor of the Plaintiffs, the Court
60
“must examine the record in a light most favorable to the plaintiff, giving her the benefit of all
reasonable inferences, even though contrary inferences might reasonably be drawn.” In re
Lemington Home for the Aged, 777 F.3d 620, 626 (3d Cir. 2015) (internal citation and
quotation marks omitted).
The Court can only address issues raised in a Rule 50(b) motion which were first
properly raised in a Rule 50(a) Motion. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d
1153, 1172 (3d Cir. 1993) (“In order preserve an issue for judgment pursuant to Rule 50(b),
the moving party must timely move for judgment as a matter of law . . . pursuant to Rule
50(a), and specify the grounds for that motion.”). Where issues raised in a Rule 50(b)
motion have been properly preserved, the Court may grant the motion “only if, viewing the
evidence in the light most favorable to the nonmovant and giving it the advantage of every
fair and reasonable inference, there is insufficient evidence from which a jury reasonably
could find liability.” Id. at 1166. The Court “may not weigh the evidence, determine the
credibility of witnesses, or substitute its version of facts for the jury’s version.” Id. Judgment
as of matter of law following return of a jury verdict is only appropriate when “if, as a matter
of law, the record is critically deficient of that minimum quantity of evidence from which a
jury might reasonably afford relief.” Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d
243, 249 (3d Cir. 2001) (internal citation and quotation marks omitted). “The question is not
whether there is literally no evidence supporting the party against whom the motion is
directed but whether there is evidence from which the jury could properly find a verdict for
61
that party.” Jaasma v. Shell Oil Co., 412 F.3d 501, 503 (3d Cir. 2005) (internal citation and
quotation marks omitted).
B. Motion For a New Trial; Remittitur
Federal Rule of Civil Procedure 59 governs motions for a new trial. The Rule provides,
in relevant part, “[t]he court may, on motion, grant a new trial on all or some of the issues—
and to any party. . . after a jury trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court. . . .” Fed. R. Civ. P. 59(a)(1)(A). The Court may
grant a new trial “purely on a question of law” or to correct a previous ruling “on a matter
that initially rested within the discretion of the court, e.g. evidentiary rulings . . . or
prejudicial statements made by counsel.” Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir.
1993) (internal citation and quotation marks omitted). The Court may also grant a new trial
where it “believes the jury’s decision is against the weight of the evidence.” Id. at 1290.
However, a Court “should do so only when ‘the great weight of the evidence cuts against
the verdict and . . . [ ] a miscarriage of justice would result if the verdict were to stand.’”
Leonard v. Stemtech Int’l Inc., 834 F.3d 376, 386 (3d Cir. 2016) (quoting Springer v. Henry,
435 F.3d 268, 274 (3d Cir. 2006)). “A district court’s power to grant a new trial is limited to
ensure that it does not substitute its judgment of the facts and the credibility of the
witnesses for that of the jury.” Id. (internal citation and quotation marks omitted).
“The applicable standard for ordering a new trial where the verdict was against the
weight of the evidence differs from the standard for granting a motion” for judgment as a
62
matter of law. Agere Sys., Inc. v. Atmel Corp., No. Civ. A 02-CV-864, 2005 WL 2994702, at
*15 (E.D. Pa. Aug. 17, 2005). “A court should only order a new trial when, in its opinion, the
verdict is contrary to the ‘great weight of the evidence.’” Id. (quoting Roebuck v. Drexel
Univ., 852 F.2d 715, 736 (3d Cir. 1988)). In determining whether a new trial should be
granted “a court is permitted to consider the credibility of the witnesses and to weigh the
evidence.” Id. Although “a party who fails to move for judgment as a matter of law under
Rule 50(a) at the close of all evidence wholly waives the right to mount any post-trial attack
on sufficiency of evidence grounds. . . [w]here a challenge is made to the weight of the
evidence, as opposed to its sufficiency, a court may exercise its discretion and grant a new
trial regardless.” Id. at *16 (citing Greenleaf v. Garlock, 174 F.3d 352, 365 (3d Cir. 1999)).
“A court may grant a new trial or a remittitur ‘only if the verdict is so grossly excessive
as to shock the judicial conscience.’”26 Wright v. Cacciutti, No. 3:12-CV-1682, 2015 WL
3654553, at *20 (M.D. Pa. June 11, 2015) (quoting Williams v. Martin Marietta Alumina, Inc.,
817 F.2d 1030, 1038 (3d Cir. 1987)). “The fact that a court finds an award to be extremely
generous or would have found the damages to be considerably less is not sufficient to
shock the conscience.” Id. (internal citation and quotation marks omitted). Both the Third
Circuit and the Pennsylvania Supreme Court have set a high bar for determining what
Federal Rule of Civil Procedure 59(e) permits a Court to alter or amend a judgment. Generally, a
“motion to alter or amend judgment must rely on one of three major grounds: (1) an intervening change in
controlling law; (2) the availability of new evidence [not available previously]; [or] (3) the need to correct
clear error [of law] or prevent manifest injustice.” North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d
1194, 1218 (3d Cir. 1995) (internal citation and quotation marks omitted).
26
63
“shocks the judicial conscience.” See, e.g., Motter v. Everest & Jennings, Inc. 883 F.2d
1223, 1230 (3d Cir. 1989) (in order to disturb a jury verdict “the damages assessed by the
jury must be so unreasonable as to offend the conscience of the Court”); Haines v. Raven
Arms, 536 Pa. 452, 455, 640 A.2d 367 (1994) (“Judicial reduction of a jury award is
appropriate only when the award is plainly excessive and exorbitant. The question is
whether the award of damages falls within the uncertain limits of fair and reasonable
compensation or whether the verdict so shocks the sense of justice as to suggest the jury
was influenced by partiality, prejudice, mistake, or corruption.”) (citations omitted). If a
Court reduces a jury award because it believes the amount of the award is inconsistent with
the evidence, “the court must offer a new trial as an alternative to a reduction in the award in
order to avoid depriving the plaintiff of his/her Seventh Amendment right to a jury trial.”
Cortez v. Trans Union, LLC, 617 F.3d 688, 716 (3d Cir. 2010).
IV.
MOTION FOR JUDGMENT AS A MATTER OF LAW
A.
42 U.S.C § 1983 – Adequate Medical Care
Plaintiffs pursued claims under 42 U.S.C § 1983, alleging that each of the individual
PrimeCare Defendants and Dr. Thomas violated Mr. Barbaros’ Fourteenth Amendment right
to adequate medical care by acting, or failing to act, with deliberate indifference to his
serious medical needs.27 The jury found each of these Defendants, with the exception of
The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiffs’ claims arose under
federal law. The Court exercised supplemental jurisdiction over Plaintiffs’ state law claims pursuant to 28
U.S.C. § 1367(a).
27
64
Wendy Johnson, liable under section 1983. Plaintiffs also alleged, and the jury found, that
PrimeCare had a policy, practice, or custom of deliberate indifference to the serious medical
needs of inmates at the MCCF, and that this policy, practice, or custom caused Mr.
Barbaros' suicide. The jury awarded Plaintiffs $1,057,334 in compensatory damages.
1.
The Individual PrimeCare Defendants
The individual PrimeCare Defendants each timely moved for judgment as a matter of
law pursuant to Federal Rule of Civil Procedure 50(a) at the close of Plaintiffs’ case-in-chief.
Sept. 13, 2016 Trial Tr. at 9:15-14:3. The Court deferred ruling on the motions. At the close
of the evidence the individual PrimeCare Defendants renewed their motions. Sept. 14,
2016 Trial Tr. at 62:14-17. The Court again deferred ruling on the motions and submitted
the case to the jury.28 The individual PrimeCare Defendants timely renewed their motions
for judgment as matter of law pursuant to Federal Rule of Civil Procedure 50(b). (Doc. 354).
Plaintiffs’ theory of deliberate indifference, as reflected in the jury charge, was that each
of the individual PrimeCare Defendants “ignored a diagnosed medical condition that
required Mr. Barbaros to take the medication Paxil, ignored and/or disregarded obvious
symptoms that showed Mr. Barbaros was suffering from medication withdrawal, failed to
ensure proper dosing when restarting Mr. Barbaros’ medication, and failed to monitor Mr.
Barbaros.” Jury Charge § 13(B). The jury was instructed in accordance with the Third
“If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the
court is considered to have submitted the action to the jury subject to the court later deciding the legal
questions raised by the motion.” Fed. R. Civ. P. 50(b).
28
65
Circuit’s Model Jury Instruction § 4.11.1 (Denial of Adequate Medical Care), with slight
modifications to indicate that because Mr. Barbaros was a pretrial detainee, Plaintiffs’
claimed deprivation of his constitutional right to adequate medical care arose under the
Fourteenth Amendment, not the Eighth Amendment.29 After deliberating for a period of
time, the jury submitted a written question to the Court: “Could you provide us with a better
definition of deliberate indifference?” After discussing the appropriate response with
counsel, the Court referred the jury back to the instructions. The jury later returned its
verdict.
Plaintiffs’ claims arise under 42 U.S.C. § 1983. Section 1983 is not an independent
source of substantive rights, but merely “provides a remedy for deprivations of rights
established elsewhere in the Constitution or federal laws.” Kopec v. Tate, 361 F.3d 772,
The jury was not instructed in accordance with the Third Circuit’s Model Jury Instruction § 4.11.2
(Failure to Protect from Suicidal Action), and no party has raised any claim of error in this respect. Before
trial, Dr. Thomas and the PrimeCare Defendants, but not Plaintiffs, submitted proposed instructions under
both 4.11.1 (Denial of Adequate Medical Care) and 4.11.2 (Failure to Protect from Suicidal Action). (Docs.
303, 306). No party objected to the jury instructions based on the failure to include an instruction under
4.11.2. Sept. 14, 2016 Trial Tr. at 67:12-114:6.
29
Although this is a prison suicide case, in many respects it is not. Plaintiffs alleged a denial of adequate
medical care, and they did not and do not claim that Mr. Barbaros had a “particular vulnerability to suicide.”
Palakovic v. Wetzel, 854 F.3d 209, 224-25 (3d Cir. 2017) (“We clarify today . . . that the vulnerability to
suicide framework applies when a plaintiff seeks to hold prison officials accountable for failing to prevent a
prison suicide. It does not, however, preclude other types of claims, even if those claims also relate to an
individual who committed suicide in prison.”). In Palakovic, the plaintiffs, like Plaintiffs in this case, pursued
a claim “without regard to [decedent’s] particular vulnerability (of lack thereof) to suicide, and instead
wished to pursue a more general claim under Estelle that the [defendants] were deliberately indifferent to
[decedent’s] serious need for adequate mental healthcare and that this indifference led to the injury in the
form of a deterioration of [decedent’s] condition ultimately leading to suicide.” Id. at 227. It appears,
however, that at least one of Plaintiffs’ four theories of deliberate indifference (failure to monitor) may
encompass both frameworks. The Court need not spend time parsing these distinctions because the jury
was not instructed in this respect, and, in any event, under either framework there was insufficient evidence
to find the individual PrimeCare Defendants or Dr. Thomas liable under section 1983.
66
775-76 (3d Cir. 2004). To establish liability under section 1983, a plaintiff must prove by a
preponderance of the evidence that: (1) he was deprived of a federal right; and (2) the
person who deprived him of that right acted under color of state law. Burella v. City of
Philadelphia, 501 F.3d 134, 139 (3d Cir. 2007).
The state action element of Plaintiffs’ claim was not in dispute. The PrimeCare
Defendants conceded that, as a corporation contracting with the state to provide
constitutionally required medical services to inmates, both the corporation and its
employees qualified as state actors for purposes of section 1983. See West v. Atkins, 487
U.S. 55-56, 108 S.Ct. 42, 101 L.Ed.2d 40 (1988) (“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.”); see also Donnell v. Corr. Health Servs, Inc., 405 F.
App’x 617, 621 n.5 (3d Cir. 2010) (“[W]e do not think there is any dispute that the
[defendants], though not directly employed by the state, acted under color of state law in
providing medical services . . . at the Ocean County Jail.”). The jury was instructed,
consistent with the proposed jury instructions submitted by the PrimeCare Defendants,
(Doc. 333), that this element of Plaintiffs’ claim had been satisfied. The question for the jury
to decide, then, was whether Plaintiffs proved by a preponderance of the evidence that any
of the individual PrimeCare Defendants violated Mr. Barbaros' Fourteenth Amendment right
to adequate medical care and, if so, whether these acts and omissions caused Mr. Barbaros
to commit suicide.
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“While the Eighth Amendment prohibits the infliction of cruel and unusual punishment
upon prisoners, it applies only ‘after [the State] has secured a formal adjudication of guilt in
accordance with due process of law.’” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575,
581 (3d Cir. 2003) (quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239,
244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)). Accordingly, because Mr. Barbaros was a
pretrial detainee, not a convicted prisoner, his claims arose under the Fourteenth
Amendment’s due process clause.30 Id. at 582. In order to prove a constitutional violation
of Mr. Barbaros’ Fourteenth Amendment right to adequate medical care, Plaintiffs must
show: “(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate
deliberate indifference to that need.” Natale, 318 F.3d at 582. The Court will first address
whether the evidence was sufficient for a reasonable jury to conclude that Mr. Barbaros had
a “serious medical need.”
In denying the PrimeCare Defendants’ motion for summary judgment, the Court noted
that they “do not challenge whether Barbaros had a serious medical need.” (Doc. 175 at
n.10). At trial while moving for judgment as a matter of law pursuant to Rule 50(a), counsel
In opposition to the PrimeCare Defendants’ motion for summary judgment, Plaintiffs argued that
because their claim arises under the Fourteenth Amendment, as opposed to the Eighth Amendment, the
constitutional protections available to pre-trial detainees are greater, and, thus, a less stringent standard for
liability under section 1983 should apply. In support, Plaintiffs pointed to the Supreme Court’s statement
that the due process rights of pretrial detainees “are at least as great as the Eighth Amendment protections
available to a convicted prisoner.” City of Revere, 463 U.S. at 244. Although acknowledging that Plaintiffs’
“points are well-taken,” this Court “declined Plaintiffs invitation to opine on the nature of this standard,” as
“neither the Supreme Court nor the Third Circuit has ‘yet determined the precise standard that applies to
medical-treatment claims when brought by pretrial detainees.’” (Doc. 175, at 16) (citations omitted). Thus,
the Court analyzed the motion under the standard set forth in Eighth Amendment jurisprudence, and
continued to do so through trial.
30
68
for the PrimeCare Defendants stated: “Specifically, in this particular matter, I think, at least,
at this point, [it] has to be conceded that Mr. Barbaros had a serious medical condition, he
was diagnosed when he came into the prison with anxiety, and he received medications for
it. So I think that certainly meets the first prong.” Sept. 13, 2016 Trial Tr. at 10:6-10. The
PrimeCare Defendants in their brief in support of their post-trial motion, though, attempt to
disavow their own counsel’s statements:
Initially, it must be stated that PrimeCare Defendants do not concede
Barbaros suffered from a serious medical condition. He was a generally
healthy male who received mental health medications from his family
physician. There was nothing about his history which indicated he suffered
from a serious medical condition or that any of the PrimeCare Defendants
should have been subjectively aware of any serious medical condition.
(Doc. 377, at 21). The PrimeCare Defendants not only failed to move for judgment as a
matter of law pursuant to Rule 50(a) on the basis that Mr. Barbaros did not have a serious
medical need; they explicitly conceded that he did. Under the circumstances, the
PrimeCare Defendants have waived this issue and may not now claim in their Rule 50(b)
motion that the evidence was insufficient for a reasonable jury to conclude that Mr. Barbaros
had a serious medical.31 The Court need only address then, whether viewing the evidence
in the light most favorable to the Plaintiffs, no reasonable jury could conclude that any of the
“In order preserve an issue for judgment pursuant to Rule 50(b), the moving party must timely move
for judgment as a matter of law” before the case is submitted to the jury “and specify the grounds for that
motion.” Lightning Lube, 4 F.3d at 1172; see also Kutner Buick, Inc. v. Am. Motors Corp., 868 F.2d 614,
617 (3d Cir. 1989) (“The rule that a post-trial Rule 50 motion can only be made on grounds specifically
advanced in a motion for a directed verdict . . . is the settled law of this circuit.”) (citations omitted).
31
69
individual PrimeCare Defendants acted, or failed to act, with deliberate indifference to Mr.
Barbaros’ serious medical need.
A prison employee acts with deliberate indifference to an inmate’s serious medical need
when he or she “knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exits, and he must also draw that inference.” Farmer v.
Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “This requirement of
actual knowledge means that ‘the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.’” Beers-Capitol v. Whetzel, 256 F.3d 120, 131 (3d Cir. 2001) (quoting
Farmer, 511 U.S. at 837). “[D]eliberate indifference is a stringent standard of fault, requiring
proof that a municipal actor disregarded a known or obvious consequence of his action.”
Bd. Of Cnty. Comm’rs of Bryan Cnty. Oklahoma v. Brown, 520 U.S. 397, 410, 117 S.Ct.
1382, 137 L.Ed.2d 626 (1997).
Plaintiffs, however, “need not show that a prison official acted or failed to act believing
that harm actually would befall an inmate; it is enough that the official acted or failed to act
despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842. A
defendant’s knowledge of a substantial risk of serious harm “can be proved indirectly by
circumstantial evidence” and a jury may reasonably find that a defendant “knew of a
substantial risk from the very fact that risk was obvious.” Beers-Capitol, 256 F.3d at 131
70
(internal citation and quotation marks omitted). In addition, a defendant “who is actually
aware of the risk to the prisoner can avert liability by showing that he responded reasonably
to the risk, even if the ultimate harm was not avoided.” Id. at 132.
It is apparent that “[t]he knowledge element of deliberate indifference is subjective, not
objective knowledge, meaning that the official must actually be aware of the existence of the
excessive risk; it is not sufficient that the official should have been aware.” Id. at 133.
There must, therefore, be sufficient evidence from which a jury could reasonably conclude
that each of the individual PrimeCare Defendants “knew or were aware of and disregarded
an excessive risk to [Mr. Barbaros’] health and safety, and they can show this by
establishing that the risk was obvious.” Id. at 135.
The Third Circuit has found acts and omissions amounting to deliberate indifference to a
serious medical need in a number of contexts “including where (1) prison authorities deny
reasonable requests for medical treatment, (2) knowledge of the need for medical care is
accompanied by the intentional refusal to provide it, (3) necessary medical treatment is
delayed for non-medical reasons, and (4) prison authorities prevent an inmate from
receiving recommended treatment for serious medical needs.” Pearson v. Prison Health
Serv., 850 F.3d 526, 538 (3d Cir. 2017) (citations omitted). It is well-established that
evidence that prison medical personnel negligently failed to diagnose or properly treat a
medical condition, without more, is insufficient to demonstrate deliberate indifference. See,
e.g., id. at 535 (“[T]he mere receipt of inadequate medical care does not itself amount to
71
deliberate indifference – the defendant must also act with the requisite state of mind when
providing the inadequate care.”); Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (“It is
well-settled that claims of negligence or medical malpractice, without some more culpable
state of mind, do not constitute deliberate indifference.”); Hartman v. Corr. Med. Servs., 366
F. App’x 453, 455 (3d Cir. 2010) (“Allegations of medical negligence do not trigger
constitutional protections.”) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976); Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993)).
“[T]he deliberate indifference standard affords considerable latitude to prison medical
authorities in the diagnosis and treatment of the medical problems of inmate patients,” and
courts must “disavow any attempt to second-guess the propriety or adequacy of [their]
particular course of treatment so long as it remains a question of sound professional
judgment.” Pearson, 850 F.3d at 538 (internal citation and quotation marks omitted).
Where, as here, “a prisoner has received some amount of medical treatment, it is difficult to
establish deliberate indifference, because prison officials are afforded considerable latitude
in the diagnosis and treatment of prisoners.” Palakovic, 854 F.3d at 227 (citing Durmer, 991
F.2d at 67). However, “there are circumstances in which some care is provided yet it is
insufficient to satisfy constitutional requirements.” Id. at 228. For example, prison medical
personnel “may not, with deliberate indifference to the serious medical needs of the inmate,
opt for an easier and less efficacious treatment of the inmate’s condition.” Id. (internal
citation and quotation marks omitted). “Nor may prison authorities deny reasonable requests
72
for medical treatment . . . [when] such denial exposes the inmate to undue suffering or the
threat of tangible residual injury.” Id. (internal citation and quotation marks omitted).
With this standard in mind, the Court has carefully reviewed the testimony and evidence
presented at trial. Having done so, and viewing all of the evidence in the light most
favorable to the Plaintiffs and giving them the benefit of every reasonable inference, the
Court concludes that no reasonable jury could find that any of individual PrimeCare
Defendants acted, or failed to act, with deliberate indifference to Mr. Barbaros’ serious
medical needs. Plaintiffs claimed, and the jury instructions provided, four acts and
omissions by the individual PrimeCare Defendants that Plaintiffs alleged constituted
deliberate indifference to Mr. Barbaros’ serious medical needs sufficient to impose liability
under section 1983: (1) ignoring a diagnosed medical condition that required Mr. Barbaros
to take the medication Paxil; (2) ignoring and/or disregarding obvious symptoms that
showed Mr. Barbaros was suffering from withdrawal; (3) failing to ensure proper dosing
when restarting Mr. Barbaros’ medications; and (4) failing to monitor Mr. Barbaros. Before
addressing why the evidence presented in this case, viewed in the light most favorable to
the Plaintiffs, was insufficient to find any of the individual PrimeCare Defendants liable, the
Court finds it appropriate to highlight counsel for the Plaintiffs’ arguments in opposition to
the PrimeCare Defendants’ Rule 50(a) motion. The Court does so because these
arguments present a textbook example of why the evidence presented to the jury, although
sufficient for a reasonable jury to find negligence, was insufficient to demonstrate acts and
73
omissions by the prison nurses sufficient to give rise to a constitutional violation of Mr.
Barbaros’ Fourteenth Amendment right to adequate medical care. In claiming that Plaintiffs
presented sufficient evidence to submit the question of deliberate indifference to the jury,
counsel for the Plaintiffs stated:
I’m going to do this for all the nurses. I asked every one of the nurses, they
all agreed, there’s no dispute that this is a serious medical need. The
question is, were they subjectively aware of the risk of their actions. I ask
Nurse Paul James, he said Yes, I knew that, at the time, when I didn’t fill in
that document, that that could put him at risk of harm. So he was subjectively
aware. That means that he was deliberately indifferent or, at least, it’s a
factual issue.
Nurse Bauer—do you know what? They all did render care, and that doesn’t
mean you’re not deliberately indifferent. Nurse Bauer didn’t investigate. She
didn’t even comply with policies. She knew of the risk and she ignored it.
Nurse Rowe—I mean, then Nurse Rowe, it’s very common not to have the
chart with you, in direct violation of the minimum standards. She knows if she
doesn’t review the chart, that that’s going to not give her necessarily a full
picture of her patient and, potentially, failure to investigate, again, puts her
patient at risk of harm. Failure to recognize the symptoms in this case, the
constellation of symptoms that Nurse Wild talked about.
Wendy Johnson. She actually investigated and failed to communicate, even
though she knew it was a risk. She knew it was a risk, and none of them
investigated the side effects of Paxil, what it could do, and none of them
knew, and they all admitted they had an obligation to investigate. And that’s
throughout.
So I would submit, Your Honor, is that there’s ample evidence against
everyone in this case that there was subjective knowledge of a risk related to
that serious medical need. They failed to investigate, they ignored that risk,
that amounts to deliberate indifference or, at a minimum, a factual dispute
that properly should be left for the jury at the end of the trial, Your Honor.
Thank you.
74
Sept. 13, 2016 Trial Tr. at 24:11-25:19.
The Court will now address each of the individual PrimeCare Defendants’ acts and
omissions and whether there was sufficient evidence for a reasonable jury to find each of
these Defendants liable.
a. Paul James
The evidence presented at trial, viewed in the light most favorable to the Plaintiffs,
shows that Paul James acted or failed to act in violation of multiple policies and procedures
established by PrimeCare; policies and procedures established for the purpose of ensuring
patient health and safety. Nurse James’ actions and omissions placed Mr. Barbaros at an
increased risk of harm. At the time he conducted Mr. Barbaros’ intake, Nurse James
spelled Mr. Barbaros’ name incorrectly on more than one occasion, wrongly identified his
medications as “Prozac” and Trazodone instead of Paxil and Trazodone, and failed to
obtain a great deal of information he was required to record on Mr. Barbaros’ intake form.
His failure to fully and accurately complete these forms, including his failure to obtain critical
information about why Mr. Barbaros took his medications, the last time he had taken his
medications, or the dosage, placed Mr. Barbaros at an increased risk of harm. Nurse
James also did not place Mr. Barbaros on the “psych list,” as required by PrimeCare’s
policies and procedures.
Nurse James did, however, place Mr. Barbaros on a list to see a medical provider after
determining that Mr. Barbaros suffered from an ulcer. He also completed a suicide
75
assessment and determined that Mr. Barbaros did not meet the criteria to be placed on
suicide watch. Plaintiffs did not, and do not, claim that Nurse James’ failure to place Mr.
Barbaros on suicide watch was negligent, let alone deliberately indifferent to his serious
medical need. Rather, Plaintiffs’ theory of the case was that Mr. Barbaros was not suicidal
at this time. Because Nurse James met with Mr. Barbaros at approximately 3:00 a.m., he
was unable to verify his medications. Instead, he obtained and documented information
about Mr. Barbaros that was later used by another member of the nursing staff to verify his
medications, including: (1) the correct name of his prescribing physician, Dr. Katz; (2) the
correct name and location of the pharmacy where he filled his medications, CVS pharmacy
in Mountainhome; and (3) his date of birth and social security number. Nurse James also
took Mr. Barbaros’ vital signs, which were normal. He had no interactions with Mr. Barbaros
during the course of his incarceration at the MCCF or any involvement in his care and
treatment.
Nurse James acknowledged that he was subjectively aware, in 2009, that the many
mistakes he made on the intake documents could put a patient at an increased risk of harm.
There was no evidence or reasonable inference, however, that at the time he was
completing Mr. Barbaros’ intake, Nurse James actually knew of, and disregarded, an
excessive risk to Mr. Barbaros’ health and safety. Nor was there any evidence from which a
jury could reasonably infer Nurse James’ knowledge of an excessive risk of harm to Mr.
Barbaros from the fact that multiple individuals testified that it is important to obtain
76
complete and accurate information about a patient while conducting an intake and the
failure to do so could place a patient at risk of harm. Thus, although there was sufficient
evidence from which the jury could reasonably infer that Nurse James’ acts and omissions
breached the standard of care and increased the risk of harm to Mr. Barbaros (and that he
was aware that such failures could increase the risk of harm to a patient), no reasonable
jury could find that Nurse James’ negligent handling of Mr. Barbaros’ intake constituted acts
and omissions in knowing disregard of an excessive risk of harm to Mr. Barbaros’ health
and safety. Nor could a reasonable jury conclude that Nurse James “knowingly and
unreasonably disregard[ed] an objectively intolerable risk of harm.” Farmer, 511 U.S. at 846.
Plaintiffs presented four theories of deliberate indifference: (1) ignoring a diagnosed
medical condition that required Mr. Barbaros to take Paxil; (2) ignoring and/or disregarding
obvious symptoms that showed Mr. Barbaros was suffering from medication withdrawal; (3)
failing to ensure proper dosing when restarting Mr. Barbaros medication; and (4) failing to
monitor Mr. Barbaros. The Court will address each in turn.
Viewing the evidence in the light most favorable to the Plaintiffs, there was insufficient
evidence from which the jury could reasonably infer that Nurse James ignored a diagnosed
medical condition that required Mr. Barbaros to take Paxil. The jury could reasonably
conclude that, at the time of the intake, Nurse James was aware that Mr. Barbaros took
psychiatric medications and also was aware that it was important to obtain complete and
accurate information about a patient because failure to do so could place a patient at an
77
increased risk of harm. His acts and omissions, in turn, affected the nursing staff’s ability to
promptly continue these medications. The jury could also reasonably have concluded that
Nurse James did not place Mr. Barbaros on the list to see a mental health professional, in
violation of PrimeCare’s policies and procedures, and instead only placed him on the list to
see a medical provider.
These actions and omissions, without more, were insufficient for a reasonable jury to
conclude that Nurse James acted, or failed to act, with deliberate indifference to Mr.
Barbaros’ serious medical needs. No reasonable jury could infer that Nurse James acted,
or failed to act, in conscious disregard of Mr. Barbaros’ medical condition that required him
to take Paxil. To the contrary, Nurse James took some action, though it was neither
complete nor sufficient, to ensure that Mr. Barbaros received his medications and that he
would receive further medical care to address his needs. He placed Mr. Barbaros on a list
to see a medical provider. Nurse James also documented and communicated information
about his psychiatric medications, albeit rather sloppily, so that the nurse on the next shift
was aware that Mr. Barbaros took psychiatric medications and so she could attempt to
verify these medications and provide them to Mr. Barbaros. His conduct, without more, was
not sufficiently culpable to rise to the level of acts and omissions that could reasonably be
considered denying or delaying access to medical care for non-medical reasons so as to
impose liability for a violation of a constitutional right under section 1983. Based on these
uncontroverted facts, and viewing the evidence in the light most favorable to the Plaintiffs,
78
no reasonable jury could find Nurse James ignored a diagnosed medical condition that
required Mr. Barbaros to take Paxil.
Nor could a reasonable jury find Nurse James liable for “ignoring and/or disregarding
obvious symptoms that showed Mr. Barbaros was suffering from medication withdrawal.”
Neither Plaintiffs’ theory of the case, nor the evidence viewed in the light most favorable to
them, was sufficient to show that Mr. Barbaros was suffering from withdrawal at the time of
intake, let alone exhibiting obvious symptoms of withdrawal that Nurse James consciously
disregarded. Plaintiffs did not argue to the contrary and there was no evidence to support
this conclusion. For similar reasons, no reasonable jury could find that Nurse James “failed
to monitor” Mr. Barbaros in conscious disregard of an excessive risk of harm to his health
and safety. Plaintiffs neither alleged, nor presented any evidence from which the jury could
reasonably conclude, that at the time of the intake, Mr. Barbaros was suicidal and should
have been placed on monitoring. Accordingly, there was no evidence from which the jury
could reasonably infer that Nurse James’ failure to place Mr. Barbaros on monitoring was
negligent, let alone deliberately indifferent to his serious medical needs.
A reasonable jury could also not conclude that Nurse James “intentionally or recklessly
failed to ensure proper dosing when restarting Mr. Barbaros’ medication.” Although Nurse
James wrote down “Prozac,” instead of “Paxil,” and did not obtain any information about the
dosage or last time Mr. Barbaros took his medications, among other things, it does not
follow that this constitutes intentional or reckless failure to “ensure proper dosing when
79
restarting” his medications. No reasonable jury could conclude that this theory of liability
applied to the acts and omissions of Nurse James.32 Nurse James had no involvement in
the resumption of Mr. Barbaros’ medication and had no say in the dosage Dr. Thomas
chose to prescribe. His failure to document the correct dosage (a question that was not
identified on the PrimeCare intake forms) coupled with his testimony that he was aware that
failure to obtain and document complete and accurate information about a patient and their
medications, without more, was insufficient evidence from which the jury could reasonably
conclude that at the time Nurse James completed Mr. Barbaros’ intake form, Nurse James
consciously disregarded a known or obvious excessive risk to Mr. Barbaros’ health and
safety on this theory. Viewing all the evidence in the light most favorable to the Plaintiffs,
Nurse James’ acts and omissions, while negligent, do rise to the level of deliberate
indifference.
b.
Patricia Bauer
Nurse Bauer’s involvement in the treatment of Mr. Barbaros was brief, and involved what
appear to be two acts and various omissions. Viewing the evidence in the light most
favorable to the Plaintiffs, a reasonable jury could conclude that Nurse Bauer made a single
phone call to CVS pharmacy in an attempt to verify Mr. Barbaros’ medications based on the
information provided to her by Nurse James earlier in the day. She then wrote on Mr.
It appears that this theory of deliberate indifference could apply only to Dr. Thomas, as he was the
only individual with the authority to ensure proper dosing and to make the decision to restart Mr. Barbaros
on Paxil. Even if the Court were to consider this theory applied to the nursing staff, it was no doubt limited
to the nursing staff who, unlike Paul James, were involved in Mr. Barbaros care when restarting his
medications.
32
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Barbaros’ chart that “CVS denies customer.” In violation of PrimeCare’s policies and
procedures, she made no other attempt to use alternative methods for obtaining the
medications. She also did not call the on-call psychiatrist and relay this information that his
medications could not be verified, in violation of PrimeCare’s policies and procedures.
Nurse Bauer also made no attempt to speak with Mr. Barbaros to see if there was any
inaccurate information on the intake form which prevented CVS from verifying the
medication. Instead, knowing that he claimed to be taking psychiatric medications, Nurse
Bauer placed him on the “psych list” so he could be seen by a mental health professional.
She did not, however, take any other actions to provide him access to his medications or
alert any other member of the staff to his needs. Nurse Bauer testified that she knew, in
2009, that it was important to obtain psychiatric medications for a patient as soon as
possible because there is a possibility that patient could suffer withdrawal.
Although the jury could reasonably conclude that, in 2009, Nurse Bauer was subjectively
aware that the failure to promptly obtain a similarly situated patient’s prescription
medications could put that patient at an increased risk of harm, there is no evidence from
which a jury could reasonably conclude that, at the time she called CVS and then took no
other actions to verify Mr. Barbaros’ medications, Nurse Bauer was aware of and
disregarded an excessive risk of harm to Mr. Barbaros. The testimony presented at trial,
viewed in the light most favorable to the Plaintiffs, was that Nurse Bauer was aware that
failure to obtain a patient’s psychiatric medications “could” or “possibly” cause a patient to
81
suffer from withdrawal. Nor was there any evidence from which the jury could reasonably
conclude that the risk of a patient going into withdrawal or SSRI discontinuation is an
excessive or obvious risk, which Nurse Bauer disregarded. In fact, the testimony was to the
contrary: the risk of withdrawal, though not negligible, was neither excessive nor obvious.
Based on the evidence presented at trial and Plaintiffs’ theories of deliberate indifference as
presented to the jury, no reasonable jury could find Nurse Bauer’s negligent acts and
omissions violated Mr. Barbaros’ constitutional rights.
Nurse Bauer made just one attempt to verify Mr. Barbaros medications. When that
attempt failed, although she could and should have done more, she placed Mr. Barbaros on
a list to see a mental health professional, but did not call the on-call psychiatrist as required
by PrimeCare’s policies and procedures. She testified that it was her understanding that he
would be seen by a mental health provider the following day. Giving Plaintiffs the benefit of
every reasonable inference, there was insufficient evidence from which a reasonable jury
could conclude Nurse Bauer knowingly ignored Mr. Barbaros’ “condition that required him to
take Paxil.” Instead, Nurse Bauer took two steps, albeit inadequate, unsuccessful, and in
violation of PrimeCare’s policies and procedures, to address Mr. Barbaros’ medication
needs. Her negligent acts and omissions were not deliberately indifferent and no
reasonable jury could find that she denied or delayed access to treatment for non-medical
reasons. No reasonable jury could conclude that Nurse Bauer’s acts and omissions
constituted a conscious disregard of an excessive or obvious risk to Mr. Barbaros’ health
82
and safety. See Pearson, 850 F.3d at 539 (plaintiffs “offered no circumstantial evidence
suggesting that Nurse Thomas subjectively appreciated the true seriousness of the risk of
harm. Nor did he produce extrinsic evidence that Nurse Thomas’s treatment decision
regarding the symptoms of which she had awareness was a substantial departure from
accepted professional judgment, practice, or standards, such that a reasonable jury could
conclude that she actually did not base her decision on such judgment.”) (internal citation
and quotation marks omitted). The fact that she could have and should have done more
speaks to negligence, not deliberate indifference.
Nor was the evidence such for a reasonable jury to conclude that Nurse Bauer “failed to
monitor” Mr. Barbaros in conscious disregard of a known or obvious risk. Plaintiffs neither
alleged, nor presented any evidence, that at the time Nurse Bauer called CVS pharmacy,
Mr. Barbaros was either suicidal or suffering from obvious symptoms of withdrawal that she
knew of and disregarded. Instead, Plaintiffs’ theory of the case, consistent with the
evidence viewed in the light most favorable to them, was that Mr. Barbaros started to exhibit
signs of withdrawal the day after Nurse Bauer attempted to verify his medications,
withdrawal that could have been prevented, lessened, or diagnosed had she acted different.
And there was no evidence from which the jury could reasonably conclude that Nurse Bauer
personally saw Mr. Barbaros on that day. Viewing the evidence in the light most favorable
to the Plaintiffs, Nurse Bauer’s acts and omissions could, as the jury found, breach the duty
of care and contribute to a further delay of access to Mr. Barbaros’ necessary medications
83
which, in turn, worsened his withdrawal and contributed to his suicide. But this evidence
was insufficient for the jury to reasonably conclude that Nurse Bauer “intentionally or
recklessly failed to monitor” Mr. Barbaros, in conscious disregard of a known or obvious
excessive risk of harm.
For similar reasons, no reasonable jury could find that Nurse Bauer “intentionally or
recklessly ignored and/or disregarded obvious symptoms” that Mr. Barbaros was suffering
from medication withdrawal. As discussed, neither Plaintiffs’ theory of the case, nor the
evidence presented at trial, was sufficient to establish that, at this time, Mr. Barbaros was
exhibiting obvious symptoms of withdrawal that Nurse Bauer intentionally or recklessly
disregarded. Therefore, no reasonable jury could find that Nurse Bauer intentionally or
recklessly ignored and/or disregarded Mr. Barbaros’ “obvious” symptoms of withdrawal.
Finally, for the reasons discussed as to why no reasonable jury could find that Nurse
James acted with deliberate indifference by failing to ensure proper dosing upon resumption
of Mr. Barbaros’ medication, no reasonable jury could find Nurse Bauer liable under this
theory of deliberate indifference.
c.
Christina Rowe
Viewing the evidence in the light most favorable to Plaintiffs, a reasonable jury could
conclude that the day after Nurse Bauer attempted, unsuccessfully, to verify Mr. Barbaros’
medications, Mr. Barbaros submitted a sick call slip on March 19 and had still not received
his medications. Around 10:00 a.m. on March 20 he was assessed by Nurse Rowe. During
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the assessment, Nurse Rowe took and documented Mr. Barbaros’ vital signs, which
revealed high blood pressure that was clinically significant. She wrote on a form that he
was not taking any medications. Nurse Rowe performed a headache assessment based on
Mr. Barbaros’ complaints and documented the results. In violation of PrimeCare’s policies
and procedures, however, Nurse Rowe did not review Mr. Barbaros’ medical chart prior to
performing her assessment or completely fill out the headache assessment, among other
medical forms. Had Nurse Rowe acted differently, she would have realized that Mr.
Barbaros claimed to be taking psychiatric medication, that CVS denied him as a customer,
and that no further attempts had been made to verify and obtain his medications.
After completing her assessment of Mr. Barbaros, Nurse Rowe obtained and provided
Mr. Barbaros with Tylenol and directed it be taken twice a day to treat his headaches. Later
that day she relayed to the on-call physician’s assistant that Mr. Barbaros was suffering
from high blood pressure and obtained from her a prescription for Lopressor to be given to
Mr. Barbaros for thirty days. She also obtained a medical order that Mr. Barbaros’ blood
pressure was to be taken daily for the next five days (a medical order that was never carried
out). Nurse Rowe documented this information on his medical chart, and now had the
opportunity to review his chart that she did not have access to at the time of her assessment
hours earlier in the day. If Nurse Rowe had conducted any investigation, a reasonable jury
could conclude that she would have “connected the dots” and realized he was suffering
from withdrawal due to his symptoms and lack of medication. That is, Nurse Rowe would
85
have been aware that Mr. Barbaros had been off his medications for several days, and this
knowledge, coupled with her knowledge that he was exhibiting withdrawal symptoms, would
have indicated to her that Mr. Barbaros was suffering from withdrawal. This, in turn, would
have, in accordance with PrimeCare’s policies and procedures, required her to place Mr.
Barbaros on medical monitoring or, at a minimum, alert a medical provider or member of the
nursing staff to these facts.
These facts, viewed in the light most favorable to Plaintiffs, although sufficient for the
jury to find Nurse Rowe negligent, are not sufficient to find her liable for deliberate
indifference for acting, or failing to act, in conscious disregard of a known or obvious risk to
Mr. Barbaros’ health and safety. No reasonable jury could find Nurse Rowe liable for
deliberate indifference under any of the theories advanced by Plaintiffs.
No reasonable jury could find that Nurse Rowe, with deliberate indifference, “ignored a
diagnosed medical condition that required Mr. Barbaros to take Paxil.” Viewing the
evidence in the light most favorable to the Plaintiffs, the jury could reasonably conclude
Nurse Rowe knew that Mr. Barbaros was taking Paxil in the hours after conducting her
assessment and that his medications had not been verified in two days. She also knew Mr.
Barbaros was experiencing symptoms associated with withdrawal (high blood pressure and
a headache). Although she did not know Mr. Barbaros was taking Paxil at the time of her
assessment earlier that day (because she negligently conducted it without the benefit of his
medical chart) she would or should have known this hours later after obtaining the order for
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Lopressor and daily blood pressure checks when she documented this information in Mr.
Barbaros’ medical chart. Nevertheless, Nurse Rowe took no steps to ensure Mr. Barbaros
received his medications, or that further attempts were made to verify the medications. The
medications were verified and prescribed later that evening, after Mr. Barbaros complained
in Court that he was not receiving his medications.
Although the jury could reasonably conclude that Nurse Rowe was aware of Mr.
Barbaros’ medical condition that required him to take Paxil, and did nothing to provide him
further access to his medications, this was not a sufficient basis to hold her liable for a
deprivation of Mr. Barbaros’ constitutional rights based on the evidence presented at trial.
There was no evidence from which the jury could reasonably conclude that Nurse Rowe
was actually aware of, and disregarded, an excessive risk of harm to Mr. Barbaros by failing
to take further actions to obtain his medications. To the contrary, not only was there no
evidence that being without Paxil for approximately three days puts a patient at an
excessive risk of harm, but the evidence showed that Nurse Rowe was not aware of an
excessive risk of harm. Nor was there any evidence from which the jury could reasonably
infer her knowledge based on the obviousness of the risk. Her acts and omissions, while
negligent, do not satisfy the “stringent standard” required to subject her to liability under
section 1983 for providing constitutionally inadequate medical care.
Similarly, no reasonable jury could find Nurse Rowe liable on the theory she “ignored
and/or disregarded obvious symptoms” that Mr. Barbaros was suffering from withdrawal.
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There was no evidence that Nurse Rowe was aware of, and disregarded, obvious
symptoms that Mr. Barbaros was suffering from withdrawal, but chose to do nothing.
Rather, the evidence viewed in the light most favorable to the Plaintiffs, was that she
negligently failed to conduct an investigation sufficient to apprise herself of the facts and
circumstances, and that she should have connected the dots but did not. Nor was there any
evidence from which the jury could reasonably conclude that Nurse Rowe was aware that
Mr. Barbaros was displaying “obvious” symptoms of withdrawal or that Mr. Barbaros’
symptoms were so obvious that she had to have known he was in withdrawal. Instead, the
evidence at trial was that headaches and high blood pressure could be signs of withdrawal,
not that they are obvious symptoms. Moreover, there is no dispute that Nurse Rowe
promptly provided treatment for both Mr. Barbaros’ headache and high blood pressure to
address his medical needs. See Pearson, 850 F.3d at 538-39 (“[E]ven if a reasonable jury
could find that Nurse Thomas was negligent in diagnosing or treating his pain, that would
not be enough for the jury to find that Nurse Thomas acted with deliberate indifference . . . it
is undisputed that she examined him, diagnosed him with a pulled muscle, and decided not
to elevate his condition based on her opinion that it was not severe.”).
Nor could a reasonable jury conclude that Nurse Rowe acted, or failed to act, with
deliberate indifference to Mr. Barbaros’ serious medical needs by “failing to monitor” him, in
conscious disregard of a known risk of excessive harm. There was no evidence that Nurse
Rowe knew of, and disregarded, a need to monitor Mr. Barbaros, but nevertheless
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consciously disregarded that risk. Rather, the evidence viewed in the light most favorable to
the Plaintiffs was that Nurse Rowe’s failure to adequately investigate Mr. Barbaros’ situation
prevented her from obtaining the necessary information that would enable a reasonable
nurse to recognize he was experiencing withdrawal symptoms associated with the denial of
access to his medications, which, in turn, would have alerted a reasonable nurse that Mr.
Barbaros needed to be placed on monitoring or, at a minimum, that she should alert a
medical provider. But there is no evidence from which a reasonable jury could conclude
that Nurse Rowe actually knew of an excessive risk of harm to Mr. Barbaros and
consciously ignored that risk. Nor could a reasonable jury infer Nurse Rowe’s knowledge of
the risk based on the fact that it was obvious. There was no evidence from which a
reasonable jury could infer that the fact that Mr. Barbaros was experiencing a headache,
high blood pressure, and abdominal pain, coupled with the lack of Paxil, presented such
obvious symptoms of withdrawal that Nurse Rowe had to have known that the failure to
place him on monitoring placed Mr. Barbaros at an excessive risk of harm. See Colburn v.
Upper Darby Twp., 946 F.2d 1017, 1025 (3d Cir. 1991) (“[T]here can be no reckless or
deliberate indifference to that risk unless there is something more culpable on the part of the
officials than a negligent failure to recognize a high risk of suicide.”). Her actions, while
negligent, did not violate Mr. Barbaros’ constitutional rights.
Finally, no reasonable jury could find that Nurse Rowe “failed to ensure proper dosing”
when restarting Mr. Barbaros on his medications. Like Nurse Bauer and Nurse James,
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there is no evidence of her personal involvement in the resumption of Mr. Barbaros’
medication, or any conduct that could plausibly be connected to the dosage.
d. Grace Ramos
A reasonable jury also could not conclude that Nurse Ramos acted, or failed to act, with
deliberate indifference to Mr. Barbaros’ serious medical needs. Viewing all the evidence in
the light most favorable to the Plaintiffs, a reasonable jury could conclude that on the
afternoon of March 20, Mr. Barbaros complained to a judge during his arraignment that he
was not receiving his medications. This message was relayed back to the MCCF. Shortly
thereafter, Wendy Johnson called Nurse Ramos and asked her to attempt to verify Mr.
Barbaros’ medications with the CVS pharmacy where Nurse Bauer, two days earlier, had
been unable to verify the prescriptions. Around 9 p.m. that evening Nurse Ramos called
CVS pharmacy and successfully verified Mr. Barbaros’ medications. Nurse Ramos then
contacted Dr. Thomas, the on-call psychiatrist, and obtained prescriptions for Paxil and
Trazodone in the same dosages as Mr. Barbaros had been prescribed by physician, Dr.
Katz. In violation of PrimeCare’s policies and procedures, Nurse Ramos also did not review
Mr. Barbaros’ medical chart which, had she done so, would have made her aware that
important information was missing, including when he last took these medications. She also
would or could have realized that Mr. Barbaros was experiencing symptoms associated with
withdrawal. Thus, had Nurse Ramos followed PrimeCare’s policies and procedures, she
could or would have recognized that Mr. Barbaros had been without his medications for
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approximately three days, was in withdrawal, and placed him on monitoring. At a minimum,
she was under an obligation to provide this information to Dr. Thomas or another medical
provider.
A reasonable jury could also conclude that Nurse Ramos gave Mr. Barbaros his
Trazodone later that evening, but did not give him his Paxil at this time because it is a drug
taken in the morning. A reasonable jury could also conclude that on the evening of March
21, hours before Mr. Barbaros committed suicide, Nurse Ramos failed to give Mr. Barbaros
his Trazodone, contrary to medical orders and in violation of PrimeCare’s policies and
procedures. Mr. Barbaros received his Paxil on the morning of March 21.
For reasons similar to those discussed in connection with the other individual PrimeCare
Defendants, Nurse Ramos’ acts and omissions, without more, were insufficient evidence
from which a reasonable jury could conclude that Nurse Ramos acted, or failed to act, with
deliberate indifference to Mr. Barbaros’ serious medical need. There was simply no
testimony that, at the time of Nurse Ramos’ acts and omissions, she was aware of, and
consciously disregarded, a risk of harm to Mr. Barbaros, let alone an excessive risk of harm.
Nor was the risk of harm of such a nature that the jury could reasonably find the risk
“obvious” and therefore infer Nurse Ramos’ actual knowledge of the risk.
There was no evidence that Nurse Ramos intentionally or recklessly “ignored a
diagnosed medical condition” that required Mr. Barbaros to take Paxil. To the contrary,
viewing the evidence in the light most favorable to the Plaintiffs, no reasonable jury could
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find that Nurse Ramos intentionally or recklessly ignored Mr. Barbaros’ needs in this
respect. Within hours after learning of Mr. Barbaros’ complaints from Wendy Johnson,
Nurse Ramos called CVS and attempted to verify his medications. After she successfully
completed this task, she called Dr. Thomas and, as a result, Mr. Barbaros obtained his
Trazodone that evening and his Paxil in the morning.33
Similarly, no reasonable jury could find Nurse Ramos liable on the theory she: (1)
“ignored and/or disregarded obvious symptoms” that Mr. Barbaros was suffering from
withdrawal; or (2) “failed to monitor” Mr. Barbaros in conscious disregard of a known risk of
harm. There was no evidence from which a reasonable jury could infer that, at the time she
was attempting to obtain Mr. Barbaros’ medications, Nurse Ramos intentionally or
recklessly declined to review Mr. Barbaros’ medical chart, in conscious disregard of an
excessive risk of harm. Rather, the evidence viewed in the light most favorable to the
Plaintiffs shows that, like Nurse Rowe, Nurse Ramos negligently failed to review Mr.
Barbaros’ medical chart and connect the dots, and that a reasonable nurse in her position
would have done so. Nurse Ramos’ failure to review Mr. Barbaros’ medical chart prevented
her from obtaining necessary information that would enable a reasonable nurse to
recognize he was experiencing withdrawal symptoms, and a reasonable nurse would have
realized this. A reasonable nurse, armed with this information, would have realized that Mr.
Barbaros needed to be placed on monitoring, consistent with PrimeCare’s policies and
There was also no evidence from which the jury could reasonably conclude that Nurse Ramos, with
deliberate indifference, failed to give Mr. Barbaros his Trazodone; nor could the jury find that the conduct
amounted to anything more than negligence.
33
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procedures on withdrawal. At a minimum, a reasonable nurse would have realized that this
was important information she had an obligation to investigate and relay to Dr. Thomas.
But no reasonable jury could conclude that Nurse Ramos’ negligent acts and omissions
rose to the level of deliberate indifference to Mr. Barbaros’ serious medical needs. The
evidence viewed in the light most favorable to Plaintiffs, was insufficient to show that Nurse
Ramos knew of, and disregarded, obvious symptoms that Mr. Barbaros was suffering from
withdrawal. The evidence was also insufficient for a jury to reasonably conclude Nurse
Ramos knew of, and disregarded, the need to monitor Mr. Barbaros. In fact, it was Plaintiffs’
theory, borne out by the evidence, that Nurse Ramos should have been aware that Mr.
Barbaros was experiencing signs of withdrawal and should have placed him on monitoring
or alerted Dr. Thomas who, in turn, should have placed him on monitoring. These facts,
without more, show negligence. They do not provide a sufficient evidentiary basis for a
reasonably jury to find deliberate indifference. Colburn, 946 F.2d at 1025.
Finally, no reasonable jury could find Nurse Ramos liable for deliberate indifference on
the theory that she intentionally or recklessly “failed to ensure proper dosing” when
restarting Mr. Barbaros’ medication. As an initial matter, the evidence presented to the jury
was that ensuring the proper dosage is the prescribing physician’s responsibility. The
evidence presented showed that ensuring proper dosing when resuming Paxil is beyond the
scope of a LPN’s responsibility, and was, instead, Dr. Thomas’ responsibility. But even if
that were not the case, Nurse Ramos verified Mr. Barbaros’ medications and relayed the
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correct information about the names and dosages to Dr. Thomas. From there, it was the
responsibility of Dr. Thomas, exercising medical judgment, to prescribe the medications and
determine to correct dosages. Viewing all the evidence in the light most favorable to the
Plaintiffs, no reasonable jury could conclude Nurse Ramos intentionally or recklessly failed
to ensure proper dosing when restarting Mr. Barbaros’ medication.
e. The Individual PrimeCare Defendants Did Not Violate Mr. Barbaros’
Constitutional Right to Adequate Medical Care
Each of the individual PrimeCare Defendants provided some medical treatment or
affirmatively acted to provide Mr. Barbaros access to care to address his serious medical
needs. His prescriptions were verified within 72 hours of his arrival. He received his
Trazodone within 72 hours of arriving at the facility and received his Paxil shortly thereafter.
There was no evidence that any of the individual PrimeCare Defendants knowingly
disregarded any excessive risks to his health and safety. Nor could the risk of harm
reasonably be found to be obvious. Where, as in this case, care is provided to a pretrial
detainee to address his serious medical needs, “it is difficult to establish deliberate
indifference, because prison officials are afforded considerable latitude in the diagnosis and
treatment of prisoners.” Palakovic, 854 F.3d at 227. Although that is not dispositive, the
facts and circumstances surrounding the individual PrimeCare Defendants’ acts and
omissions during their care and treatment of Mr. Barbaros cannot be classified as
“circumstances in which some care is provided yet it is insufficient to satisfy constitutional
requirements.” Id.
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It is well-settled that the “mere receipt of inadequate medical care does not itself amount
to deliberate indifference.” Pearson, 850 F.3d at 535. Allegations that prison medical
personnel failed to diagnose or properly treat a medical condition does not demonstrate
deliberate indifference. Id. at 538. There was insufficient evidence from which a jury could
reasonably conclude that the delay in providing Mr. Barbaros his Paxil was the result of
deliberate indifference by delaying medical treatment for non-medical reasons. Cf. Natale,
318 F.3d at 582-83 (“A reasonable jury could conclude that PHS employees knew that
Natale was an insulin-dependent diabetic and that if insulin was not administered as
required, he would suffer adverse health consequences. In addition, there was evidence
that . . . PHS employees delayed medical treatment for non-medical reasons—the PHS
policy that failed to address the immediate medication needs of inmates with serious
medical conditions.”). None of the individual PrimeCare Defendants’ acts and omissions
was sufficiently culpable to elevate his or her conduct from negligence to a constitutional
violation, including his or her failure to comply with PrimeCare’s policies and procedures
regarding verification of medication which, had they complied, would have resulted in Mr.
Barbaros receiving his medications two days earlier than he did. Plaintiffs were required to
prove by a preponderance of the evidence that one or more of the individual PrimeCare
Defendants acted “with the requisite state of mind when providing the inadequate care.”
Pearson, 850 F.3d at 538 (emphasis added) (citing Durmer, 991 F.2d at 69 n.13). Plaintiffs
failed to do so, and no reasonable jury could find otherwise.
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Viewed in the light most favorable to the Plaintiffs, a reasonable jury could conclude that
in 2009 while working at the MCCF, the individual PrimeCare Defendants (all licensed
practical nurses) were subjectively aware that the failure to: (1) complete medical charts and
obtain full and accurate information about a patient; (2) follow medical orders to take blood
pressure and give medications; and (3) review a patient’s medical chart and investigate his
condition, all increase the risk of harm to a patient. A reasonable jury could also conclude
that the individual PrimeCare Defendants knew that delaying or denying a patient access to
his medications, among other things, increases the risk of harm to a patient. This
knowledge, without more, was insufficient evidence to find deliberate indifference to a
serious medical need. No reasonable jury could conclude that, at the time each of the
individual PrimeCare Defendants provided care to Mr. Barbaros, that they, (despite their
knowledge that these failures could increase the risk of harm to a patient), nevertheless
knowingly disregarded an excessive risk to Mr. Barbaros’ health and safety. See BeersCapitol, 256 F.3d at 131 (The “requirement of actual knowledge means that the ‘official must
both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.’”) (quoting Farmer, 511 U.S. at
842). Nor could a reasonable jury conclude that any of the individual PrimeCare Defendants
“knew of a substantial risk from the very fact that risk is obvious.” Id. While, in retrospect, it
may be “obvious” to the individual PrimeCare Defendants that their negligent acts and
omissions increased the risk of harm to Mr. Barbaros, no reasonable jury could conclude
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that any of the individual PrimeCare Defendants had a sufficiently culpable state of mind at
the time they provided care to Mr. Barbaros to impose liability.34
The uncontroverted evidence presented to the jury, viewed in the light most favorable to
the Plaintiffs, was that Mr. Barbaros had access to medical care and received treatment
from multiple medical personnel on multiple occasions. Nurse James documented that Mr.
Barbaros was taking psychiatric medications, identifying his prescribing physician and the
name of the pharmacy he used to fill these prescriptions, among other things. This
information was relayed to Nurse Bauer, who attempted to address Mr. Barbaros’ needs by
calling CVS, but was unable to verify his medications. Nurse Bauer then, rather than
ignoring his needs, placed Mr. Barbaros on a list to see a mental health provider. Nurse
Ramos, using the same information provided to Nurse Bauer by Nurse James, called CVS
and was able to verify his medications. She then called Dr. Thomas to obtain the
prescriptions to address Mr. Barbaros’ needs. The same is true for the acts and omissions
of Nurse Rowe. Nurse Rowe would or should have been aware from reviewing the medical
chart that Mr. Barbaros took psychiatric medications and had been without them for several
days, but there was no evidence that she knew of, and disregarded, an excessive risk of
harm. Nurse Rowe performed an assessment of Mr. Barbaros in response to his sick call
The fact that Plaintiffs’ correctional nursing expert, Kathy Wild, testified (or attempted to testify) that
each of the individual PrimeCare Defendants was “subjectively aware,” or “deliberately indifferent” to Mr.
Barbaros’ serious medical needs does not change the Court’s conclusion that no reasonable jury could find
Mr. Barbaros liable under section 1983. Sept. 8, 2016 Trial Tr. at 258:25-259:11. The Court sustained
counsel for the PrimeCare Defendants’ objection, and did not permit Nurse Wild to opine on whether the
acts and omissions of the individual PrimeCare Defendants were, in her opinion, deliberately indifferent.
34
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request and provided him with medication to address his headache. She also informed a
physician’s assistant that Mr. Barbaros was suffering from high blood pressure and obtained
Lopressor and orders for blood pressure checks as a result.
A reasonable jury could find each of the individual PrimeCare Defendants liable in
negligence. But no reasonable jury could impose liability for violations of Mr. Barbaros’
constitutional rights based on acts and omissions exhibiting deliberate indifference to his
serious medical needs. Viewing the evidence in the light most favorable to the Plaintiffs,
there is no doubt that each of the individual PrimeCare Defendants could have and should
have acted differently and done more. Their acts and omissions breached the standard of
care and contributed to a situation where Mr. Barbaros was placed at an increased risk of
suicide. But each of the individual PrimeCare Defendants took steps to ensure Mr.
Barbaros received care and there was insufficient evidence to conclude that any of them
intentionally, knowingly, or recklessly disregarded his needs. These actions, though
inadequate, do not demonstrate intentional or reckless “disregard for Mr. Barbaros’
diagnosis that required him to take Paxil,” nor do they demonstrate that they “intentionally
and recklessly ignored or disregarded obvious symptoms of withdrawal.” No reasonable
jury could find intentional or reckless “failure to ensure proper dosing.” Nor could any
reasonable jury find that any of the individual PrimeCare Defendants “intentionally or
recklessly failed to monitor” Mr. Barbaros.
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In sum, the evidence presented to the jury, viewed in the light most favorable to the
Plaintiffs, was insufficient for the jury to reasonably conclude that Nurse James, Nurse
Bauer, Nurse Rowe, or Nurse Ramos violated Mr. Barbaros’ constitutional right to adequate
medical care. Accordingly, the jury’s verdict cannot stand, and the Court will grant the
individual PrimeCare Defendants’ renewed motion for judgment as a matter of law.
2.
Dr. Alex Thomas
Dr. Thomas also renewed his motion for judgment as a matter of law pursuant to Rule
50(b). Before the case was submitted to the jury, Dr. Thomas timely moved for judgment as
a matter of law pursuant to Rule 50(a). Sept. 13, 2016 Trial Tr. at 14:23-20:4; Sept. 14,
2016 Trial Tr. at 62:19-20. He did not and does not claim that he was not a state actor for
purposes of liability under section 1983. Rather, he claims that there was insufficient
evidence from which a jury could reasonably conclude his acts and omissions deprived Mr.
Barbaros of his constitutional right under the Fourteenth Amendment to adequate medical
care. Like the individual PrimeCare Defendants, whose Rule 50(a) motion only claimed
there was insufficient evidence for the jury to reasonably conclude that they acted or failed
to act in conscious disregard of Mr. Barbaros’ serious medical need, Dr. Thomas’ motion
also only addressed insufficient state of mind evidence, and did not allege insufficient
evidence from which a jury could find that Mr. Barbaros had a serious medical need. Sept.
13, 2016 Trial Tr. at 14:23-20:4. In his Rule 50(b) motion, he nevertheless challenges the
sufficiency of the evidence that Mr. Barbaros had a serious medical need. Because Dr.
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Thomas did not raise this issue in a Rule 50(a) motion, he has waived his challenge to the
insufficiency of the evidence on this issue, and cannot now raise it for the first time in his
Rule 50(b) motion.35
Because Mr. Barbaros had a “serious medical need,” Dr. Thomas may be liable if he
acted, or failed to act, with deliberate indifference to that need.36 If there was sufficient
evidence from which a reasonable jury could conclude that Dr. Thomas acted, or failed to
In any event, a jury could reasonably conclude that Mr. Barbaros had a serious medical need. In a
memorandum opinion denying Dr. Thomas’ motion for summary judgment, the Court noted that Dr.
Thomas “does not challenge whether Barbaros had a serious medical need.” (Doc. 177, at 10 n.5). The
Court then concluded that Mr. Barbaros’ “medical needs with respect to his mental health and the
appropriate management of his psychiatric prescriptions were serious.” Id. at 10. A “serious medical
need” is “one that has been diagnosed by a physician as requiring treatment or one that is so obvious that
a lay person would easily recognize necessity for a doctor’s attention.” Monmouth Cnty. Corr. Institutional
Inmates v. Lazaro, 834 F.2d 326, 347 (3d Cir. 1987) (citations omitted). If the delay or denial of adequate
medical care results in the unnecessary and wanton infliction of pain, or causes an inmate to suffer a lifelong handicap or permanent loss, the medical need is ‘serious.’” Id. “[A] mental illness may constitute a
serious medical need.” Torres v. Yocum, Civil No. 3:11-CV-1582, 2014 WL 2459676, at *5 (M.D. Pa. May
30, 2014) (citations omitted).
35
Viewing the evidence in the light most favorable to the Plaintiffs, a reasonable jury could conclude that
Mr. Barbaros had a serious medical need. First, Plaintiffs presented evidence that Mr. Barbaros’ mental
health needs had been diagnosed by a physician as requiring treatment, and that he took medications for
those needs. Second, Plaintiffs presented evidence that Mr. Barbaros’ medications were related to his
serious medical needs, and that the need to appropriately manage and continue these medications was a
serious medical need. Accordingly, there was sufficient evidence for a reasonable jury to conclude that Mr.
Barbaros had a serious medical need.
Although the jury was not instructed in accordance with the “particular vulnerability to suicide”
framework, had the jury been instructed in this fashion, there would have been insufficient evidence from
which they reasonably could conclude either that Mr. Barbaros had a “particular vulnerability to suicide” or
that any of the Defendants were deliberately indifferent to his particular vulnerability. “In essence, a
‘particular vulnerability to suicide’ is just one type of ‘serious medical need.’” Palakovic, 854 F.3d at 222
(quoting Colburn, 946 F.3d at 1023). No reasonable jury could conclude that: (1) Mr. Barbaros “had a
particular vulnerability to suicide, meaning that there was a strong likelihood, rather than a mere possibility
that a suicide would be attempted”; (2) any of the Defendants “knew or should have known of” Mr.
Barbaros’ “particular vulnerability”; and (3) any of the Defendants “acted with reckless or deliberate
indifference, meaning something beyond mere negligence” to Mr. Barbaros’ “particular vulnerability.” Id. at
223-24.
36
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act, with deliberate indifference to Mr. Barbaros’ serious medical need, the jury’s verdict
must stand.
After careful review of the record, and viewing all the evidence in the light most favorable
to the Plaintiffs, the Court concludes that there was insufficient evidence from which a
reasonable jury could find that Dr. Thomas’ acts and omissions with respect to his treatment
of Mr. Barbaros constituted deliberate indifference to Mr. Barbaros’ serious medical needs.
Again, the Court finds instructive counsel for the Plaintiffs’ argument in opposition to Dr.
Thomas’ Rule 50(a) motion:
With respect to Dr. Thomas, I would direct the Court’s attention to the case of
Tillery v. Owens, 719 F. Supp. 1256, Western District of PA from 1989, and
the reason I know about that case is because I had a very similar case not
long ago that I tried in the Eastern District, Your Honor, and that was an
instruction given to the jury.
And the instruction given to the jury in that case is that a doctor, a medical
provider is deliberately indifferent when the medical provider fails to conduct
any investigation sufficient to make an informed decision on patient care.
I mean, we all heard the silence in the room when Dr. Thomas started to
blame Nurse Ramos and said that she didn’t give me the information. Then I
said, Well, you didn’t ask. He fully admitted that he did not ask. And then I
asked him—I asked him and he admitted that the psychiatrist, as the medical
doctor, is the ultimate protector here because he’s the one with the specialty
and knowledge, much more so than the nurse.
So I said, Well, whose fault is it? Is it Nurse Rowe’s fault? No. Is it your
fault? Yes. It doesn’t get more—you don’t get more of an admission than
what Dr. Thomas said on the stand, which is that he didn’t ask a single thing
about his patient. I said in my opening, and Mr. Hill took offense to it, that Dr.
Thomas acted, basically, as a robotic medical dispenser, but guess what?
That’s what he admitted on the stand.
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He did no investigation, and if he had, he would have known that this man
said he had been taking Paxil and Trazodone, hadn’t received it in at least
three days—and by the way, this goes to the very next point, and it relates to
Paul James.
Sept. 13, 2016 Trial Tr. at 25:20-21:15.37
Viewing all the evidence in the light most favorable to the Plaintiffs, a reasonable jury
could conclude that the extent of Dr. Thomas’ involvement in the care and treatment of Mr.
Barbaros was approximately one minute or less and took place over the telephone at
approximately 10 p.m. on March 20, 2009. A reasonable jury could conclude that Dr.
Thomas did not ask Nurse Ramos for any specific information about Mr. Barbaros. He did
not ask when Mr. Barbaros last took his medications, how long he had been incarcerated,
whether he was scheduled to see a mental health provider, or whether he was experiencing
any physical symptoms that might indicate withdrawal. A reasonable jury could conclude
that, had he done so, Dr. Thomas would have realized that Mr. Barbaros’ symptoms and the
length of time he had been off his medications suggested withdrawal and should have
ordered him to be monitored (at least until he was scheduled to come into the MCCF two
days later). Despite his failure to conduct an adequate investigation of Mr. Barbaros’ history
and condition, Dr. Thomas prescribed Mr. Barbaros both Paxil and Trazodone in the same
dosages he had been previously prescribed by Dr. Katz based on Nurse Ramos’
verification. A reasonable jury could also have found that, consistent with Dr. Thomas’ own
Although Plaintiffs insisted on a jury instruction that a prison doctor could be held liable for deliberate
indifference when he or she “fails to conduct any investigation sufficient to make an informed decision on
patient care,” the Court disagreed that such a theory of liability would be appropriate on the facts of this case.
37
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testimony, he was aware in 2009 of the importance of obtaining all relevant information prior
to prescribing a patient psychiatric medication for the first time. A reasonable jury could
also find that Dr. Thomas knew that prescribing a patient Paxil for the first time increases
the risk of suicide. This evidence, without more, was insufficient for a reasonable jury to find
that Dr. Thomas acted, or failed to act, with deliberate indifference to Mr. Barbaros’ serious
medical need.
As discussed, Plaintiffs alleged, and the jury was instructed, on four separate theories of
deliberate indifference: that Dr. Thomas (1) ignored a diagnosed medical condition that
required Mr. Barbaros to take Paxil; (2) ignored and/or disregarded obvious symptoms that
showed Mr. Barbaros was suffering from medication withdrawal; (3) failed to ensure proper
dosing when restarting Mr. Barbaros’ medication; and (4) failed to monitor Mr. Barbaros.
Viewing all the evidence in the light most favorable to the Plaintiffs, no reasonable jury
could find that Dr. Thomas ignored Mr. Barbaros’ diagnosed medical condition that required
him to take Paxil. To the contrary, after Nurse Ramos informed him that she had verified
Mr. Barbaros’ medications, Dr. Thomas promptly prescribed those very same medications in
the same dosages. This does not under any circumstances constitute deliberate
indifference to Mr. Barbaros’ serious medical needs.
Nor was there sufficient evidence from which the jury could reasonably conclude that Dr.
Thomas ignored and/or disregarded “obvious symptoms” that showed Mr. Barbaros was
suffering from medication withdrawal. As an initial matter, like Nurse Ramos, Dr. Thomas
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did not know Mr. Barbaros was displaying symptoms of withdrawal because he negligently
failed to ask for information about his condition. There was no evidence that he knowingly
failed to ask this information, or that this conduct was anything other than negligence. Thus,
it follows that a jury could not reasonably conclude he was aware of, and disregarded, an
excessive risk of harm to Mr. Barbaros. Nor could the jury infer that Dr. Thomas “knew of a
substantial risk from the very fact that the risk was obvious.” Beers-Capitol, 256 F.3d at 131.
It is true that Dr. Thomas should have asked for some information about Mr. Barbaros prior
to prescribing him medication, as Dr. Thomas himself testified. Had he done so, he would
have been able to connect-the-dots and appropriately address Mr. Barbaros’ needs. But
there was simply no evidence from which the jury could reasonably infer that, at the time he
prescribed the medications to Mr. Barbaros, Dr. Thomas knowingly failed to ask for any
information about Mr. Barbaros, in conscious disregard of an excessive risk of harm to Mr.
Barbaros’ health and safety. A medical provider’s failure to ask for sufficient information
which, in turn, makes him unable to engage in the necessary diagnostic analysis, without
more, does not show deliberate indifference—let alone “intentionally or recklessly
disregarding obvious symptoms” that a patient was suffering from medication withdrawal.
A reasonable jury could also not conclude that Dr. Thomas, with deliberate indifference,
“failed to ensure proper dosing” when restarting Mr. Barbaros on Paxil. A reasonable jury
could conclude that Dr. Thomas did not conduct any investigation of Mr. Barbaros’ medical
history or condition prior to prescribing the Paxil, and if he had, he would have realized that
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due to the short half-life of Paxil (of which he was aware) the medication would have been
out of his system and, thus, he should have started Mr. Barbaros on a lower dose. The jury
also could reasonably have concluded that this act, among others, increased the risk of
harm and contributed to his suicide. But no reasonable jury could find that, by continuing a
patient on medications in the same doses as he had been previously prescribed and was
requesting, constituted deliberate indifference to a serious medical need. Allegations that
prison medical personnel failed to diagnose or properly treat a medical condition do not
demonstrate deliberate indifference. Pearson, 850 F.3d at 538. Dr. Thomas testified that, in
his medical judgment, he did not believe it was necessary to start Mr. Barbaros on a lower
dosage of Paxil because Nurse Ramos had verified he was prescribed 30mg Paxil by
another physician. He also testified that his immediate concern was to get Mr. Barbaros
access to the same medications he was taking outside of prison. Although Dr. Thomas’
medical judgment could have been better informed, these acts and omissions do not
constitute deliberate indifference. Viewing the evidence in the light most favorable to the
Plaintiffs, no reasonable jury could conclude that Dr. Thomas, with deliberate indifference,
failed to ensure proper dosing when restarting Mr. Barbaros on Paxil.
The only way the jury could reasonably find Dr. Thomas liable, then, was if there was
sufficient evidence from which they could infer that Dr. Thomas failed to monitor Mr.
Barbaros, in conscious disregard of an excessive risk to his health and safety. A reasonable
jury could, consistent with Dr. Thomas testimony, find that at the time Dr. Thomas
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prescribed Paxil to Mr. Barbaros, he was aware that prescribing Paxil to a patient can
increase the risk of suicidal ideations and that a patient resuming Paxil for the first time
should be monitored. The jury could also infer that, had Dr. Thomas investigated Mr.
Barbaros’ condition, he would have known he was exhibiting withdrawal symptoms and
connected that with the failure to receive Paxil for at least several days. But no reasonable
jury could find that Dr. Thomas failed to monitor Mr. Barbaros, in conscious disregard of an
excessive risk of harm to his health and safety.
Although Dr. Thomas testified that he was aware that prescribing a patient Paxil
increases the chances that the patient may commit suicide, there was no testimony that the
risk of suicide associated with prescribing Paxil was an excessive risk. Indeed, Dr. Thomas
testified that he was aware there was only some risk, and that it was his understanding this
risk was associated with patients who are starting the medication for the first time (which Mr.
Barbaros was not). Both Plaintiffs and Defendants’ experts, too, presented testimony from
which no reasonable juror could conclude that simply prescribing a patient Paxil puts them
at an excessive risk of suicide. This “excessive risk,” then, was neither known to Dr.
Thomas nor obvious. Regardless of whether the Court applies the “inadequate medical
care” or “particular vulnerability to suicide” framework, Plaintiffs’ claim fails. Although
consideration of the totality of the facts and circumstances of Mr. Barbaros’ case, which Dr.
Thomas negligently failed to adequately investigate, should have suggested to him the need
to monitor Mr. Barbaros until, at least, he met with him in person two days later, they do not
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demonstrate that Dr. Thomas knowingly failed to monitor Mr. Barbaros, in conscious
disregard of an excessive risk of harm.
For these reasons, and for the reasons set forth in this opinion granting the individual
PrimeCare Defendants’ renewed motion for judgment as a matter of law, viewing all of the
evidence in the light most favorable to the Plaintiffs, no reasonable jury could find that Dr.
Thomas’ one minute phone call prescribing Mr. Barbaros the very medication he requested,
and the negligent omissions that preceded and followed, violated Mr. Barbaros’
constitutional rights under the Fourteenth Amendment. There was insufficient evidence that
Dr. Thomas acted, or failed to act, with a sufficiently culpable state of mind to take this case
out of the realm of negligence and into the realm of deliberate indifference to a serious
medical need. Dr. Thomas’ renewed motion for judgment as a matter of law will be granted.
*
*
*
After careful consideration of the evidence presented at trial, and viewing all the
evidence in the light most favorable to the Plaintiffs, the record shows that over the course
of the approximately four days Mr. Barbaros was a pretrial detainee at the MCCF, he
personally met with two members of the nursing staff (Nurse James and Nurse Rowe) and
also met with a PrimeCare mental health care provider (William Buffton). Four other
members of the medical department employed by, or associated with, PrimeCare, were
involved in the treatment of his medical needs (Nurse Bauer, Nurse Ramos, Wendy
Johnson, and Dr. Thomas). Although the care he received was, as the jury found, negligent
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and a factual cause of his suicide, no reasonable jury could conclude that the acts and
omissions of any of the individual Defendants violated Mr. Barbaros’ constitutional right to
adequate medical care. There was no evidence that any of the individual Defendants
denied or delayed treating Mr. Barbaros for non-medical reasons. Rather, any denial or
delay in treatment was the result of a series of negligent acts and omissions, not deliberate
indifference to Mr. Barbaros’ serious medical needs. Nor was there any evidence that any
of the individual Defendants knew of Mr. Barbaros’ need for medical care, but intentionally
refused to provide it. And there was no evidence that any of the individual Defendants, with
deliberate indifference, prevented Mr. Barbaros from receiving recommended treatment for
his serious medical needs. Viewing all of the evidence in the light most favorable to the
Plaintiffs, there was insufficient evidence from which the jury could reasonably infer that any
of these individuals knew of, and disregarded, an excessive or obvious risk to Mr. Barbaros’
health and safety.
3.
PrimeCare Medical, Inc.
At the close of Plaintiffs’ case-in-chief, PrimeCare orally moved for judgment as a matter
of law on Plaintiffs’ § 1983 claim. Sept. 13, 2016 Trial Tr. at 12:7-14:3. PrimeCare now
renews its motion, claiming that no reasonable jury could find it liable based on the evidence
presented at trial. In support of this assertion, PrimeCare tersely states that because none
of the individual Defendants violated Mr. Barbaros’ constitutional right to adequate medical
care, it necessarily follows that PrimeCare cannot be liable under City of Los Angeles v.
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Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam). In opposition to
PrimeCare’s renewed motion, Plaintiffs simply claim that PrimeCare is liable because its
employees and agents violated Mr. Barbaros’ constitutional rights. Neither PrimeCare nor
Plaintiffs are entirely correct.
In Heller, the Supreme Court, in a three page per curiam opinion, held that because a
jury found a police officer did not use excessive force and absolved him from liability under
§ 1983, it necessarily followed that the municipality could not be liable under the
circumstances. Because the police officer did not inflict a constitutional injury on the plaintiff,
the municipality could not be held liable for damages under § 1983.38 Despite the wellsettled rule that a municipality cannot be liable under § 1983 where there is no underlying
constitutional violation, the Third Circuit has repeatedly held that an underlying constitutional
violation committed by an employee or agent of a municipality is not a necessary
prerequisite to imposing § 1983 liability against a municipality where, as here, Plaintiffs
claimed constitutional deprivation arises under the Fourteenth Amendment’s substantive
due process clause.39
On numerous occasions the Third Circuit has held that an underlying constitutional violation
committed by an individual employee/agent is a necessary prerequisite to holding a municipality liable
under § 1983. See, e.g., Mulholland v. Govt. Cnty. Of Berks Pennsylvania, 706 F.3d 231, 238 n.15 (3d Cir.
2013) (“It is well-settled that, if there is no violation in the first place, there can be no derivative municipal
claim.”) (citing Heller, 475 U.S. at 799)); Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d
Cir. 2003) (where there is no underlying constitutional violation “Heller precludes a finding of municipality
against the City. This conclusion follows naturally from the principle that municipal liability will only lie
where municipal action actually caused injury”) (citations omitted).
38
See, e.g., Brown v. Commonwealth of Pennsylvania Dept. of Health Emergency Med. Servs.
Training Institute, 318 F.3d 473, 482 (3d Cir. 2002) (“It is possible for a municipality to be held
39
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There are other instances where a municipality may be liable for its own conduct even
when it is found that its employees or agents did not violate the constitution. See Thomas v.
Cumberland Cnty., 749 F.3d 217 (3d Cir. 2014) (reversing grant of summary judgment in
favor of county on failure to train theory after jury absolved officers of liability and plaintiffs
did not appeal the verdict, instead appealing only grant of summary in favor of
county); Natale, 318 F.3d at 575 (reversing district court grant of summary judgment to
county where plaintiffs did not appeal grant of summary judgment in favor of individual
officers and remanding for trial on whether policy or custom of prison healthcare provider
deprived plaintiff of right to adequate medical care); Simmons v. City of Philadelphia, 947
F.2d 1042, 1063 (3d Cir. 1991) (municipality’s liability under section 1983 for suicide of
pretrial detainee did not depend upon an individual officer’s liability because municipal
policymakers, rather than individual officer, were the city actors whose primary liability must
be established in order to hold city liable under section 1983 for failure to train). Rather than
wade into this thicket, though, for purpose of PrimeCare’s Rule 50(b) motion the Court will
independently liable for a substantive due process violation even in situations where none of its employees
are liable.”); Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996) (“The precedent in our circuit requires the
district court to review the plaintiffs’ municipal liability claims independent of the section 1983 claims against
the individual police officers, as the City’s liability for a substantive due process violation does not depend
on the liability of any police officer.”); Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994) (en
banc) (“[W]e do not believe that Heller can be applied to a substantive due process claim directly against a
municipality. Indeed, the Supreme Court itself drew a line between a claim for Fourth Amendment
violations and one for substantive due process violations. . . . We hold that in a substantive due process
case arising out of a police pursuit, an underlying constitutional tort can still exist even if no individual police
officer violated the Constitution.”). Fagan’s holding has been strictly confined to police pursuits and is of
little use for present purposes. Kneipp, 95 F.3d at 1207-08. Unlike a substantive due process claim
involving a police pursuit where the standard of liability for the individual police officers and the municipal
are different (i.e., shocks the conscience vs. deliberate indifference), here, the standards are the same.
110
assume that Mr. Barbaros was deprived of his Fourteenth Amendment right to adequate
medical care.40 Even if the Court assumes there was sufficient evidence for a reasonable
jury to find a constitutional deprivation, for the reasons set forth below, no reasonable jury
could conclude that PrimeCare had a policy, practice, or custom that caused a violation of
Mr. Barbaros’ Fourteenth Amendment rights.
a.
PrimeCare’s Policy, Practice, or Custom
A prison healthcare provider like PrimeCare can be liable under § 1983 if the plaintiffs
“can provide evidence that there was a relevant . . . policy or custom, and that the policy
caused the constitutional violation he alleges.” Lee v. Abellos, Civil Action No. 13-0486,
2014 WL 7271363, at *9 (E.D. Pa. Dec. 19, 2014) (citing Brown, 520 U.S. at 404); see
also Natale, 318 F.3d at 583-84. A policy is an official “statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers.” Monell v. Dept. of
Social Servs. Of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). “A custom is an act ‘that has not been formally approved by an appropriate
decisionmaker,’ but that is ‘so widespread as to have the force of law.’” Natale, 318 F.3d at
583 (quoting Brown, 520 U.S. at 404)). In either case, the plaintiff “must show that an
The Court has already found that none of the individual Defendants violated Mr. Barbaros’
constitutional right and are entitled to judgment as a matter of law. It is possible, though unlikely, that Mr.
Buffton violated Mr. Barbaros’ constitutional rights by, among other things, failing to conduct a suicide
assessment or place Mr. Barbaros on monitoring. Mr. Buffton was dismissed from this case due to
insufficient service of process. Because PrimeCare could be liable for Mr. Buffton’s acts and omissions
under Pennsylvania law on a theory of ostensible agency, he was identified on the special verdict sheet.
The jury found him negligent. The jury was not required, however, to make a finding as to Mr. Buffton’s
liability under §1983.
40
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official who has the power to make policy is responsible for either the affirmative
proclamation of a policy or acquiescence in a well settled custom.” Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir. 1990) (citations omitted); see also Kneipp, 95 F.3d at 1212 (“[A]
prerequisite to establishing liability in either situation is a showing that a policymaker was
responsible either for the policy or, through acquiescence, for the custom.”) (citations
omitted). In order to qualify as a “policymaker for § 1983 purposes, an official must have
final policymaking authority.”41 LaVerdure v. Cnty. of Montgomery, 324 F.3d 123, 126 (3d
Cir. 2003) (emphasis in original).
There are three scenarios under which PrimeCare could be liable under § 1983. “The
first is where the appropriate officer or entity promulgates a generally applicable statement
of policy and the subsequent act complained of is simply an implementation of the
policy.” Natale, 318 F.3d at 584 (internal citation and quotation marks omitted). “The
second occurs where no rule has been announced as a policy but federal law has been
violated by an act of the policymaker itself.” Id. “Finally, a policy or custom may also exist
where the policymaker has failed to act affirmatively at all, though the need to take some
action to control the agents of the government is so obvious, and the inadequacy of existing
practice so likely to result in a violation of constitutional rights, that the policymaker can
Plaintiffs did not establish a PrimeCare policymaker at trial. However, PrimeCare never raised this
issue at trial and from the Court’s review of the record it appears PrimeCare has never raised this issue
before. Under the circumstances, Plaintiffs’ failure to identify a relevant policymaker is of no moment. See
Simmons, 947 F.2d at 1065-66 (municipality waived argument that plaintiffs failed to identify official with
policymaking authority by not raising issue at trial).
41
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reasonably be said to have been deliberately indifferent to that need.” Id. The jury was
instructed in accordance with the third theory of liability and found PrimeCare liable.
Specifically, Plaintiffs alleged that: (1) PrimeCare failed to adopt and implement policies,
practices, and procedures to ensure inmates receive proper medical care (including followup care from medical specialists), and failed to adopt policies to ensure that inmates are
placed on a suicide watch when necessary; (2) PrimeCare had a policy or custom of
inadequately training the medical staff at the MCCF; and (3) PrimeCare had a policy or
custom of failing to supervise the medical staff. The Court will address each in turn.
i.
Failure to Adopt Needed Policy
Only in a narrow set of circumstances can the failure to adopt a policy be found so
obvious that it can properly be characterized as deliberate indifference to the constitutional
rights of the persons with whom a municipality’s employees or agents come into contact.
See Natale, 318 F.3d at 575 (failure to adopt policy ensuring diabetic pretrial detainees
receive insulin within 72 hours of admission sufficient for a reasonable jury to find deliberate
indifference). In Natale, the Third Circuit reversed the district court’s order granting
summary judgment to a prison healthcare provider after concluding that the prison
healthcare provider’s failure to adopt a needed policy could reasonably be considered
“sufficiently obvious as to constitute deliberate indifference to those inmate’s medical
needs.” Id. at 584. The Court found the failure to adopt such a policy was a “particularly
glaring omission in a program of medical care,” which suggested the healthcare provider
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“turned a blind eye to an obviously inadequate practice that was likely to result in the
violation of constitutional rights.” Id. Thus, “[a] reasonably jury could conclude that the
failure to establish a policy to address the immediate medication needs of inmates with
serious medical conditions creates a risk that is sufficiently obvious as to constitute
deliberate indifference to those inmates’ medical needs.” Id. at 585.
The Court has reviewed the record and is unable to locate any policy or procedure that
PrimeCare failed to adopt that created such an obvious risk that would be sufficient for the
jury to infer deliberate indifference to the constitutional rights of detainees. Cf. Natale, 318
F.3d at 584-85. Viewing all the evidence in the light most favorable to the Plaintiffs, no
reasonable jury could find PrimeCare liable for failing to adopt a needed policy. Plaintiffs’
own correctional nursing expert, Kathy Wild, testified that PrimeCare’s policies and
procedures were adequate, appropriate, and met the standard of care. Nurse Wild’s issue,
though, was with PrimeCare’s failure to supervise the nursing staff to enforce its adequate
policies and procedures. Specifically, Nurse Wild testified: “Well, the policies are fine, I see
lots of policies and procedures written based on the standards that are put out by the
National Commission and the American Correctional Association, but it’s the follow-through,
it’s whether we’re monitoring whether that’s happening or not.” Sept. 8, 2016 Trial Tr. at
250:12-19.
Nurse Wild’s testimony, among other evidence presented at trial, did not provide the jury
with a reasonable basis to conclude that PrimeCare failed to adopt a needed policy, let
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alone a policy whose need was sufficiently obvious that a failure to adopt it would constitute
deliberate indifference to inmate’s constitutional rights. There is simply no evidence that
PrimeCare “turned a blind eye to an obviously inadequate practice that was likely to result in
the violation of constitutional rights.” Natale, 318 F.3d at 584. Nor was there any evidence
or argument addressing a specific policy that PrimeCare failed to adopt that Plaintiffs
believed was sufficiently obvious that PrimeCare’s failure to do so rose to the level
deliberate indifference. Accordingly, no reasonable jury could find PrimeCare liable based
on its alleged failure to adopt a needed policy.
ii. Failure to Train/Supervise
The Court next considers whether there was sufficient evidence for the jury to conclude
that PrimeCare failed to train and/or supervise its employees/agents.
“In limited circumstances, a local government’s decision not to train certain employees
about their legal duty to avoid violating citizens’ rights may rise to the level of an official
government policy for purposes of §1983.” Connick v. Thompson, 563 U.S. 51, 60, 131
S.Ct. 1350, 179 L.Ed.2d 417 (2011). However, “[a] municipality’s culpability for a
deprivation of rights is at its most tenuous when a claim turns on a failure to train” or
supervise. Id. A failure to train or supervise “must amount to deliberate indifference to the
rights of persons with whom the untrained employees come into contact.” Id. at 61 (internal
citation and quotation marks omitted). “[D]eliberate indifference is a stringent standard of
115
fault, requiring proof that a municipal actor disregarded a known or obvious consequence of
his action.” Brown, 520 U.S. at 410.
Where, as here, Plaintiffs sought to impose liability against PrimeCare based on its
failure to train or supervise, “[a] pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of
failure to train.” Connick, 563 U.S. at 62 (quoting Brown, 520 U.S. at 409). “Policymakers’
continued adherence to an approach that they know or should know failed to prevent
tortious conduct by employees may establish the conscious disregard for the consequence
of their action – the deliberate indifference – necessary to trigger municipal liability.” Id.
“Without notice that a course of training is deficient in a particular respect, decisionmakers
can hardly be said to have deliberately chosen a training program that will cause violations
of constitutional rights.” Id. (emphasis added)(internal citation and quotation marks omitted).
Plaintiffs did not present any evidence of a pattern of constitutional violations by
PrimeCare employees/agents at the MCCF.42 Therefore, in order for PrimeCare to be liable
on this theory of liability, PrimeCare’s failure to train or supervise must amount to a policy or
custom in disregard of an obvious risk that its employees or agents would commit
constitutional violations. Only in the narrowest of circumstances can a failure to train or
supervise “said to be so obvious, that failure to do so could properly be characterized as
As the Court recognized in a memorandum opinion denying PrimeCare’s motion for summary
judgment, “Plaintiffs have adduced no evidence in this case that there was a pattern of similar constitutional
violations that had occurred at the MCCF prior to Barbaros’ incarceration and suicide.” (Doc. 175, at 31).
“Plaintiffs, therefore, must show that this case fits the so-termed ‘single incident’ failure-to-train theory of §
1983 municipal liability.” (Doc. 175, at 31) (citing Thomas, 749 F.3d at 223).
42
116
deliberate indifference to constitutional rights even without a pattern of constitutional
violations.” Thomas, 749 F.3d at 223 (internal citation and quotation marks omitted). “To
determine whether a municipality’s alleged failure to train [or supervise] its employees
amounted to a deliberate or conscious choice, it must be shown that ‘(1) municipal
policymakers know that employees will confront a particular situation; (2) the situation
involves a difficult choice or a history of employees mishandling; and (3) the wrong choice
by an employee will frequently cause deprivation of constitutional rights.’” Doe v. Luzerne
Cnty., 660 F.3d 169, 179-80 (3d Cir. 2011) (quoting Carter v. City of Philadelphia, 181 F.3d
339, 357 (3d Cir.1999)).
Viewing all the evidence in the light most favorable to Plaintiffs, no reasonable jury could
find PrimeCare liable for failure to train or supervise its employees/agents. To impose
liability under § 1983, PrimeCare’s “failure to train its employees in a relevant respect must
amount to deliberate indifference to the rights of persons with whom the untrained
employees come into contact.” Connick, 563 U.S. at 63 (emphasis added) (internal citation
and quotation marks omitted). Plaintiffs were required to: (1) “identify specific training” or
supervision “not provided that could reasonably be expected” to avoid the constitutional
injury; and (2) “demonstrate that the risk reduction associated with the proposed training” or
supervision program “is so great and so obvious that the failure of those responsible for the
content of the training” or supervision “program to provide it can reasonably be attributed to
117
a deliberate indifference” to the constitutional rights of others. Woloszyn v. Cnty. of
Lawrence, 396 F.3d 314, 325 (3d Cir. 2005) (internal citation and quotation marks omitted).
Plaintiffs did not present any evidence about an identified deficiency in the training or
supervision PrimeCare provided to employees and agents sufficient to impose liability. See
Buoniconti v. City of Philadelphia, 148 F. Supp. 3d 425, 441 (E.D. Pa. 2015) (“Without an
‘identified’ deficiency” in a training or supervision program, plaintiffs’ failure-to-train claim
must necessarily fail) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 391, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989)). The evidence and arguments Plaintiffs presented attacking
PrimeCare’s training and supervision of its employees/agents were “as broad and general
as they are conclusory.” Woloszyn, 396 F.3d at 325; see also Arnold v. City of Philadelphia,
151 F. Supp. 3d 568, 580 (E.D. Pa. 2015) (plaintiff “has not articulated a policy or custom
that led to the violation of her constitutional rights, making only vague assertions about the
Philadelphia Police Department’s ‘historical lack of policies and training’ and culture. . .”)
(citing Santiago v. Warminster Twp., 629 F.3d 121, 135 n. 11 (3d Cir. 2010)). Plaintiffs’
failure to identify specific deficiencies in PrimeCare’s training or supervision provided the
jury with no reasonable basis to impose liability against PrimeCare. Cf. Thomas, 749 F.3d
at 223 (“The relevant policy for the purposes of municipal liability is the County’s decision
not to provide conflict de-escalation and intervention training as part of the pre-services
training for correctional officers.”).
118
Plaintiffs’ correctional nursing expert, Kathy Wild, not only did not criticize PrimeCare’s
policies and procedures she did not provide any testimony whatsoever regarding
PrimeCare’s training of its employees and agents, critical or otherwise. Nor did any other
expert or fact witness testify to this effect.43 Although Nurse Wild testified about
PrimeCare’s lack of supervision of the nursing staff, highlighting PrimeCare’s reliance on a
LPN to supervise the LPNs, this was not sufficient to impose liability on PrimeCare.
The evidence presented at trial showed that PrimeCare did train its nursing staff on a variety of
topics, including suicide prevention and withdrawal, among others. Although a reasonable jury could find
that PrimeCare could have and should have done more to train the nursing staff, no reasonable jury could
conclude that PrimeCare failed to provide any training whatsoever to the nursing staff at the MCCF, let
alone failed to provide obvious training necessary to avoid deprivation of constitutional rights. As discussed,
Plaintiffs’ expert Kathy Wild did not present any evidence that the training PrimeCare provided to the
nursing staff was inadequate, or present any evidence on what training should have been provided to avoid
constitutional violations. Cf. Thomas, 749 F.3d at 225 (plaintiffs’ expert opined that “the failure to provide
conflict de-escalation and intervention training was a careless and dangerous practice not aligned with
prevailing standards”). Nor did Dr. Breggin or any other fact or expert witness at trial provide testimony to
this effect. Todd Haskins testified that nursing staff at MCCF received, among other training, NCCHC
training, infectious disease training, suicide prevention, psychiatrist emergency training, and training on
withdrawal symptoms. Sept. 8, 2016 Trial Tr. at 186:20-187:7. Plaintiffs neither contested nor rebutted
Haskin’s testimony on this issue. Todd Haskins also testified at his deposition, which was read at trial, that
PrimeCare does not train its nurses “regarding what different types of medicines are and what impact they
have on the body.” Sept. 8, 2016 Trial Tr. at 127:11-23. This passing remark was neither elaborated on
nor criticized by any expert. It was not sufficient, without more, to impose § 1983 liability on PrimeCare
since it cannot be said to be obvious that the failure to train in this respect would frequently result in
deprivations of constitutional rights.
43
Plaintiffs also failed to present any evidence about PrimeCare’s failure to train and supervise Mr.
Buffton, other than the mere fact that Mr. Buffton was neither trained nor supervised by PrimeCare.
Plaintiffs did not present evidence of the contract between PrimeCare and FCS (or, for that matter, the
contract between PrimeCare and Monroe County). Nor did any expert testify that PrimeCare was required
to train and supervise Mr. Buffton or suggest any alternative training or supervision necessary. See
Woloszyn, 396 F.3d at 325 (“However, [plaintiffs’ expert] never identified specific training that could
reasonably have caused [correctional officer] to assess whether [decedent’s] behavior and demeanor
indicated that [decedent] posed a risk of suicide.”). PrimeCare’s expert, Dr. Wills, testified that she did not
think any training was necessary due to Mr. Buffton’s qualifications and experience as a correctional
psychologist working for the State for over a decade. Plaintiffs did not present evidence to the contrary.
And Plaintiffs most certainly did not offer any evidence about the specific training or supervision PrimeCare
should have provided to Mr. Buffton that would have prevented his negligent failure to recognize that Mr.
Barbaros was suffering from withdrawal and/or was suicidal.
119
Although Nurse Wild’s testimony was sufficient for the jury to conclude that there was some
risk of harm that reliance on a LPN to supervise other LPNs could cause a patient, “[b]ut
that is only a generalized showing of risk.” Brown, 520 U.S. at 410. The fact that
inadequate supervision “would make a violation of rights more likely cannot alone give rise
to an inference that a policymaker’s” failure to train or supervise “produced a specific
constitutional violation.” Id. at 411 (emphasis in original). Section 1983 liability in this
context cannot be based on a possibility or “mere probability” that an inadequately
supervised employee or agent will inflict constitutional injury. Id. Plaintiffs failed to present
evidence from which the jury could reasonably infer that a constitutional deprivation was the
“plainly obvious consequence” of PrimeCare’s failure to adequately train or supervise its
employees and agents. Id.
Even if the Court were to assume that Plaintiffs presented evidence of specific
deficiencies in PrimeCare’s training and supervision programs, which they plainly did not, the
evidence present was still insufficient to impose liability.44 “A municipality’s deliberately
indifferent failure to train” or supervise “is not established by (1) presenting evidence of the
shortcomings of an individual; (2) proving that an otherwise sound training program
“To determine whether a municipality’s alleged failure to train its employees amounted to a deliberate
or conscious choice it must be shown that ‘(1) municipal policymakers know that employees will confront a
particular situation; (2) the situation involves a difficult choice or a history of employee mishandling; and (3)
the wrong choice by an employee will frequently cause deprivation of constitutional rights.’” Doe, 660 F.3d
at 179-80 (quoting Carter, 181 F.3d at 357). “Liability in single-incident cases depends on “[t]he likelihood
that the situation will recur and that predictability that an officer lacking specific tools to handle that situation
will violate citizens’ rights.’” Thomas, 749 F.3d at 223-24 (quoting Brown, 520 U.S. at 409). No reasonable
jury could find PrimeCare liable applying these three factors based on the evidence presented at trial.
44
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occasionally was negligently administered; or (3) showing, without more, that better training
would have enabled an officer to avoid the injury-causing conduct.” Simmons, 947 F.2d at
1060. “[S]howing merely that additional training” or supervision “would have been helpful in
making a difficult decision does not establish municipal liability. Proving that an injury or
accident could have been avoided if an employee had better or more training, sufficient to
equip him to avoid the particular injury causing conduct will not suffice.” Connick, 563 U.S. at
68 (internal citation and quotation marks omitted). “Deliberate indifference is more than
simple negligence. It is a deliberate choice to follow a course of action that is made from
among various alternatives without regard to the known or obvious consequences.”45 Pelzer
v. City of Philadelphia, 656 F. Supp. 2d 517, 532 (E.D. Pa. 2009) (internal citation and
quotation marks omitted); see also Crouse v. South Lebanon Twp., 668 F. Supp. 2d 664, 676
(M.D. Pa. 2009) (“Even if the department’s custom were negligent . . . a Monell claim requires
more than a ‘showing of simple or even heightened negligence.’”) (quoting Brown, 520 U.S. at
407). “Only where a municipality’s failure to train” or supervise “its employees in a relevant
respect evidences a deliberate indifference to the rights of its inhabitants can such a
shortcoming be properly thought of as a city policy or custom that is actionable under § 1983.”
City of Canton, 489 U.S. at 389 (internal citation and quotation marks omitted). The evidence
Plaintiffs presented at trial, viewed in the light most favorable to them, makes clear that no
See Cook v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1116 (11th Cir. 2005) (“Whether the failure of
[defendant’s] employees to identify [decedent] as a suicide risk . . . amounts to negligence on their part is a
wholly different question.”)
45
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reasonable jury could find PrimeCare liable under § 1983 for failure to adopt a needed policy,
or failure to train and supervise its employees and agents.
b.
Section 1983 Causation
Finally, even if the Court were to assume that the evidence presented at trial permitted a
reasonable jury to find PrimeCare’s failure to train, supervise, or adopt a needed policy
amounted to deliberate indifference to the rights of persons with whom its employees and
agents would come into contact, no reasonable jury could find these failures were the direct
cause or “moving” force behind Mr. Barbaros’ injury. Where, as here, Plaintiffs claimed
injury resulted from a failure to train, supervise, or adopt a needed policy, “rigorous
standards of culpability and causation must be applied to ensure that the municipality is not
held liable solely for the actions of its employees.” Brown, 520 U.S. at 405. “To adopt lesser
standards of fault and causation would open municipalities to unprecedented liability under
§ 1983. In virtually every instance where a person has had his or her constitutional rights
violated by a city employee, a § 1983 plaintiff will be able to point to something the city
could have done to prevent the unfortunate accident.” City of Canton, 489 U.S. at 391-92
(internal citation and quotation marks omitted). Although the evidence presented at trial
was sufficient to establish causation under Pennsylvania negligence law, no reasonable jury
could find PrimeCare liable for causing Mr. Barbaros’ harm under § 1983.46
“That is why some courts distinguish between the acts that caused the injury and those that were
merely contributing factors.” Thomas v. Cook Cnty. Sheriff’s Dept., 604 F.3d 293, 306 (7th Cir. 2010)
(citing Rodriguez v. Sec’y of Dept. of Corr., 508 F.3d 611, 625 (11th Cir. 2007)).
46
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Plaintiffs “must ‘prove that the deficiency in training actually caused’” the deprivation of
Mr. Barbaros’ constitutional rights. Doe, 660 F.3d at 180 (quoting City of Canton, 489 U.S. at
391); see also Brown, 318 F.3d at 483 (although plaintiffs alleged municipal policies that
caused harm to their son, “[e]ven if we accept everything [plaintiffs] allege as true, they will
have still failed to establish that the City’s policies caused constitutional harm”) (emphasis in
original). “It is not enough that a municipality adopted with deliberate indifference a policy of
inadequately training its officers. There must be a ‘direct causal link’ between the policy and a
constitutional violation.” Brown, 318 F.3d at 482 (quoting City of Canton, 489 U.S. at 385)).
To “sustain a claim based on a failure to train” or supervise “theory, the identified
deficiency in the training” or supervision “program must be closely related to the ultimate
constitutional injury.” Thomas, 749 F.3d at 226 (internal citation and quotation marks
omitted). “Liability cannot rest only on a showing that the employees could have been better
trained” or supervised “or that additional training” or supervision “was available that would
have reduced the overall risk of constitutional injury.” Id. (internal citation and quotation
marks omitted). “Rather, the causation inquiry focuses on whether ‘the injury [could] have
been avoided had the employee been trained [or supervised] under a program that was not
deficient in the identified respect.’” Id. (quoting City of Canton, 489 U.S. at 391).
Plaintiffs were required to present evidence sufficient to “prove that the deficiency in the
training [or supervision] actually caused” the medical staff’s “indifference to [plaintiff’s]
medical needs.” City of Canton, 489 U.S. at 391. Put another away, “[w]ould the injury
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have been avoided had the employee been trained under a program that was not deficient
in the identified respect?” Id. Plaintiffs came nowhere close to satisfying this burden.
Simply suggesting a policy, training, or supervision that “would have reduced the overall risk
of constitutional injury” is not sufficient. Thomas, 749 F.3d at 226. For these reasons, and
viewing all the evidence in the light most favorable to the Plaintiffs, there was insufficient
evidence to support the jury’s verdict imposing liability under section 1983 against
PrimeCare. A mere scintilla of evidence, without more, will not suffice. Accordingly,
PrimeCare’s motion for judgment as a matter of law will be granted. 47
4. Conditional Ruling on Motion for New Trial
Both the PrimeCare Defendants and Dr. Thomas moved, in the alternative, for a new
trial on Plaintiffs’ deliberate indifference claim. Because the Court is granting the PrimeCare
Defendants and Dr. Thomas’ motions for judgment as a matter of law on Plaintiffs’
deliberate indifference claim, and because all of the Defendants alternatively sought a new
trial on this basis, the Court must conditionally rule on their motion for a new trial pursuant to
Federal Rule 50(c)(1). “When granting a motion for judgment as a matter of law, the district
court . . . is required to rule conditionally on any motion for a new trial.” Rhone Poulenc
Following the jury’s verdict Plaintiffs also filed a motion for attorneys’ fees requesting $621,158.28.
(Doc. 348). “A prevailing party in a § 1983 action is entitled to reasonable attorneys’ fees and costs under
42 U.S.C. § 1988.” Planned Parenthood of Cent. New Jersey v. Attorney General State of New Jersey,
297 F.3d 253, 265 n.5 (3d Cir. 2002). However, because the Court is granting the Defendants’ motions for
judgment as a matter of law with respect to Plaintiffs’ deliberate indifference claim, it follows that the Court
must deny Plaintiffs’ motion for attorneys’ fees as moot. See Galena v. Leone, 638 F.3d 186, 196 n.6 (3d
Cir. 2011) (“Unquestionably, inasmuch as the District Court granted [defendant] judgment as a matter of
law, [plaintiff’s] motions were moot because the losing party in a section 1983 action is not entitled to
attorney’s fees and costs.”).
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Rorer Pharm., Inc. v. Newman Glass Works, 112 F.3d 695, 698 (3d Cir. 1997) (citing Fed.
R. Civ. P. 50(c)(1)). “The court must determine whether the motion for a new trial should be
granted or denied if the judgment is thereafter vacated or reversed.” Id. “The court also
must specify the grounds for its conditional ruling.” Id.
The Court will conditionally deny the Defendants’ motions for a new trial on Plaintiffs’
deliberate indifference claim. No errors in the Court’s evidentiary rulings or jury instructions
warrant a new trial. Although Defendants have requested a new trial because the jury’s
verdict was against the weight of the evidence, the Court does not believe a new trial would
be warranted should the Court of Appeals reverse or vacate this Court’s order. In
Williamson v. Consolidated Rail Corp., 926 F.2d 1334 (3d Cir. 1991), the Third Circuit
overturned a district court’s order granting the defendant’s motion for judgment as a matter
of law and conditional ruling that the defendant would be entitled to a new trial because the
verdict was against the weight of the evidence. In doing so, the Court recognized:
Despite the limited nature of the district court’s discretion in granting a new
trial because the jury’s verdict is against the weight of the evidence, we
recognize that considerable deference remains due to that court’s
determination that a verdict is against the weight of the evidence. The trial
judge observes the witnesses and follows the trial in a way that we cannot
replicate by reviewing a cold record. Nevertheless, new trials because the
verdict is against the weight of the evidence are proper only where the record
shows that the jury’s verdict resulted in a miscarriage of justice or where the
verdict, on the record, cries out to be overturned or shocks the conscience.
We cannot read this record as meeting that standard.
Williamson, 926 F.2d at 1353 (internal citation and quotation marks omitted). The
Williamson Court found that “the record does not demonstrate the miscarriage of justice that
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would permit the district court to hold the jury’s damage verdict was against the weight of
the evidence,” and concluded that the district court erred in granting the defendant’s
conditional motion for a new trial under Federal Rule of Civil Procedure 50(c)(1). Id.; see
also Motter, 883 F.2d at 1231-32 (district court abused its discretion in granting conditional
motion for new trial and reinstating jury verdict).
For similar reasons, the Court cannot say that it would shock its conscience or result in a
miscarriage of justice should the jury’s verdict stand. Although the Court has found there
was insufficient evidence to support the jury’s deliberate indifference verdict, this ruling, if
erroneous, does not mean the weight of the evidence was against the verdict entitling the
Defendants to a new trial pursuant to Federal Rule of Civil Procedure 59(a). Under the
circumstances, and in the interests of finality and judicial economy, should the Court of
Appeals reverse or vacate the Court’s order granting the Defendants’ motions for judgment
as a matter of law, the Defendants’ motion for a new trial will be conditionally denied and the
jury’s verdict reinstated.
B.
Negligence
Plaintiffs also pursued negligence claims against the individual PrimeCare Defendants
and Dr. Thomas. They also sought to impose vicarious and direct liability on PrimeCare.
The jury found the individual PrimeCare Defendants, Dr. Thomas, and PrimeCare liable and
awarded Plaintiffs $2,000,000 under the Wrongful Death Act and $800,000 under the
Survival Act.
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1.
The PrimeCare Defendants
The PrimeCare Defendants “renew” their motion for judgment as a matter of law on
Plaintiffs’ negligence claim pursuant to Federal Rule of Civil Procedure 50(b). According to
the PrimeCare Defendants’ brief in support of this motion, and without any citation to the
record, “[a]t the close of Plaintiffs’ case-in-chief, the PrimeCare Defendants moved for
judgment as a matter of law” on Plaintiffs’ negligence claim. (Doc. 377, at 32). After
reviewing the record and finding little, if any, support for the PrimeCare Defendants’
representations, the Court issued an Order directing the PrimeCare Defendants to supply
citations to the record.48
The citations supplied by the PrimeCare Defendants, consistent with the Court’s
recollection of the proceedings, make clear that each of the PrimeCare Defendants did not
move for judgment as a matter of law pursuant to Rule 50(a). Specifically, counsel for the
PrimeCare Defendants represents to the Court that each and every PrimeCare Defendant
(Paul James, Patricia Bauer, Christina Rowe, Wendy Johnson, Grace Ramos, and
PrimeCare) moved for judgment as a matter of law on Plaintiffs’ negligence claim when he
stated after the close of Plaintiffs’ case-in-chief:
Now, relative to the negligence, I really only have one argument, and that’s
really for Mr. James. I think, at this point, I have to concede there’s been
sufficient testimony to keep Mr. James—everybody else in the case—but
The Order provided, among other things, that the PrimeCare Defendants “shall submit to the Court
citations to the record to support their assertions that . . . (c) each of the PrimeCare Defendants moved for
judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a) with respect to Plaintiffs’
negligence claim.” (Doc. 395, at 2). The PrimeCare Defendants promptly complied with the Court’s Order.
(Doc. 397).
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from my perspective, there isn’t sufficient testimony for Mr. James, when the
nursing expert says nothing he did delayed the treatment that occurred in this
particular case. And without that delay, to me, there really can be nothing
linked to him causally as to the suicide.
So as to Mr. James individually, I would ask that he be dismissed totally from
the case. As to the others, I think I have to—I will say on the record I don’t
believe that the causation testimony was sufficient. However, I am not going
to present any additional argument as to that, I just simply want to preserve
the record, but I’m not going to belabor the Court with arguments, unless
there’s questions. So with that, Your Honor, I have nothing additional to add.
Sept. 13, 2016 Trial Tr. at 14:4-20 (emphasis added).
As the transcript makes clear, the only PrimeCare Defendant to move for judgment as a
matter of law prior to the case being submitted to the jury was Paul James (on the theory
there was insufficient evidence that his acts and omissions delayed Mr. Barbaros’ treatment
and therefore he could not be liable in negligence). Equally apparent is that counsel’s
alleged Rule 50(a) motion as to Patricia Bauer, Christina Rowe, Wendy Johnson, Grace
Ramos, and PrimeCare was inadequate and insufficient. These inadequacies are
highlighted by the PrimeCare Defendants’ brief in support of their “renewed” motions.
Specifically, the PrimeCare Defendants’ brief exclusively focuses on the jury’s finding of
corporate negligence against PrimeCare and makes no mention of any of the individual
PrimeCare Defendants:
Plaintiffs pursued a theory of corporate negligence against PrimeCare. ‘A
hospital owes a duty to its patients to: use reasonable care to ensure its
facilities and equipment are adequate; select and retain competent
physicians; oversee patient care of its employees; and enforce rules and
policies to ensure adequate care.’ Thomson v. Nason Hosp., 591 A.2d 703,
708 (Pa. 1991). Further, ‘for a [corporate entity] to be charged with
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negligence, it is necessary to show the [corporate entity] had actual or
constructive notice of the defect or procedures which created the harm.’ Id.
Here, there was no evidence that the PrimeCare medical department at
MCCF had inadequate equipment, facilities or non-competent medical
providers. Thus, the inquiry must focus upon whether there was sufficient
evidence of deficient oversight of employees and/or enforcement of rules and
policies to ensure adequate care.
The evidence was that PrimeCare had policies and procedures which met or
exceeded national standards and requirements. Additionally, the undisputed
evidence was that PrimeCare had a CQI process which also met national
standards and there was no criticism of how the process was carried out by
PrimeCare. Thus, the undisputed evidence was that PrimeCare’s policies
and procedures met national standards, and the process to insure employees
followed the policies and procedures also met national standards. At most,
the evidence at trial was that there were isolated instances of policy
deviations by individual nurses. Further, none of these minor policy
deviations in any way had an impact upon Barbaros choosing to commit
suicide and, as such, was not causally related to any harm to Barbaros.
Thus, not only is the evidence insufficient to support a determination of
deliberate indifference, it cannot even support a finding of negligence.
Consequently, as a matter of law, PrimeCare Defendants cannot be found to
be directly negligent in relation to Barbaros’ action of taking his own life.
(Doc. 377, at 32-33).
Although the PrimeCare Defendants’ alleged Rule 50(a) motion apparently sought a
directed verdict due to insufficient causation evidence as to each Defendant, the arguments
set forth in their brief claim instead that there was insufficient evidence that PrimeCare
breached the standard of care. The brief does not address why, as a matter of law, no
reasonable jury could find Paul James or any other individual PrimeCare Defendant liable in
negligence.
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“In order to preserve an issue for judgment pursuant to Rule 50(b), the moving party
must timely move for judgment as a matter of law” before the case is submitted to the jury
“and specify the grounds for that motion.” Lightning Lube, 4 F.3d at 1172; see also Kutner
Buick, 868 F.2d at 617 (“The rule that a post-trial Rule 50 motion can only be made on
grounds specifically advanced in a motion for a directed verdict . . . is the settled law of this
circuit.”); Fed. R. Civ. P. 50 cmt. (2006) (“[T]he Rule 50(b) motion . . . can be granted only
on grounds advanced in the preverdict motion.”) (citations omitted). “A motion for judgment
as a matter of law pursuant to Rule 50(b) must be preceded by a Rule 50(a) motion
sufficiently specific to afford the party against whom the motion is directed with an
opportunity to cure possible defects in proof which otherwise might make its case legally
insufficient.” Lightning Lube, 4 F.3d at 1173 (emphasis in original). Accordingly, “[u]nder
normal circumstances, a defendant’s failure to raise an issue in a Rule 50(a)(2) motion with
sufficient specificity to put the plaintiffs on notice waives the defendant’s right to raise the
issue in their Rule 50(b) motion.” Williams v. Runyon, 130 F.3d 568, 571-72 (3d Cir. 1997);
see also Young v. Pleasant Valley Sch. Dist., Civil Action No. 3:07-cv-00854, 2013 WL
1856573, at *2 (M.D. Pa. May 2, 2013) (“[A] defendant’s failure to raise a sufficiently specific
pre-verdict motion for judgment as a matter of law, pursuant to Rule 50(a), results in a
waiver of a post-verdict Rule 50(b) motion.”). The question thus becomes whether the
PrimeCare Defendants’ alleged Rule 50(a) motion was sufficiently specific to permit them to
“renew” the motion post-verdict.
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“To determine whether an issue has been raised, we look to the ‘communicative content,
specificity and notice-giving function of an assertion . . . judged in context.’” Holt v.
Pennsylvania, __ F. App’x __, 2017 WL 1048055, at *3 (3d Cir. Mar. 20, 2017) (quoting
Acosta v. Hondor Motor Co., Ltd., 717 F.2d 828, 832 (3d Cir. 1983)). Here, the plain
language of the PrimeCare Defendants’ alleged pre-verdict motion comes nowhere close to
articulating with sufficient specificity the judgment sought, and the facts and law entitling
each of the PrimeCare Defendants to judgment as a matter of law. See Fed. R. Civ. P.
50(a)(2) (“The motion must specify the judgment sought and the law and facts that entitle
the movant to judgment.”). Considering the communicative content, specificity, and the
notice-giving function, judged as a whole, it is clear that the alleged Rule 50(a) motion was
insufficient. Thus, Patricia Bauer, Christina Rowe, Wendy Johnson, Grace Ramos, and
PrimeCare cannot now attack the sufficiency of the evidence supporting the jury’s
negligence verdict; they have waived the right to do so. See Lesende v. Borrero, 752 F.3d
324, 333 (3d Cir. 2014) (“[T]he City did not move for judgment as a matter of law pursuant
to Rule 50(a). Because it did not raise such a motion, it wholly waived the right to mount
any post-trial attack on the sufficiency of the evidence.”) (internal citation and quotation
marks omitted). There are several reasons for the Court’s conclusion.
First, nothing in the PrimeCare Defendants’ alleged Rule 50(a) motion specified “the
judgment sought and the law and the facts that entitle” each of them to judgment. Fed. R.
Civ. P. 50(a). Only Paul James’ motion identified: (1) the judgment sought (that Mr. James
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“individually . . . be dismissed” from the case); (2) the law entitling him to judgment
(insufficient causation evidence); and (3) the facts entitling him to judgment (the testimony
said nothing he did delayed treatment). The need for compliance with this rule is readily
apparent where, as here, the PrimeCare Defendants each claim entitlement to judgment as
a matter of law based on insufficient causation evidence. Nowhere in the alleged Rule
50(a) motion, or the PrimeCare Defendants’ Rule 50(b) motion and brief in support, do they
even acknowledge that the causation evidence with respect to each Defendant was
different. And the PrimeCare Defendants certainly made no attempt to acknowledge that
PrimeCare itself could be liable on three separate theories of negligence (each based on
different causation testimony).49
Second, the communicative content and specificity of the oral motion was insufficient.
Counsel for the PrimeCare Defendants said: “relative to the negligence, I really only have
one argument, and that’s really for Mr. James.” Sept. 13, 2016 Trial Tr. at 14:4-6. He then
“conced[ed] there’s been sufficient testimony to keep . . . everyone else in the case,” and
went on to describe the judgment sought with respect to Paul James and the law and facts
entitling Paul James to that judgment. After these concessions, and merely in passing,
counsel simply stated “[a]s to the others, I think I have to – I will say on the record I don’t
As discussed, infra, PrimeCare’s liability for negligence resulted from: (1) vicarious liability for acts of
the individual PrimeCare Defendants; (2) vicarious liability for acts of its independent contractors William
Buffton and Dr. Thomas; and (3) direct liability for corporate negligence. The motions and briefs do not
even acknowledge these distinct theories of liability, let alone attempt to highlight why the causation
evidence was insufficient as to each individual PrimeCare Defendant, William Buffton, Dr. Thomas, or
PrimeCare itself.
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believe that the causation testimony was sufficient. However, I am not going to present any
additional argument as to that, I just want to preserve the record, but I’m not going to
belabor the Court with arguments, unless there are any questions.”50 Id. at 14:6-20.
Counsel’s statements neither requested the judgments sought, nor did he specify any
facts or law entitling Patricia Bauer, Christina Rowe, Grace Ramos, Wendy Johnson, or
PrimeCare to judgment as a matter of law on Plaintiffs’ negligence claim. Judged in context,
it is apparent that neither Plaintiffs nor the Court were put on notice as to a potential
deficiency in their case-in-chief and presented with the opportunity to correct it. Cf.
Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 519 n.18 (3d Cir. 1998).51
Indeed, counsel for the PrimeCare Defendants explicitly acknowledged that he only had
At the charge conference the next day, counsel for Dr. Thomas objected to the causation instruction.
Specifically, counsel objected on the basis that no expert used the exact words “increased risk of harm”
and therefore it was error to charge the jury in this respect. The PrimeCare Defendants joined in Dr.
Thomas’ objection. The Court informed counsel for the PrimeCare Defendants that it recalled that Dr.
Breggin provided causation testimony to this effect. In response, counsel for the PrimeCare Defendants
stated: “I agree with that recollection, but I also agree with Mr. Hill’s recollection that he was saying it, in
terms of factual cause or substantial factor, not increased risk of harm language. I’m not saying there
wasn’t sufficient testimony as to causation.” Sept. 14, 2016 Trial Tr. 99:8-18 (emphasis added).
50
In Brokerage Concepts, the Third Circuit found that a defendant’s Rule 50(a) motion, while “far from
a model of completeness or clarity,” was sufficient to preserve its Rule 50(b) motion. Brokerage Concepts,
140 F.3d at 519 n.18. The Rule 50(a) motion stated: “[t]he evidence is insufficient to support a finding or
sustain a verdict that U.S. Healthcare’s practices constituted an unreasonable restraint on trade in light of
the circumstances of this case.” Id. Although the text of the motion was not sufficiently specific, the
“background, as reflected in the record” led the Court to conclude that the defendant had preserved the
issue for purposes of its Rule 50(b) motion. Id. The Court compared the defendant’s Rule 50(a) motion to
the one raised in Fineman v. Armstrong World Indus., Inc., 980 F.2d 171 (3d Cir. 1992), where it held “that
a general motion for a directed verdict contesting the sufficiency of the evidence with respect to ‘coercion’
preserved defendant’s challenge to the sufficiency of the evidence with respect to the tortious interference
claim, because ‘plaintiffs’ counsel was clearly on notice of the legal rubric under which [defendants]
planned to proceed.’” Brokerage Concepts, 140 F.3d at 519 n.18 (quoting Fineman, 980 F.2d at 184)).
That is not the case here.
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“one argument” with respect to “negligence” and had to “concede” that the testimony was
sufficient with respect to the “others.” The PrimeCare Defendants’ failure to move under
Rule 50(a) with sufficient specificity waived their right to attack the sufficiency of evidence
supporting the jury’s negligence verdict under Rule 50(b); there was simply no motion for
them to “renew.” See DCK/TTEC, LLC v. Postel Indus., Inc., Civil Action No. 11-1198, 2014
WL 11485573, at *2 (W.D. Pa. Jan. 6, 2014) (noting that the defendant “did not make a
motion for judgment as a matter of law (either in writing or orally) at any time before the
case was submitted to the jury” thus the defendant “may not make (much less renew) the
motion now”).
Third, even if the Court were to assume that counsel’s statements (after conceding there
was sufficient evidence to submit to the jury the negligence claim with respect to all of the
PrimeCare Defendants except Paul James) were sufficient to preserve the argument that
there was insufficient causation evidence to find Patricia Bauer, Christina Rowe, Grace
Ramos, Wendy Johnson, and PrimeCare liable for negligence, the PrimeCare Defendants’
brief in support merely sets forth arguments, without any citation to record, that there was
insufficient evidence that PrimeCare itself breached its duty of care, and, accordingly
PrimeCare cannot be directly liable under a corporate negligence theory.52 The only other
There can be no question that the PrimeCare Defendants’ alleged Rule 50(a) motion made no
argument that the evidence presented at trial was insufficient for a reasonable jury to find that PrimeCare
breached its duty of care. Not only is this argument belied by the record, but, more importantly, Plaintiffs
were certainly not put on notice as to this specific alleged deficiency in their case and, if necessary, given
the opportunity to cure the alleged defect. See Carroll v. Clifford Twp., Civil Action No. 3:12-0553, 2014
WL 3734761, at ** 1-2 (M.D. Pa. July 28, 2014) (where defendant moved for judgment as a matter of law
52
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argument set forth in the brief is: “none of these policy deviations in any way had an impact
upon Barbaros choosing to commit suicide and, as such, was not causally related to any
harm against Mr. Barbaros. . . Consequently, as a matter of law, PrimeCare Defendants
cannot be found to be directly negligent in relation to Barbaros’ action of taking his own life.”
(Doc. 377, at 32-33).
The PrimeCare Defendants’ brief makes no reference whatsoever to Paul James,
Patricia Bauer, Christina Rowe, Grace Ramos, or Wendy Johnson and why the evidence
presented at trial was insufficient for a reasonable jury to find any of them liable in
negligence. Nor does the PrimeCare Defendants’ brief or motion even acknowledge liability
based on the actions and omissions of Dr. Thomas and William Buffton. Instead, the
PrimeCare Defendants’ brief only claims that there was insufficient evidence that PrimeCare
itself could be liable under a theory of corporate negligence, and notably does not cite to the
record in support thereof. Under the circumstances, the PrimeCare Defendants’ failure to
brief the negligence issue leads the Court to conclude each of the PrimeCare Defendants,
including Paul James, have abandoned this issue by failure to brief it.53 See State Farm
“on the grounds that the defendants are entitled to qualified immunity and that plaintiff failed to demonstrate
causation”, its Rule 50(b) motion raising an argument that there was insufficient evidence as to Monell
liability was not preserved as it “was not a ground for relief raised when defendants moved for judgment as
a matter of law at trial”); see also United Nat’l Ins. Co. v. AON Ltd., Civ. No. 04-539, 2009 WL 22445373, at
*5 (E.D. Pa. July 24, 2009) (defendants failed to raise argument in Rule 50(a) motion that there was
insufficient evidence to support jury’s finding of causation as the record citations “are in support of its
argument on whether [it] bore any duty to [the plaintiff], a different issue” than causation).
“Both waiver and abandonment, although technically different, reflect the legal doctrine that a party
must assert a legal position in a timely and substantive matter. Here, first, because [of] Defendants’
insufficient Rule 50 motion at trial, all issues relating to the sufficiency of evidence aside from RICO
53
135
Mutual Auto. Ins. Co. v. Lincow, 444 F. App’x 617, 620 (3d Cir. 2011) (district court did not
err in concluding that issue properly raised in Rule 50(a) motion was abandoned when in
brief in support of Rule 50(b) motion the defendant “did not argue the issue in his later
briefs” and thus “abandoned the . . . argument”). That the PrimeCare Defendants have
abandoned this issue altogether is, again, highlighted by their failure to address the different
causation evidence presented or the different theories of liability.
The Court’s conclusion that the PrimeCare Defendants have both waived and
abandoned these issues is a straight forward application of a well-settled rule of civil
procedure and the law in this Circuit.54 If the Court were to find that each of the PrimeCare
Defendants properly preserved their Rule 50(b) motions, then Rule 50(a) would fail to serve
its purpose of providing notice to the non-moving party and an opportunity to cure defects in
its proof. Lightening Lube, at 1173. It would also encourage and reward counsel who make
vague and ambiguous statements for strategic purposes, and penalize plaintiffs who are the
intended beneficiaries of Rule 50(a)(2). And it would unduly burden the Court, who has
already spent a great deal of time and effort researching Pennsylvania case law and
distinctiveness, are waived. Second, because Defendants have failed to fully brief certain arguments that
were tersely addressed in their motion, those arguments will be deemed abandoned.” State Farm Mutual
Auto. Ins. Co. v. Lincow, 715 F. Supp. 2d 617, 629 (E.D. Pa. 2010), aff’d, 444 F. App’x 617.
The Advisory Committee notes to Rule 50 explicitly state that the purpose of revising Rule 50(a) to
require a motion to state the judgment sought and the law and facts entitling the movant to judgment was to
address “the result in cases in which courts have used various techniques to avoid the requirement that a
motion for a directed verdict be made as a predicate to a motion for judgment notwithstanding the
verdict.” Fed. R. Civ. P. 50, Advisory Committee Notes 1991 (citing Bernson v. Allphin, 788 F.2d 268 (7th
Cir. 1986) (“This circuit has allowed something less than a formal motion for directed verdict to preserve a
party's right to move for judgment notwithstanding the verdict.”)).
54
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reviewing the entire record on multiple occasions – neither of which the PrimeCare
Defendants bothered to cite in support of their “renewed” Rule 50(b) motion. 55 See Villara
v. City of Yonkers Police Dept., No. 95 CIV. 10654, 1997 WL 399660, at *1 (S.D.N.Y. July
15, 1997) (“[B]asic principles of judicial economy require a party to raise issues of this kind
in a Rule 50(a) motion, before a case is submitted to the jury.”). The plain language of Rule
50(a)(2), judged in context, clearly shows that the PrimeCare Defendants, with the
exception of Paul James, waived their ability to challenge the sufficiency of the evidence
supporting the jury’s negligence verdict. It is also apparent that all of the individual
PrimeCare Defendants, including Paul James, have abandoned this issue due to their
failure to brief it.56 Any other conclusion would be unfair, unwise, and inconsistent with
The Court admonishes counsel for both the PrimeCare Defendants and Dr. Thomas for their repeated
misrepresentations throughout their post-trial submissions. Counsel’s repeated misrepresentations and
failure to provide citations to the record utterly fail to advance their clients’ cause, and seek to have the Court
do counsel’s work for them. “Judges are not like pigs, hunting for truffles buried in the record.” Doebler’s
Pennsylvania Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006) (internal citation and quotation
marks omitted).
55
Even though Paul James preserved the right to renew his motion pursuant to Rule 50(b), the
PrimeCare Defendants do not present any argument in their brief in support. They certainly make no
argument that the evidence was insufficient to find Paul James liable for negligence. Merely arguing that
the evidence was insufficient to find Paul James liable for deliberate indifference does not address whether,
under Pennsylvania law, no reasonable jury could conclude that Paul James could be liable for negligence.
Having failed to do so, the Court considers Paul James to have abandoned this issue and will not address
it, except in connection with his motion for a new trial as set forth below. See Lincow, 444 F. App’x at 620;
see also Lesende, 752 F.3d 324, 334 (3d Cir. 2014) (recognizing that where a party’s brief “failed to set
forth any argument that the first jury’s verdict on liability was against the clear weight of the evidence . . .
[t]he absence of such argument strongly indicates that the [defendant] did not intend to seek and never
actually sought a new trial on liability from the District Court”); United States v. Healy, Criminal No. 1:CF09-319, 2013 WL 1624310, at *1 (M.D. Pa. Apr. 15, 2013) (“In addition, issues not briefed are deemed
waived.”) (citing Nat’l R.R. Passenger Corp. v. Pennsylvania Pub. Utility Comm’n, 342 F.3d 242 (3d Cir.
2003)); Kohn v. Sch. Dist. of City of Harrisburg, Civil No. 1:11-CV-109, 2012 WL 3560822, at *1 (M.D. Pa.
Aug. 2012) (declining to rule on an issue “because the parties had not briefed it”); Hollman v. United States,
783 F. Supp. 221, 222 n.1 (M.D. Pa. 1992) (“This issue was not briefed . . . and we consider it
56
137
Federal Rule of Civil Procedure 1. See Fed. R. Civ. P. 1 (the Federal Rules of Civil
Procedure “should be construed, administered, and employed by the court and the parties
to secure the just, speedy, and inexpensive determination of every action and proceeding”).
In sum, after consideration of the communicative content, specificity, and notice giving
function of Rule 50(a), the only reasonable and logical determination is a finding of waiver
and abandonment.57 The Court will nevertheless address the evidence presented against
the PrimeCare Defendants in connection with their motion for a new trial on the theory that
the jury’s negligence verdict was against the weight of the evidence, infra.
2.
Dr. Alex Thomas
The Court will next address Dr. Thomas’ Rule 50(b) motion. In his motion, but nowhere
in his brief in support thereof, Dr. Thomas alleges that the evidence was insufficient for a
reasonable jury to find him liable in negligence. The motion alleges, erroneously, that both
abandoned.”); Weiss v. York Hosp., 524 F. Supp. 433, 440 (M.D. Pa. 1981) (where an issue is not properly
briefed, “the Court is of the opinion that this legal issue is not now properly before it”); Envirex, Inc. v.
Ecological Recovery Assocs., Inc., 454 F. Supp. 1329, 1332 (M.D. Pa. 1978) (defendant “has not briefed all
the grounds set forth in its motion for a new trial and the Court will not deal with grounds not briefed”).
Rather than argue that the PrimeCare Defendants waived the right to attack the sufficiency of the
evidence in a Rule 50(b) motion by failing to move under Rule 50(a) with sufficient specificity, Plaintiffs
instead briefly address the PrimeCare Defendants’ arguments on their merits. In Runyon, the Third Circuit
found that the plaintiff waived her right to assert on appeal that the defendant waived an issue that was
addressed in its Rule 50(b) motion, but not preceded with a sufficiently specific Rule 50(a) motion, because
plaintiff “did not raise her waiver objection to the defendants’ Rule 50(b) motion before the district court” but
instead attacked the Rule 50(b) on its merits. Runyon, 130 F.3d at 572. Runyon stands for the proposition
that a party opposing a Rule 50(b) motion, who did not raise the issue before the district court that an
insufficient Rule 50(a) motion waived the movant’s right to relief under Rule 50(b), cannot for the first time
claim waiver on appeal. It does not, however, stand for the proposition that because Plaintiffs did not
specifically raise the issue of waiver in their brief in opposition to the PrimeCare Defendants’ Rule 50(b)
motion, the Court is precluded from finding waiver when it is clear that waiver has occurred. Moreover, the
facts of Runyon were quite unique and could not be more different than the present case.
57
138
at the close of Plaintiffs’ case-in-chief and at the close of evidence, Dr. Thomas moved for
judgment as a matter of law on Plaintiffs’ negligence claim pursuant to Rule 50(a).58 (Doc.
354, at ¶¶ 26-29). A review of the record shows that Dr. Thomas, like the PrimeCare
Defendants, did not move for judgment as a matter of law on Plaintiffs’ negligence claim
prior to the case being submitted to the jury. Sept. 13, 2016 Trial Tr. at 14:23-20:4. In fact,
after moving for judgment as a matter of law on Plaintiffs’ deliberate indifference claim,
counsel for Dr. Thomas readily acknowledged that “[i]f anything, it rises to – like I said –
claims of negligence but nothing beyond that.” Id. at 20:2-4. Consistent with this statement,
Dr. Thomas has abandoned this argument, as nowhere in his brief in support does he claim
entitlement to judgment as a matter of law on Plaintiffs’ negligence claim. Nevertheless, in
response to the Court’s Order directing that he provide citations to the record, Dr. Thomas
claims he moved for judgment as a matter of law pursuant to Rule 50(a) on two occasions.
(Doc. 398 at 2). Dr. Thomas’ arguments are utterly without merit.
First, Dr. Thomas claims that he moved for judgment as a matter of law “[a]t the close of
Defendants’ case-in-chief on Day 7 of the trial (N.T. 9/14/16 at 62:19-21).” (Id.). Second,
Dr. Thomas alleges he moved for judgment as a matter of law “at the close of trial (after the
jury returned with a Plaintiffs’ verdict as to both negligence and deliberate indifference) on
Day 8 of the Trial.” (Id.). The Court will address each in turn.
Upon reviewing Dr. Thomas’ representations, the Court issued an Order directing Dr. Thomas to
“submit to the Court citations to the record to support his assertion that he moved for judgment as a matter
of law pursuant to Federal Rule of Civil Procedure 50(a) with respect to Plaintiffs’ negligence claim.” (Doc.
396, at 1). Dr. Thomas promptly complied. (Doc. 398).
58
139
Following the close of the evidence, counsel for the PrimeCare Defendants renewed his
motion “pursuant to Rule 50, without further argument.” Sept. 14, 2016 Trial Tr. at 62:14-17.
Counsel for Dr. Thomas then stated “I join, as well, on behalf of Dr. Thomas Your Honor.”
Id. at 62:19-20. According to Dr. Thomas, these 11 words constituted a Rule 50(a) motion
that was sufficiently specific to preserve his Rule 50(b) motion because he “did join in the
argument timely asserted by counsel for PrimeCare Medical as to Plaintiffs’ failure to
establish causation.” (Doc. 398, at 2). But, as discussed, the only PrimeCare Defendant
that moved for judgment as a matter of law on this issue was Paul James. It simply defies
logic, then, that Dr. Thomas could somehow preserve his Rule 50(b) by incorporating a codefendant’s insufficient Rule 50(a) motion. Simply stating “I join” does not specify the
judgment sought or the law and facts entitling Dr. Thomas to the judgment. Even if each of
the PrimeCare Defendants properly moved under Rule 50(a) on the theory that the
causation evidence was insufficient, which they did not, counsel for Dr. Thomas stating “I
join” is not and cannot be sufficient to preserve his Rule 50(b) motion. The causation
evidence presented against Dr. Thomas and the PrimeCare Defendants was not the same
evidence. If there were any doubt, Dr. Thomas’ response to the Court’s order conceding
that he “did not expressly reference the negligence claim during the initial argument moving
for judgment as a matter of law” and his failure to brief this issue puts any doubt to rest.
(Doc. 398, at 2).
140
Dr. Thomas’ second argument that a post-verdict motion was sufficient to preserve this
issue also fails. The plain language of Rule 50(a) makes apparent that such a motion must
be raised before the jury returns its verdict. See Fed. R. Civ. P. 50(a)(2) (“A motion for
judgment as a matter of law may be made at any time before the case is submitted to the
jury….”) (emphasis added); see also Wolski v. City of Erie, 900 F. Supp. 2d 553, 561 (W.D.
Pa. 2012) (“A motion for relief under Rule 50(a) may be made at any time before the case is
submitted to the jury.”).
Dr. Thomas has waived his right to move for judgment as a matter of law on Plaintiffs’
negligence claim by failing to properly raise this issue with a sufficiently specific Rule 50(a)
motion.59 He has also abandoned this issue by failing to brief or set forth any argument
why, viewing the evidence in the light most favorable to the Plaintiffs, the causation
evidence was insufficient to support the jury’s negligence verdict. Dr. Thomas’ motion will
be thus denied.60 The Court will nevertheless briefly address the evidence presented
against Dr. Thomas in connection with his motion for new trial, infra.
To the extent Dr. Thomas may argue his motion for summary judgment on Plaintiffs’ negligence
claim was sufficient to preserve his arguments, such argument lacks merit. See Frank C. Pollara Grp., LLC
v. Ocean View Inv. Holding, LLC, 784 F.3d 177,185 (3d Cir. 2015) (“[I]t has become apparent that when, as
in this instance, a summary judgment motion does not present a pure issue of law and the issues it does
present have not been raised and renewed by proper motions for judgment as a matter of law under Rule
50, those issues are not reviewable on appeal.”). Dr. Thomas’ motion for summary judgment alleged
insufficient causation evidence based on the report of an expert who did not testify at trial. It certainly did
not present a “pure issue of law.” Id. The same holds true for the PrimeCare Defendants’ motion for
summary judgment.
59
Even if Dr. Thomas or the PrimeCare Defendants did not waive their right to raise a Rule 50(b)
motion on the negligence claim, the Court would nevertheless deny their motions on the merits.
60
141
C. Punitive Damages
The jury imposed $8,000,000 in punitive damages solely against PrimeCare. PrimeCare
now moves pursuant to Rule 50(b) alleging there was insufficient evidence from which a jury
could find that its acts and omissions warranted the imposition of punitive damages.
PrimeCare, again without any citations to the record, alleges it moved for judgment as a
matter of law pursuant to Rule 50(a) prior to the case being submitted to the jury. The Court
issued an Order directing the PrimeCare Defendants to provide it with citations to the record
in support of this assertion. (Doc. 395). In response, the PrimeCare Defendants directed
the Court to approximately nine lines from the trial transcript occurring two days after the
close of Plaintiffs’ case-in-chief and one day after the close of evidence and the charge
conference. (Doc. 397 at 1-2). The PrimeCare Defendants also note that, before trial, they
filed a motion in limine “to Preclude Argument that Plaintiffs May Recover Punitive
Damages”, (Doc. 215), and that the Court denied the Motion (Doc. 274). The question thus
becomes whether PrimeCare raised the issue of its entitlement to judgment as a matter of
law with a sufficiently specific Rule 50(a) motion such that the issue of punitive damages is
properly preserved for purposes of its Rule 50(b) motion.
As an initial matter, the Court rejects PrimeCare’s argument that simply filing a pretrial
motion in limine requesting that the Court preclude “any argument” that Plaintiffs are entitled
to punitive damages weeks before any evidence was presented to the jury is the equivalent
of a Rule 50(a) motion. See Botey v. Green, No. 3:12-CV-1520, 2017 WL 2536397, at *2
142
(M.D. Pa. June 9, 2017) (defendants moved in limine with respect to punitive damages
arguing “that the Plaintiff ‘has not presented evidence of intentional, willful, wanton, or
reckless conduct to support punitive damages.’ This is an argument that is premature and
is appropriate to be made in accordance with Federal Rule of Civil Procedure 50(a). But it
is not an argument that can be properly addressed in a motion in limine prior to trial”); see
also Welch v. United Parcel Serv., Inc., 871 F. Supp. 2d 164, 170 (E.D.N.Y. 2012) (“Here,
the Court finds that pursuant to the letter of Fed.R.Civ.P. 50(b) and the relevant case law,
because the Defendant only raised the issue . . . at a pretrial conference and again in the
middle of jury deliberations . . . but did not raise the issue in its Rule 50(a) motion, the
present Rule 50(b) motion is procedurally improper. . . . It is an unfair result and
contravenes the purposes of Rule 50 to allow the Defendant to raise an issue before the
Plaintiff has even put on his case, and then not renew that contention regarding the
sufficiency of the evidence after the Plaintiff has actually presented his proof. Such a
finding would undermine the requirement that a Defendant identify the specific element that
is unsupported and question the sufficiency of the evidence that was presented; and then
afford the Plaintiff an opportunity to remedy any defect.”). Accordingly, PrimeCare’s pretrial
motion in limine asking the Court to preclude “any argument” that Plaintiffs may recover
punitive damages does not constitute a Rule 50(a) motion and cannot preserve this issue
for purposes of Rule 50(b).
143
The Court next considers whether PrimeCare properly raised the issue of punitive
damages in a Rule 50(a) motion at trial. PrimeCare did not move for judgment as a matter
of law on Plaintiffs’ claim for punitive damages at either the close of Plaintiffs’ case-in-chief
or at the close of the evidence. Sept. 13, 2016 TT at 9:13-14:20; Sept. 14, 2016 TT at
62:14-17. However, one day after the charge conference and mere minutes before closing
arguments, counsel for PrimeCare said, “[t]he only thing I want to state Your Honor, is I just
want to make sure I’m on the record that I’ve asked that the punitive damages claim be
dismissed, even at this point, because I don’t think there’s sufficient evidence.” Sept. 15,
2016 Trial Tr. at 7:16-19. Although far from a model of clarity and timing, the Court cannot
say that PrimeCare’s Rule 50(a) motion was untimely. See Fed. R. Civ. P. 50(a)(2) (“A
motion for judgment as a matter of law may be made at any time before the case is
submitted to the jury.”) (emphasis added). Although the motion made no mention of Rule
50(a) and certainly could have been more specific, it identified the judgment sought
(dismissal of punitive damages claim) and the reasons for the judgment (the facts and
evidence presented by plaintiffs were insufficient to impose punitive damages). The Court
will therefore consider the merits of PrimeCare’s Rule 50(b) motion.
The Court deferred ruling on PrimeCare’s Rule 50(a) motion and instructed the jury in
accordance with the standard punitive damages instruction contained in the Pennsylvania
Standard Jury Instructions. The jury was instructed as follows:
Punitive damages may only be awarded for willful or wanton conduct or
reckless indifference.
144
Reckless indifference is an intentional act or failure to act in disregard of a
risk of harm to others that is known or should be known to be highly probable
and with a conscious indifference to the consequences. Reckless conduct is
also acting or failing to act when existing danger is actually known and when
an awareness that harm is highly probable.
In assessing punitive damages, you may consider the character of the healthcare provider’s act or failure to act, the nature and extent of harm that the
health-care provider caused or intended to cause to the patient, and the
wealth of the health-care provider.
PrimeCare did not object to this instruction. Based on this instruction, the jury imposed
$8,000,000 in punitive damages against PrimeCare only.61
The Court must consider whether the evidence presented, viewed in the light most
favorable to Plaintiffs, was sufficient to impose punitive damages against PrimeCare.62
Under Pennsylvania law, “a punitive damages claim must be supported by evidence
sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm
to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be,
in conscious disregard of that risk.” Hutchison ex rel. Hutchinson v. Luddy, 582 Pa. 114,
Plaintiffs initially sought to recover punitive damages against all of the Defendants on both the §
1983 claim and the negligence claim. However, before the case was submitted to the jury, Plaintiffs
withdrew their claim for punitive damages under § 1983 against all of the Defendants and withdrew their
claim for punitive damages on their negligence claim against all of the Defendants with the exception of
PrimeCare. Sept. 15, 2016 Trial Tr. at 2:3-12; 6:19-7:7.
61
Where, as here, punitive damages were awarded on a state law negligence claim, “the propriety of
an award of punitive damages for the conduct in question, and the factors the jury may consider in
determining their amount, are question of state law.” Browning-Ferris Indus. of Vermont, Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 278, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). “Federal law, however, will
control on those issues involving the proper review of the jury award by a federal district court and court of
appeals.” Id. at 278-79.
62
145
124, 870 A.2d 114 (2005) (citations omitted). Similarly, section 1303.505(a) of
Pennsylvania’s Medical Care Availability and Reduction of Error Act (“MCARE Act”)
provides that “[p]unitive damages may be awarded for conduct that is the result of the health
care provider’s willful or wanton conduct or reckless indifference to the rights of others. In
assessing punitive damages, the trier of fact can properly consider the character of the
health care provider’s act, the nature and extent of the harm to the patient that the health
care provider caused or intended to cause and the wealth of the health care provider.” 40
P.S. § 1303.505(a). “[A] showing of mere negligence, or even gross negligence, will not
suffice to establish that punitive damages should be imposed. Rather, the plaintiff must
adduce evidence which goes beyond a showing of negligence, evidence sufficient to
establish that the defendant’s acts amounted to intentional, willful, wanton or reckless
conduct.” Hall v. Episcopal Long Term Care, 54 A.3d 391, 395, 2012 PA Super 205 (Pa.
Super. 2012); accord 40 P.S. § 1303.505(b) (gross negligence insufficient to impose
punitive damages under Pennsylvania law).
There was no evidence that PrimeCare’s acts or omissions were intentional, willful, or
wanton. The question thus becomes whether, viewing the evidence in the light most
favorable to the Plaintiffs, a reasonable jury could find PrimeCare’s acts and omissions were
recklessly indifferent to the rights of others such that punitive damages were permissible.
Because the Court has already found that the PrimeCare Defendants are entitled to
judgment as a matter of law with respect to Plaintiffs’ deliberate indifference claim, it
146
appears to logically follow that there was insufficient evidence to support the jury’s award of
punitive damages. Indeed, the PrimeCare Defendants argue as much. (Doc. 393, at 18)
(“Plaintiffs are not entitled to punitive damages for the same reasons they cannot establish
deliberate indifference.”).
The Third Circuit appears to treat the terms “deliberate indifference” and “reckless
indifference” interchangeably, and has declined several opportunities to elaborate on the
distinctions, if any, between the two terms. See, e.g., Palakovic, 854 F.3d at 224 n.15 (“In
Colburn II, we did not precisely define the terms ‘deliberate indifference’ or ‘reckless
indifference,’ concluding that, whichever formulation is employed, it indicates a level of
culpability beyond mere negligence. We once again do not find it necessary to parse these
phrases to determine whether there is some distinction between them.”); Colburn, 946 F.2d
at 1024 (“In Colburn I, we referred to ‘reckless indifference’ as the standard for judging the
defendant’s conduct. . . In Williams, we referred to deliberate indifference. . . Both panels
expressly declined to distinguish or precisely define these two concepts. We find it
unnecessary to do so in this case. It will suffice for present purposes to note that a level of
culpability higher than a negligent failure to protect from self-inflicted harm is required.”).
This Court, too, need not elaborate on any distinction. The Court notes that simply because
PrimeCare’s acts and omissions did not violate the Constitution, it does not necessarily
follow that PrimeCare cannot be held liable for punitive damages under Pennsylvania law.
However, the similarities between the two standards gives the Court pause and strongly
147
suggests that because PrimeCare cannot be held liable for violating Mr. Barbaros’
constitutional rights, PrimeCare, on the evidence presented, likewise cannot be held liable
for punitive damages under Pennsylvania law.
Pennsylvania has adopted Section 908(2) of the Restatement (Second) of Torts. Feld v.
Merriam, 506 Pa. 383, 485 A.2d 742 (1984). The Restatement provides:
(2) Punitive damages may be awarded for conduct that is outrageous,
because of the defendant’s evil motive or his reckless indifference to the
rights of others. In assessing punitive damages, the trier of fact can properly
consider the character of the defendant’s act, the nature and extent of the
harm to the plaintiff that the defendant caused or intended cause and the
wealth of the defendant.
Restatement (Second) of Torts § 908(2). Elaborating on the concept of reckless
indifference, the Pennsylvania Supreme Court has found reckless indifference sufficient to
support an award of punitive damages “where the actor knows, or has reason to know . . . of
facts which create a high degree of risk of physical harm to another, and deliberately
proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” SHV
Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 494, 587 A.2d 702 (1991) (internal citation
and quotation marks omitted). By way of comparison, the Pennsylvania Supreme Court has
indicated what type of conduct would not constitute reckless indifference sufficient to
impose punitive damages: that is, “where the actor has such knowledge, or reason to know,
of the facts, but does not realize or appreciate the high degree of risk involved, although a
reasonable man in his position would do so.” Id. (internal citation and quotation marks
omitted).
148
In Pennsylvania, “punitive damages are an extreme remedy available in only the most
exceptional matters.” Phillips v. Cricket Lighters, 584 Pa. 179, 188, 883 A.2d 439 (2005)
(internal citation and quotation marks omitted). “Punitive damages may be appropriately
awarded only when the plaintiff has established that the defendant has acted in an
outrageous fashion due to either the defendant’s evil motive or his reckless indifference to
the rights of others.” Id. at 188-89 (internal citation and quotation marks omitted). “The
state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless,
or malicious.” Feld, 485 A.2d at 748. As discussed, where, as here, punitive damages are
imposed based on a defendant’s reckless indifference to the rights of others, the plaintiff
must present sufficient evidence from which a reasonable jury could find that PrimeCare “(1)
had a subjective appreciation of the risk of harm to which the plaintiff was exposed, and (2)
acted, or failed to act . . . in conscious disregard of that risk.” Hutchinson, 582 Pa. at 114.
The Court has carefully considered the evidence and testimony presented at trial.
Viewing all the evidence in the light most favorable to the Plaintiffs, no reasonable jury could
find PrimeCare’s conduct sufficiently recklessly indifferent so as to warrant punitive
damages under Pennsylvania law. The Court will therefore grant PrimeCare’s Rule 50(b)
motion for judgment as a matter of law because no reasonable jury could impose punitive
damages against PrimeCare based on the evidence presented at trial. Several reasons
lead the Court to this conclusion.
149
First, the Court has already extensively detailed PrimeCare’s acts and omissions and
need not repeat them here. Suffice it to say that there was insufficient evidence from which
a jury could reasonably conclude that PrimeCare “(1) had a subjective appreciation of the
risk of harm to which the plaintiff was exposed, and (2) acted, or failed to act . . . in
conscious disregard of that risk.” Hutchinson, 582 Pa. at 114. There was simply no
evidence that PrimeCare’s acts and omissions created “an unreasonable risk of physical
harm” to Barbaros or the inmates at the MCCF which was “substantially greater” than
negligent conduct and that PrimeCare acted, or failed to act, in conscious disregard of that
risk. Cricket Lighters, 584 Pa. at 188.
Second, no reasonable jury could find PrimeCare’s acts and omissions rose to the level
of gross negligence. Acts and omissions constituting gross negligence would be insufficient
to impose punitive damages against PrimeCare. Section 1303.505(b) of the MCARE Act
provides that “[a] showing of gross negligence is insufficient to support an award of punitive
damages.” 40 P.S. § 1303.505(b). The Pennsylvania Supreme Court has never defined
“gross negligence” in the context of MCARE’s punitive damages provisions. The Court has,
however, provided a definition of gross negligence in a somewhat similar context. Gross
negligence is “a form of negligence where the facts support substantially more than ordinary
carelessness, inadvertence, laxity, or indifference.” Albright v. Abington Memorial Hosp.,
548 Pa. 268, 278, 696 A.2d 1159 (1997) (internal citation and quotation marks omitted).
“The behavior of the defendant must be flagrant, grossly deviating from the ordinary
150
standard of care.” Id. “While the behavior must be more than simple negligence, it need
not reach the level of wanton conduct.” DeJesus v. United States Dept. of Veterans Affairs,
479 F.3d 271, 286 (3d Cir. 2007). “Negligence consists of inattention or inadvertence,
whereas wantonness exists where the danger to the plaintiff, though realized, is so
recklessly disregarded that, even though there be no actual intent, there is at least a
willingness to inflict injury, a conscious indifference to the perpetration of the wrong.” Id.
(internal citation and quotation marks omitted). “Gross negligence lies somewhere in
between.” Id. The failure to access and review medical records and “the failure to evaluate
adequately [decedent’s] suicidality does not constitute gross negligence.” Cohen v. Kids
Peace Nat’l Centrs., Inc., 256 F. App’x 490, 492-93 (3d Cir. 2007) (citing Doby v.
DeCrescenzo, 171 F.3d 858, 876 (3d Cir. 1999)); see also Downey v. Crozer-Chester
Medical Ctr., 817 A.2d 517, 526-529, 2003 PA Super 51 (Pa. Super. 2003). The Court’s
review of the record reveals there was no evidence presented to the jury that could
establish that PrimeCare’s acts and omissions were “substantially more” than ordinary
negligence or rising to the level of reckless indifference. Albright, 548 Pa. at 278.
Third, there was no expert testimony that PrimeCare’s acts and omissions were
outrageous and in reckless disregard of Mr. Barbaros’ rights. Cf. Klinger v. State Farm Mut.
Auto. Ins. Co., 115 F.3d 230, 235 (3d Cir. 1997) (concluding that defendant’s conduct
warranted punitive damages and noting, among other things, “[t]here was testimony from
plaintiffs’ expert that [defendant’s] conduct was in reckless disregard of the plaintiffs’ rights”
151
and “stated that, in his opinion, this conduct was outrageous. This testimony provided the
jury a sufficient basis to award punitive damages.”).
Finally, the Court’s review of Pennsylvania case law permitting the imposition of punitive
damages against a healthcare provider based on corporate negligence leads it to conclude
that a jury could not reasonably conclude that PrimeCare’s conduct was sufficiently
outrageous to warrant the imposition of punitive damages under Pennsylvania law. See,
e.g., Dubose v. Quinlan, 125 A.3d 1231, 1240-41, 2015 PA Super 223 (Pa. Super. 2015)
(issue of whether punitive damages were warranted against nursing home was for the jury);
Hall, 54 A.3d at 396-97 (issue of punitive damages was for jury where “the record was
replete with evidence that the nursing home was chronically understaffed and complaints
from the staff went unheeded. The Estate presented evidence [defendant’s] employees
were not only aware of understaffing, which led to improper patient care, but they
deliberately increased staff during times of state inspections and then reduced such after
the inspection concluded. . . . Furthermore, the Estate presented evidence that nurses
falsified care logs, thus indicating the deceased had received care at the nursing home
when, in fact, the deceased was admitted into the hospital.”); Scampone v. Grante
Healthcare Co., 11 A.3d 967, 2010 PA Super 124 (Pa. Super. 2010) (issue of punitive
damages was for jury when “[t]he record was replete with evidence that the facility was
chronically understaffed and complaints from staff continually went unheeded.
[Defendants’] employees not only were aware of the understaffing that was leading to
152
improper patient care, they deliberately altered records to hide the substandard care by
altering ADLs that actually established certain care was not rendered.”), aff’d on other
grounds, 618 Pa. 363, 57 A.3d 582; Stroud v. Abington Memorial Hosp., 546 F. Supp. 2d
238, 257 (E.D. Pa. 2008) (plaintiff stated claim for punitive damages against corporate
healthcare provider where he alleged the defendant “was aware that Decedent was
suffering from an emergent and life threatening condition . . . and that they nevertheless
failed to take any actions to remedy the condition or avert the demise,” and defendants
“failing to take any action on critical test results . . . showing an emergent and life
threatening condition was outrageous and shocking to the conscience”) (internal citation
and quotation marks omitted). In each of these cases, there was evidence from which a
reasonable jury could infer that the corporation was subjectively aware of a substantial risk
of harm to which the decedent was exposed and acted, or failed to act, in conscious
disregard of that risk.63 No such evidence was presented to the jury in this case. Moreover,
the evidence in Scampone, Hall, and Dubose suggested conduct that was far more culpable
and blameworthy than PrimeCare’s acts and omissions, including, among other things,
intentional acts to deceive regulatory authorities and intentional alteration of patient care
records.
“[A]lthough state intermediate appellate decisions are not automatically controlling where the highest
court of the state has not spoken,” the Court “must give serious consideration to the decisions of
intermediate appellate courts in ascertaining and applying state law.” Robinson v. Jiffy Executive
Limousine Co., 4 F.3d 237, 242 (3d Cir. 1993).
63
153
Viewing all the evidence in the light most favorable to the Plaintiffs, no reasonable jury
could find that PrimeCare’s acts and omissions were sufficiently culpable to warrant the
imposition of punitive damages under Pennsylvania law. There was insufficient evidence
from which the jury could reasonably infer that PrimeCare “(1) had a subjective appreciation
of the risk of harm to which the plaintiff was exposed, and (2) acted, or failed to act . . . in
conscious disregard of that risk.” Hutchinson, 582 Pa. at 114. Rather, PrimeCare’s acts
and omissions were negligent, not recklessly indifferent or even grossly negligent. This is
simply not the type of case where the “extreme remedy” of punitive damages can be
imposed. Accordingly, the Court will grant PrimeCare’s renewed motion for judgment as a
matter of law. As set forth supra, should the Court of Appeals reverse or vacate the Court’s
entry of judgment as a matter of law the Court conditionally denies PrimeCare’s motion for a
new trial on the issue of punitive damages.
V.
MOTION FOR NEW TRIAL
A.
The PrimeCare Defendants
The PrimeCare Defendants have also moved for a new trial pursuant to Federal Rule of
Civil Procedure 59. They seek a new trial due to: (1) alleged erroneous jury instructions; (2)
alleged various erroneous evidentiary rulings; and (3) the verdict was against the weight of
the evidence.
Before addressing the PrimeCare Defendants’ arguments, the Court notes that the
PrimeCare Defendants’ motion, but not their brief in support, raises a scattershot list of
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perceived errors entitling them to a new trial. (Doc. 366). For example, the PrimeCare
Defendants’ motion alleges:
(1) “[t]he Court prejudicially erred by charging the jury on increased risk of
harm when there was no expert testimony offered by Plaintiffs that negligent
conduct by any of the Defendants increased the risk of harm to Mr. Barbaros,”
(Id. at ¶ 63(A)(3)); (2) “[t]he Court prejudicially erred by charging the jury on
both causation and increased risk of harm,” (Id. at ¶ 63(A)(4)); (3) “[t]he Court
prejudicially erred by charging the jury on damages in such a manner as to
invite a double recovery,” (Id. at ¶ 63(A)(5)); (4) “[t]he Court prejudicially erred
by charging the jury on both deliberate indifference (an intentional act) and
negligence (an unintentional act) since both causes of action are internally
inconsistent thereby resulting in an inconsistent verdict,” (Id. at ¶ 63(A)(6));
(5) “[t]he Court prejudicially erred by charging the jury on both deliberate
indifference (an intentional act) and negligence (an unintentional act) since
both causes of action are internally inconsistent which would confuse and
mislead the jury,” (Id. at ¶ 63(A)(7)); and (6) “[t]he Court prejudicially erred by
failing to charge the jury as to vicarious liability relative to punitive damages,”
(Id. at ¶ 63(A)(8)).
Id. However, the PrimeCare Defendants set forth no arguments with respect to these
alleged errors in their brief. “‘Merely reciting the Rule 59(a) standard and then tossing the
motion into the court’s lap is not enough.’” Lesende, 752 F.3d at 334 (quoting Willis v.
Lepine, 687 F.3d 826, 836 (7th Cir. 2012)). The PrimeCare Defendants’ failure to brief
these issues leads the Court to conclude that the PrimeCare Defendants have abandoned
these issues.
In addition, the PrimeCare Defendants also claim in their motion that several of the
Court’s evidentiary rulings were erroneous and warrant a new trial. (Doc. 366, at ¶¶
63(B)(1)-(10)). However, the PrimeCare Defendants have only briefed the Court’s alleged
errors regarding four of the ten evidentiary rulings. With respect to the six other alleged
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errors raised in their motion, which the PrimeCare Defendants have not briefed, the Court
considers these arguments as abandoned.
Finally, the PrimeCare Defendants allege in their motion that the Court erred by: (1)
failing to strike an unidentified juror for cause, (Doc. 366. at ¶ 63(D)); and (2) granting
Correctional Officer Jesse Cleare’s Motion for Judgment on the Pleadings. (Id. at ¶ 63(E)).
Defendants did not brief either of these issues. Therefore, again, the Court considers these
arguments abandoned for failure to brief. Nevertheless, to the extent these raise legal
issues the Court will address them below.
Like the PrimeCare Defendants, Dr. Thomas’ motion also claims entitlement to a new
trial based on a variety of perceived errors, but fails to present any evidence or argument in
his brief in support.64 (Doc. 354, at ¶¶ 39-40). To the extent Dr. Thomas and the
Because Dr. Thomas has not advanced any argument in his brief in support with respect to the vast
majority of these alleged errors, the Court considers them abandoned. In addition to those arguments
raised by the PrimeCare Defendants, Dr. Thomas claims he is entitled to a new trial because:
64
(a) The Court prejudicially erred by denying Dr. Thomas’ Motion to Dismiss;
(b) The Court prejudicially erred by denying Dr. Thomas’ Motion for Summary Judgment;
(e) The Court prejudicially erred and abused its discretion by allowing Plaintiffs to introduce
autopsy photographs of Mumun Barbaros;
(h) The Court prejudicially erred and abused its discretion by permitting Mr. Barbaros’ wife and
daughter to testify as to the ‘grief’ and mental anguish they suffered as a result of Mr.
Barbaros’ death;
(k) The Court prejudicially erred and abused its discretion in permitting Plaintiffs’ liability
expert, Dr. Peter Breggin, to testify as to the standard of care when he was not board certified
and otherwise failed to meet the requirements of Section 512 of the MCARE Act, 40 P.S. §
1303.512, regarding the admission of expert testimony.
(n) The Court prejudicially erred by charging the jury on damages in such a manner so as to
invite a double recovery.
(o) The Court prejudicially erred by failing to include on the verdict slip a question as to
whether Dr. Thomas was the ‘agent’ of PrimeCare Medical;
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PrimeCare Defendants claim error in the same respects, the Court will address them
together below.
A Court should only grant a new trial “when ‘the great weight of the evidence cuts
against the verdict and . . . a miscarriage of justice would result if the verdict were to
stand.’” Leonard, 834 F.3d at 386 (quoting Springer, 435 F.3d at 274). “Where evidence is
in conflict and subject to two interpretations, the trial judge should be reluctant to grant a
new trial.” Klein, 992 F.2d at 1295. “Absent a showing of substantial injustice or prejudicial
error, a new trial is not warranted and it is the court’s duty to respect a plausible jury
verdict.” Montgomery Cnty. v. MicroVote Corp., 152 F. Supp. 2d 784, 795 (E.D. Pa. 2001)
(internal citation and quotation marks omitted). “The decision to grant or deny a new trial is
left almost entirely to the discretion of the district court.” Radwan v. Carteret Bd. of Educ.,
62 F. App’x 34, 37 (3d Cir. 2003) (citing Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36,
101 S.Ct. 188, 66 L.Ed.2d 193 (1980); Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d
Cir. 1992)).
(p) The Court prejudicially erred and abused its discretion by failing not to strike ‘for cause’ a
prospective juror who stated that she had an unfortunate outcome from two healthcare
providers; that she did not generally trust doctors; and that she did not typically seek treatment
from them.
(Doc. 354, at ¶¶ 39-40).
The Court will not address Dr. Thomas’ claim of entitlement to a new trial based on: (1) denial of his
motion to dismiss; (2) denial of his motion for summary judgment; and (3) granting Defendant Cleare’s
motion for judgment on the pleadings. Dr. Thomas has not only abandoned these arguments but they
utterly lack merit for the reasons set forth in previous memorandum opinions. (Docs. 64, 175, 177).
Moreover, even if these constituted errors, Dr. Thomas failed to demonstrate any prejudice warranting a
new trial. For the same reasons, the PrimeCare Defendants are not entitled to a new trial based on the
Court’s alleged error in granting Defendant Cleare’s motion for judgment on the pleadings.
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1.
Jury Instructions
When a motion for a new trial is based on the court’s jury instructions, a new trial is
warranted only if the instruction, taken as a whole, “fails to fairly and adequately present the
issues in the case without confusing or misleading the jury.” Donlin v. Phillips Lighting N.
Am. Corp., 581 F.3d 73, 79 (3d Cir. 2009) (internal citation and quotation marks omitted). “It
is well settled that a trial judge has substantial discretion to select the language to be used
in instructing the jury on the law so long as the judge’s instructions are correct and do not
omit essentials.” United States v. Tiller, 302 F.3d 98, 104 (3d Cir. 2002) (citations omitted).
a. Negligence Per Se Jury Instruction and Argument
The PrimeCare Defendants seek a new trial alleging the Court erred “in permitting
questioning and argument concerning Pennsylvania nursing law and where the Court
provided a negligence per se charge concerning Pennsylvania nursing law where Plaintiffs
provided no expert testimony that PrimeCare violated Pennsylvania nursing law.” (Doc.
377, at 39). At the charge conference, Plaintiffs requested a negligence per se instruction
based on PrimeCare’s alleged violation of Pennsylvania Nursing Regulations and the
Psychology Act. Sept. 14, 2016 Trial Tr. at 83:7-12. Counsel for the PrimeCare Defendants
objected to the requested charge. Id. at 83:17-84:7. The Court then stated:
Here’s the first difficulty I have. The setting out of the Pennsylvania Code, 49
PA Code, and then apparently the reference to the statute, with regard to the
Psychology Act, that’s one thing, but I don’t think after, well, I guess seven
and a half days of testimony, six and a half days of testimony, that it would be
appropriate for me to say that these laws dictate the duty of care required of
someone in the same situation as Defendants Paul James, et al.
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I mean, I don’t think anybody—first of all, I don’t think any expert gave that
opinion. And secondly, all of the testimony has been directed, it seems to
me, at either showing that HC—I’m sorry—NCCHC standards or PrimeCare’s
own policies were violated or met or did not meet the standard of care.
I mean, I don’t think Mr. Chacker, I can stretch these two sections—one of the
PA code and one of the statute—stretch them to the point where I would
instruct the jury that these laws dictate the duty of care required. I just don’t
think that’s appropriate.
Id. at 84:12-85:5. The Court again emphasized that “you’re asking me, in effect, to take
these two excerpts from a regulation in one case and the statute in another and swallow up
this case, that these laws dictate the duty of care—I’m not going to do that.” Id. at 87:17-21.
The Court continued: “[i]f you want me to put into these instructions that this is the law in
Pennsylvania, I don’t know where I would put it, so as to allow you to argue what it is you
want to argue, I can probably get that far, but in no way am I going to say that these laws
dictate the duty of care required of the Defendants.” Id. at 87:24-88:4.
Consistent with its statements, the Court instructed the jury based on a significantly
modified version of Pennsylvania’s Suggested Standard Jury Instructions 13.100 which
read as follows:
Violation of Statute – Negligence Per Se
A Pennsylvania law in effect at the time this alleged harm occurred, The
Practical Nursing Law, defines the “Practice of Practice Nursing” as “[t]he
performance of selected nursing acts in the care of the ill, injured or infirm
under the direction of a licensed professional nurse [or] a licensed physician .
. . which do not require the specialized skill, judgment and knowledge
required in professional nursing.” 49 Pa. Code § 21.141.
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This was the entirety of the alleged negligence per se instruction that the PrimeCare
Defendants claim entitle them to a new trial. By way of comparison, Pennsylvania’s
Suggested Standard Jury Instructions 13.100 provides:
Violation of Statute – Negligence Per Se
[A] [An] [insert regulation or standard] in effect at the time the accident
occurred provided:
[quote relevant regulatory provisions]
[name of plaintiff] claims that [name of defendant] violated this [regulation]
[standard].
If you find that [name of the defendant] violated the [regulation] [standard],
then [name of defendant]’s violation of this [regulation] [standard] is evidence
you must consider, along with all other evidence, in deciding whether [name
of defendant] was negligent.
It is apparent that the Court did not charge the jury in accordance with a negligence per
se instruction (despite the label of the instruction stating “Negligence Per Se-Violation of
Statute”).65 See Walters v. UPMC Presbyterian Shadyside, 144 A.3d 104, 121, 2016 PA
Super 160 (Pa. Super. 2016) (“Negligence per se is defined as conduct, whether of action
or omission, which may be declared and treated as negligence without any argument or
proof as to the particular surrounding circumstances.”) (internal citation and quotation marks
omitted). Instead, the Court merely provided the jury with forty-one words from a
Pennsylvania Nursing Regulation, which was entirely consistent with the evidence
To the extent the Court erred by labeling this particular instruction “Negligence Per Se – Violation of
Statute,” any error was not sufficiently prejudicial to entitle the PrimeCare Defendants to a new trial for the
reasons set out more fully below.
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presented at trial and which the PrimeCare Defendants did not and do not dispute contained
the appropriate definition of the practice of practical nursing.66 As the Court stated on the
record, Plaintiffs requested a negligence per se instruction on two grounds, but the Court
declined to give that instruction. Instead, the Court, upon Plaintiffs’ request, directed the
jury to an uncontroversial definition contained in Pennsylvania’s statutes and nursing
regulations. This was neither erroneous nor prejudicial and does not entitle the PrimeCare
Defendants to a new trial.
In Prum v. Crisante, Civil Action No. 14-4829, 2016 WL 7201233 (E.D. Pa. Apr. 29,
2016), the plaintiffs claimed they were entitled to a new trial based on the Court’s failure to
provide the negligence per se instruction they requested. The plaintiffs requested that the
Court deliver the standard Pennsylvania jury instruction on Violation of Statute – Negligence
Per Se based on alleged violations of the Pennsylvania Motor Vehicle Code and included
additional language. The Court declined the instruction as proposed, but instead instructed
the jury:
Now, a Pennsylvania statute provides that one, ‘No person shall move a
vehicle which is stopped, standing or parked unless and until the movement
can be made safely.’
Another Pennsylvania statute also provides ‘Upon a roadway no person shall
turn a vehicle or move from one traffic lane to another or enter the traffic
stream from a parked position unless and until the movement can be made
The definition of the “practice of practical nursing” is also contained in Purdon’s Pennsylvania
Statutes and contains the same definition provided to the jury. The statute defines the practice of practical
nursing as “the performance of selected nursing acts in the care of the ill, injured or infirm under the
direction of a licensed practical nurse, a licensed physician or a licensed dentist which do not require the
specialized skill, judgment and knowledge required in professional nursing.” 63 P.S. § 652(1).
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with reasonable safety nor without giving an appropriate signal in the manner
provided in this section.’
Mr. Prum claims that the defendant, Mr. Crisante, violated these laws. In
turn, Mr. Crisante claims that Mr. Prum violated these laws. If you find that
either party violated the law, you may consider this evidence in determining
whether either party was negligent in this case.
Id. at *1 n.1. The Court held that the failure to include the instruction requested by the
plaintiff did not entitle him to new trial. See Prum, 2016 WL 7201233 at *1 n.1 (“This
instruction, which repeats the language of [the statutes] verbatim, does not warrant a new
trial, because it was not erroneous and did not prejudice Plaintiffs . . . the language of the
statutory provisions at issue do not warrant the pattern negligence per se instruction”).
There can be no doubt that this Court’s inclusion in the jury instruction of a definition
contained in Pennsylvania Practical Nursing Law, 49 Pa. Code § 21.141, was not erroneous
and did not confuse or mislead the jury. Nevertheless, even if providing the jury with these
41 words (which appeared on page 27 of a 34 page instruction) was in error, it was not
prejudicial error and does not entitle the PrimeCare Defendants to a new trial.
First, the Court did not instruct the jury that a violation of the nursing regulations required
them to find the PrimeCare Defendants negligent.
Second, the PrimeCare Defendants do not claim that the Court apprised the jury of a
definition that inaccurately stated the law. Nor do they claim, as they did at trial, that the
nursing regulations do not apply to a corporate prison healthcare provider and its nursing
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staff.67 Nor could they make such an argument, as the Court’s review of the scope of the
regulations clearly demonstrates their applicability to LPNs providing nursing services in
Pennsylvania, such as the individual PrimeCare Defendants. See Stephens v.
Pennsylvania State Bd. of Nursing, 657 A.2d 71 (Pa. Cmwlth. 1995) (Practical Nurse Law
applies to LPN practicing in Pennsylvania); see also 63 P.S. § 651 et seq. Despite the
PrimeCare Defendants’ suggestions to the contrary at trial, the Court is unaware of any
regulation or statute that exempts LPNs licensed by the Commonwealth of Pennsylvania, or
their employers, from compliance with the provisions of the Act simply because they are
providing healthcare in a prison environment.68 Lest there be any doubt, the Court has
located a Third Circuit non-precedential opinion where PrimeCare, arguing that its nursing
staff could not be liable to the plaintiff, directed the Circuit to Pennsylvania’s Nursing
Regulations to support its assertions. See Boomer v. Lewis, 541 F. App’x 186, 192 n.6 (3d
At trial, Mr. Haskins testified that in the prison medical context “there are no state statutes. The one
thing that regulates jails and prisons in the State of Pennsylvania is Title 37. It is not like a hospital or a
nursing home, where joint commission or a state licensure, there are no licenses, other than the license
that I hold and the other professionals that work for us, there are no licensures in the State of
Pennsylvania.” Sept. 8, 2016 Trial Tr. at 141:13-144:2. At a sidebar conference, counsel for the
PrimeCare Defendants acknowledged that he was not sure if this was the case, and said the extent of his
knowledge on this subject was what Mr. Haskins had just testified to. Id. at 144:3-13.
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Such a rule makes obvious sense. The State no doubt has an interest in ensuring qualified,
competent, and licensed nursing personnel providing services to citizens of the Commonwealth, including
pretrial detainees and convicted prisoners, have sufficient qualifications and are properly supervised.
Moreover, throughout this case, including in post-trial motions, PrimeCare repeatedly seeks the protections
provided to healthcare providers under Pennsylvania’s MCARE Act. Yet at the same time, PrimeCare
disclaims any applicability to it of Pennsylvania’s nursing rules and regulations.
68
The Court also notes PrimeCare’s status as a healthcare employer within the Commonwealth. See
PrimeCare Med., Inc. v. Unemployment Comp. Bd. of Review, 760 A.2d 483 (Pa. Cmwlth. 2000) (rejecting
PrimeCare appeal for review of order granting former employee unemployment compensation benefits).
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Cir. 2013) (noting that PrimeCare’s nurses “point out in their brief, there is a limit to what
treatment they are allowed to provide under Pennsylvania’s Professional Nursing Law, 63
P.S. § 211 et seq. See, e.g., 63 P.S. § 212(1) (disallowing ‘medical diagnosis or
prescription of medical therapeutic or corrective measures’”)).
Third, the definition of the “practice of practical nursing” contained in the regulation is
entirely consistent with the testimony at trial about the distinctions between a LPN and RN
and the requirement that a LPN be supervised by an RN or doctor. Nurse Wild and Todd
Haskins, among others, recognized as such. Considering the jury instructions as a whole,
the Court concludes that the jury was properly instructed.
The same holds true with the PrimeCare Defendants’ arguments that they are entitled to
a new trial due to improper questioning and argument about the definition of the practice of
practical nursing because Plaintiffs did not present any expert testimony on this subject.
According to the PrimeCare Defendants:
There was no testimony elicited from Plaintiffs’ experts, or any other
witnesses, that Pennsylvania law was violated . . . [y]et the jury was permitted
to speculate, with no evidence in the record and no guidance from an
appropriately trained professional, as to the applicability of the nursing
regulations, whether there was negligence per se based upon the nursing
regulations and whether the negligence per se was a causal factor in
Barbaros’ intentional act of taking his own life.
(Doc. 377, at 42). This argument is unsupported by the record.
PrimeCare Defendants’ arguments that the Court erred by permitting argument on the
regulation because no expert testified that PrimeCare violated the regulation, or even
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established that the regulation applied to PrimeCare have no merit.69 No expert testified
that the specific Pennsylvania regulation at issue was violated by PrimeCare or that the
specific provision applied to PrimeCare. The PrimeCare Defendants, neither at trial nor at
present, point to any provision in the Pennsylvania Code that exempts its nurses who are,
without question, licensed to practice in the Commonwealth, from the regulations at issue,
or relaxes the licensure and supervision requirements for nurses in a prison health care
facility. Plaintiffs’ correctional nursing expert, Kathy Wild, and PrimeCare’s nursing expert,
Terry Fillman, provided testimony on these distinctions between LPNs and RNs.
PrimeCare’s expert, Dr. Mendel, also discussed the distinctions between LPNs and RNs,
testifying that “ideally” LPNs should not be supervising LPNs. Their testimony, among that
of others, was entirely consistent with the definition provided to the jury, that: (1) LPNs do
not have the same “specialized skill, judgment and knowledge” as an RN; and (2) LPNs
perform selected nursing acts under the direction of an RN or doctor. PrimeCare does not
take any issue with those two propositions embedded in the definition.
Further, Todd Haskins, PrimeCare’s Vice President of Operations and an RN in
Pennsylvania, testified that he was aware of the existence of the Pennsylvania Department
of State Board of Nursing and agreed its role is to protect the health and safety of the
It cannot be said that the law required Plaintiffs to present expert testimony on the definition
contained in Pennsylvania Practical Nursing Code that was provided to the jury. See Hartle v. FirstEnergy
Generation Corp., Civil Action Nos. 08-1019, 08-1025, 08-130, 2014 WL 1117930, at *3 (W.D. Pa. Mar. 20,
2014) (“Expert testimony explaining a statute or regulation may be helpful to the jury under certain
circumstances.”) (emphasis added).
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citizens of Pennsylvania through licensure, certification and regulation of the practice of
professional and practical nursing by registered nurses, practical nurses, certified nurse
practitioners, clinical nurse specialists, and graduate students. Sept. 8, 2016 Trial Tr. at
148:7-21. He also testified that he was aware that the responsibilities of an RN are different
from those of an LPN.70 Id. at 149:6-153:14. When presented with the language of the
Pennsylvania regulation defining the duties of an RN, he testified that not only had he seen
the document before, he acknowledged that it governs the responsibilities of RNs, and that
he was “obviously familiar” with the regulation. Id. at 150:5-11. He also agreed that in order
to become an RN, more training and education is required than that of an LPN. Id. at
153:23-154:6. When presented with the definition of the practice of practical nursing (the
same definition provided to the jury), Mr. Haskins agreed with the definition. Id. at 155:9158:8. He acknowledged that, consistent with the testimony at trial, if an individual provides
nursing care as an LPN, then that individual is required to be supervised by either an RN,
licensed physician, dentist, or psychiatrist. Id. 160:14-18. Thus, Mr. Haskins’ testimony
establishes that the definition provided to the jury was entirely accurate and in no way
For example, when asked by counsel for the PrimeCare Defendants about his understanding about
supervision of LPNs by other individuals he testified: “The LPNs are—they certainly have practice
limitations that they cannot do that I can do as an RN. They are certainly not able to supervise people
who—the physicians and psychiatrists and that, those specialties have their own layer of supervision that
they have available. We do utilize, in some of our locations, LPNs” as Health Services Administrators in
charge of supervising LPNs and have “had literally zero licensure issues in any of the states that we
provide services.” Sept. 8, 2016 Trial Tr. at 180:17-181:5.
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prejudicial.71 Under the circumstances, the Court cannot say that either providing the
definition of the practice of practical nursing to the jury (which was not a negligence per se
instruction) or permitting Plaintiffs to argue that PrimeCare failed to comply with the
regulation, was in error.
b. Direct Causation and Increased Risk of Harm
Next, the PrimeCare Defendants’ motion, but not their brief in support, alleges error in
the jury instruction regarding direct causation and increased risk of harm. Dr. Thomas,
however, has briefed this issue and the Court will therefore address it here. At the charge
conference, counsel for Dr. Thomas objected to the proposed jury instruction on increased
risk of harm. Sept. 14, 2016 Trial Tr. at 96:25-97:14. Counsel for the PrimeCare Defendants
joined in the objection. Id. at 99:7. The jury charge on increased risk of harm comes from
Pennsylvania’s Suggested Standard Civil Jury Instruction 14.20 entitled “Medical
Malpractice – Factual Cause.” The instruction contains two parts: first, an instruction on
direct causation and, second, an instruction on increased risk of harm. The Court provided
the jury with both instructions. The increased risk of harm charge read as follows:
When a defendant physician or other health-care personnel negligently fails
to act or negligently delays in taking indicated diagnostic or therapeutic steps,
The Court ruled that Mr. Haskins’ testimony on this issue would be permitted on a question-byquestion basis. Although counsel for PrimeCare Defendants certainly objected at times, the jury heard a
great deal of testimony on this issue from Mr. Haskins, without objection, suggesting he was well-aware of
the regulations and their applicability. See Agere Sys., 2005 WL 2994702, at *2 (E.D. Pa. Aug. 17, 2005)
(court’s ruling permitting questioning on a question-by-question basis “were not sufficiently final to excuse
[party’s] obligation to properly bring its objection to the Court’s attention and to provide the Court an
opportunity to resolve those issues”).
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and his or her negligence is a factual cause of injuries to the plaintiff, the
negligent defendant physician and/or health-care personnel is responsible for
the injuries caused.
When the plaintiff presents expert testimony that the failure to act or delay on
the part of the defendant physician and/or health-care personnel has
increased the risk of harm to the plaintiff, this testimony, if found credible,
provides a sufficient basis from which you may find that the negligence was a
factual cause of the injuries sustained.
If there is any significant possibility of avoiding injuries and the defendant has
destroyed that possibility, he or she may be liable to the plaintiff.
It is rarely possible to demonstrate to an absolute certainty what would have
happened under circumstances that the wrongdoer did not allow to come to
pass.
According to Dr. Thomas, he is entitled to a new trial because the Court erroneously
charged the jury on increased risk of harm because Plaintiffs failed to present any expert
testimony that his acts or omissions specifically “increased the risk of harm” to Mr.
Barbaros. He also suggests that factual cause and increased risk of harm are mutually
exclusive and it was error to instruct the jury with respect to both.
Dr. Thomas’ argument that there was no expert testimony that his acts and omissions
increased the risk of harm and caused Mr. Barbaros’ suicide, ignores the substantial
testimony of Plaintiffs’ expert, Dr. Peter Breggin, that Dr. Thomas’ acts or omissions
increased the risk of harm to Mr. Barbaros and was a factual cause in Mr. Barbaros’
committing suicide. Sept. 9, 2016 Trial Tr. at 233:21-234:4; 277:14-19. The same holds
true for the PrimeCare Defendants, as Dr. Breggin and Nurse Wild testified to this effect
with respect to each of the PrimeCare Defendants. Nevertheless, even if Plaintiffs’ experts
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did not testify that the Defendants’ acts and omissions “increased the risk of harm”, which
the experts certainly did, Pennsylvania law is quite clear that even if an expert “did not use
the words ‘increased the risk of harm,’” the expert’s testimony “taken as a whole” can satisfy
the requisite standard because Pennsylvania law does “not require experts to use ‘the
magic words’ when testifying.” Mitzelfelt v. Kamrin, 526 Pa. 54, 66, 584 A.2d 888 (1990)
(internal citation and quotation marks omitted). Dr. Breggin and Nurse Wild’s testimony
taken as a whole, among others, plainly satisfied this standard.72
Next, Dr. Thomas claims that the Court erred by instructing the jury on both factual
causation and increased risk of harm because these two theories are mutually exclusive
and it was error to provide both instructions. Neither Dr. Thomas nor the PrimeCare
Defendants raised this specific objection at trial. In support of his argument, Dr. Thomas
directs the Court to what he misrepresents is a Third Circuit decision called Sucharski v.
Patel, Civil Action No. 12-3298, 2014 WL 80699 (E.D. Pa. Jan. 8, 2014). In that decision, a
Magistrate Judge held that “[u]nder Pennsylvania law, [the plaintiff] cannot proceed on both
direct causation and an increased risk of harm theories because they are mutually
exclusive. An action that allegedly increased the risk of harm cannot have directly caused
the harm.” Id. at *1. The Court finds that Dr. Thomas’ arguments and the arguments set
Counsel objected on the basis that no expert used the exact words “increased risk of harm.” The
Court then informed counsel for the PrimeCare Defendants that it recalled that Dr. Breggin provided
causation testimony to this effect. In response, counsel for the PrimeCare Defendants stated: “I agree with
that recollection, but I also agree with Mr. Hill’s recollection that he was saying it, in terms of factual cause
or substantial factor, not increased risk of harm language. I’m not saying there wasn’t sufficient testimony
as to causation.” Sept. 14, 2016 Trial Tr. at 99:8-18.
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forth in Sucharski are unavailing and do not entitle the PrimeCare Defendants or Dr.
Thomas to a new trial.
First, the Court cannot say that the Magistrate Judge’s decision in Sucharski
conclusively established that it was error to instruct the jury with respect to both direct
causation and increased risk of harm. In the decision, the Magistrate Judge recognized that
“[t]he Pennsylvania Supreme Court has not addressed whether a plaintiff may proceed
simultaneously under both direct causation and an increased risk of harm theory,” but noted
that the Superior Court has “interpreted a Pennsylvania Supreme Court case as allowing a
plaintiff to present evidence of direct causation, without being precluded from also receiving
an increased risk harm instruction.” Id. at *2. The Court’s review of Sucharski leads it to
conclude that it was not error to instruct the jury on both increased risk of harm and direct
causation. Sucharski has never been cited by any Court since it was decided over three
and a half years ago. If there were any doubt that it was permissible to instruct the jury on
both, decisions of the Pennsylvania Superior Court puts any doubt to rest. See Klein v.
Aronchick, 85 A.3d 487, 494, 2014 PA Super 3 (Pa. Super. 2014) (“However, a close study
of controlling precedent reveals that direct causation and increased risk of harm are not
mutually exclusively, but simply alternative theories of recovery which, depending on the
facts and the expert testimony, may both apply in a given case.”) (emphasis in original).
Although not controlling, the Court finds Klein instructive and is of the opinion that the
Pennsylvania Supreme Court would adopt a similar position.
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Second, although Dr. Thomas objected to the increased risk of harm instruction, his sole
objection was that no expert testified that his acts and omissions increased the risk of harm
to Mr. Barbaros. At no point did Dr. Thomas, or the PrimeCare Defendants, claim before
the Court that an instruction on direct causation and increased risk of harm are mutually
exclusive and improper. See Lesende, 752 F.3d at 335-36 (although defendant “raised
some concern” about the jury’s instruction, its “objection was not clear and cogent . . . was
not sufficiently specific . . . and failed to state the grounds upon which it rested”); see also
Cooney v. Booth, 28 F. App’x 148, 151 (3d Cir. 2002) (“The purpose of Rule 51, however, is
to ensure ‘that the district court is made aware of and given an opportunity to correct any
alleged error in the charge before the jury begins its deliberations.’”) (quoting Smith v.
Borough of Wilkinsburg, 147 F.3d 272, 276 (3d Cir. 2002)).
Third, Dr. Thomas’ proposed points for charge included a request for an instruction under
Section 14.20, which includes both direct causation and increased risk of harm. (Doc. 306, at
2). Finally, Dr. Thomas and the PrimeCare Defendants have not argued how they were
unfairly prejudiced by the Court’s instruction. A charge of increased risk of harm was entirely
appropriate given the circumstances of this case and the testimony presented. Accordingly,
the Court finds that no error, let alone prejudicial error, entitles the PrimeCare Defendants
and Dr. Thomas to a new trial based on any alleged error in the jury instructions.
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c. Unpreserved Claims of Error
Dr. Thomas and the PrimeCare Defendants’ motions raise two additional issues with the
jury instructions: (1) charging the jury on both deliberate indifference and negligence was
error and led to inconsistent verdicts; and (2) the instructions permitted a double recovery.
The PrimeCare Defendants also claim that the Court erred by failing to charge the jury with
respect to vicarious liability for punitive damages. Once again, the PrimeCare Defendants
and Dr. Thomas failed to address these issues in their supporting briefs.
The Court considers each of these arguments waived and abandoned. At no point did
the PrimeCare Defendants or Dr. Thomas object to the jury instruction on these specific
grounds, nor did they submit proposed jury instructions to this effect. Fed. R. Civ. P. 51.
They have also abandoned these issues by failing to address them in their briefs. The
Court will nevertheless briefly address them.73
Both the PrimeCare Defendants’ and Dr. Thomas’ motions, but not their briefs in support, also claim
they are entitled to a new trial because the Court erroneously denied their motion to strike an unidentified
juror for cause. Dr. Thomas and the PrimeCare Defendants have abandoned this argument for failure to
brief. In any event, the Court’s ruling was not erroneous and, even if it were, this does not entitle Dr.
Thomas and the PrimeCare Defendants to a new trial. Because the Defendants make no attempt to identify
this juror, the Court has reviewed the record which suggests they take issue with the Court’s denial of their
motion to strike Juror number 12. Sept. 6, 2016 Trial Tr. at 67:20-73:20. Defendants moved to strike juror
number 12 for cause after she expressed unfortunate outcomes with doctors in the past and said that she
generally avoids doctors. She, however, explicitly stated that she does not have any hostility towards
doctors and that her decision to avoid doctors was “not necessarily the doctors, it’s me. Something always
goes wrong.” Id. at 70:10-12. Juror number 12 then answered affirmatively when asked if she could be fair
and impartial. In denying Defendants’ motion, the Court stated: “We all know, really, when a person says
they can be fair and impartial doesn’t mean they can be, and that is sufficient grounds for me to deny a
challenge. But she has indicated that her view—her experiences have been unfortunate and she likes to
avoid doctors. But I asked her whether she has any hostility towards them, she said, No. I don’t think it’s
enough for me to strike her for cause.” Id. at 72:19-73:5.
73
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i. Inconsistent Verdicts
Both Dr. Thomas and the PrimeCare Defendants claim in their motions that the Court
erred by instructing the jury on both “deliberate indifference (an intentional act) and
negligence (an unintentional) act.” (Doc. 354, at ¶¶ 39(n)-(o)). According to the
Defendants’ motions, instructing the jury on both causes of action was erroneous because
they are “internally inconsistent,” would “confuse and mislead the jury,” and resulted in an
“inconsistent verdict.” Id. As previously stated, Defendants failed to brief these issues.
Regardless, Defendants’ unsupported assertions utterly lack merit.
“[D]istrict courts have been awarded ample discretion in determining how to best conduct the voir dire.”
Kirk v. Raymark Indus. Inc., 61 F.3d 147, 153 (3d Cir. 1995) (internal citation and quotation marks omitted).
“In determining whether a particular juror should be excused for cause, [the Court’s] main concern is
whether the juror holds a particular belief or opinion that will prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath.” Id. (internal citation and quotation
marks omitted). Although a juror’s claims of impartiality may not be accepted blindly, particularly if “other
facts of record indicate to the contrary,” this is not one of those rare instances where the circumstances
require a new trial. Id. The Court stands by its ruling and, even if in error, neither Dr. Thomas nor the
PrimeCare Defendants make any arguments as to why this alleged error was so prejudicial that they are
entitled to a new trial. Notably, they could have exercised their peremptory challenges, but chose not
to. Here, “[e]ach of the potential jury members answered that there was nothing that would prevent them
from being a fair and impartial juror and each agreed to decide the case according to the law, based upon
the evidence received.” Ellis v. Labella, No. 14-cv-0004, 2015 WL 1608635, at *3 (W.D. Pa. Apr. 10, 2015).
Each of the jurors also swore an oath to this effect. Accordingly, it was not error to deny Defendants’
motion to strike juror number 12 for cause and, even if error, this error does not entitle the Defendants to a
new trial. See id. at *3; see also Lawler v. Richardson, Civil Action No. 10-196, 2012 WL 2362383, at *5
(E.D. Pa. June 20, 2012) (denying motion for new trial and noting “[i]n this case, Jurors 4 and 5 made
assurances they would be fair in applying the law and following the instructions of the Court. Other than
their original answers to Plaintiffs’ voir dire, the Court had no reason to question the jurors’ representations
that they could be impartial in following the Court’s instructions”); Wood v. Rendell, Civ. A. No. 94-1489,
1997 WL 109654, at *4 (E.D. Pa. Mar. 4, 1997) (denying motion for new trial and noting “[t]he Court
encountered no indication that these jurors could not lay aside any previously formed impression or opinion
as to the merits of the case . . . and render a verdict based on the evidence presented to the court . . . and
therefore found no reason to dismiss them for cause.”)(internal citation and quotation marks omitted).
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First, the Defendants abandoned this argument by failing to brief the issue and merely
listing it among a list of perceived errors in their motions. Second, they also did not object
at any time to the jury instruction on the theory that it was error to instruct on both causes of
action and have thus waived their right to object. Fed. R. Civ. P. 51(c)(1). Third, had there
been any error, this would have been an invited error, as both Dr. Thomas and the
PrimeCare Defendants submitted proposed points for charge which included requested
instructions for both the deliberate indifference and negligence claims. (Docs. 303, 306).
Most importantly, though, there is nothing “internally inconsistent,” “confusing,” or
“misleading” about instructing the jury on both causes of action. These are two separate
causes of actions, addressing separate harms, which seek to vindicate separate rights. To
the Court’s knowledge, no Court has found an instruction on both deliberate indifference
and negligence “internally inconsistent,” let alone so internally inconsistent as to warrant a
new trial. See, e.g., Cash v. Cnty. of Erie, 654 F.3d 324, 342-44 (2d Cir. 2011) (recognizing
instructing the jury on both deliberate indifference and negligence was not internally
inconsistent and holding that the jury’s verdict finding municipal defendants liable for
deliberate indifference was not “irreconcilably inconsistent” with its finding the sheriff not
negligent and did not warrant new trial); Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir.
1986) (affirming jury verdict finding defendants liable both in negligence and for deliberate
indifference); Simmons v. City of Philadelphia, 728 F. Supp. 352 (E.D. Pa. 1990) (holding
that jury verdict finding a defendant correctional officer not liable to the estate under § 1983
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for suicide of pretrial detainee was not inconsistent with portion of the verdict in which jury
found that officer was negligent), aff’d 947 F.2d 1042 (3d Cir. 1991).
As these cases make clear, there was nothing erroneous about instructing the jury with
respect to both negligence and deliberate indifference and the jury’s verdict was in no way
an “inconsistent verdict.” The jury found that each of the Defendants was negligent and
also found that each of the Defendants, with the exception of Wendy Johnson, was
deliberately indifferent to Mr. Barbaros’ serious medical need. There is nothing inconsistent
about such a verdict. See Simmons, 728 F. Supp. at 357 (“Rather than being inconsistent,
the jury’s verdict demonstrates a full understanding of the facts and the law. Rather than
finding all defendants liable on all counts, the jury recognized that [one of the defendant’s]
behavior was negligent without rising to the level of deliberate indifference. We find no
inconsistency at all.”). Accordingly, there was no inconsistency whatsoever in the
instructions to the jury, let alone an inconsistency that was so prejudicial as to warrant a
new trial under the plain error standard. Cf. Acumed, LLC v. Advanced Surgical Servs.,
Inc., 561 F.3d 199 (3d Cir. 2009).
ii. Double Recovery
Although the Defendants assert that the jury instructions “invited” a double recovery,
without the benefit of any briefing or arguments as to how the Court’s instruction do so, the
Court is left merely to speculate. In recognizing that the Defendants have not only waived,
but abandoned this argument, the Court notes that its review of the record reveals that this
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assertion is wholly disingenuous, as instructing on both a deliberate indifference and
negligence claim does not invite a double recovery. Nor did anything in verdict sheet
“invite” a double recovery.
After the Court submitted to the parties a proposed verdict sheet, which contained
detailed provisions for the jury to list the specific damages recoverable under the wrongful
death and survival actions, as well as for the deliberate indifference claim, the parties asked
the Court instead to consider their joint proposed verdict sheet. After reviewing the parties’
proposed verdict sheet the Court itself raised the issue of potential double recovery.
Specifically, the Court informed the parties that because their joint proposed verdict sheet
contained only a single space for the jury to award a lump-sum amount of damages, it
would be impossible to know if the jury impermissibly awarded a double recovery. Sept. 14,
2016 Trial Tr. at 99:25-108:9. Counsel for the Plaintiffs insisted, despite the Court’s
concern, that a single lump sum award was necessary and appropriate. After the Court
again raised its concerns, counsel for the PrimeCare Defendants agreed with the Court that
there should be separate amounts and not a single lump sum award. Sept. 14, 2016 Trial
Tr. at 104:10-18. Counsel for Dr. Thomas also agreed, telling the Court “obviously, you
were thinking about this issue at that time and we didn’t put our thinking caps on and try to
figure this riddle out, so we apologize.” Id. at 106:5-7. The Court then again reiterated that,
while it would prefer the parties to agree to a joint verdict sheet, “I think it is a significant
problem, in the event liability is found on both the 1983 claim as well as the negligence
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claim. . . because whatever the outcome here, if the outcome is one where there’s liability
on both claims and there’s a motion from anyone here as to whether the jury gave a double
recovery, I’m not sure how that can be resolved, absent something in the verdict slip to
indicate what they did.” Id. at 106:8-107:3. The Court thereafter dismissed the jury for the
remainder of the afternoon and permitted the parties to spend the “rest of the afternoon
getting this special verdict done.” Id. at 108:4-9. The parties agreed to jointly revise the
verdict sheet accordingly and the verdict sheet ultimately provided to the jury was the joint
verdict sheet created, and agreed to, by Plaintiffs and Defendants. At no time did any of the
Defendants raise an objection to the instructions or verdict sheet on the basis that they
“invited” a double recovery. Their failure to do so waives their right to raise to this issue
now. See Fed. R. Civ. P. 51(c).
iii. Vicarious Liability - Punitive Damages
Finally, the Court will address the PrimeCare Defendants’ argument set forth in their
motion that “[t]he Court prejudicially erred by failing to charge the jury as to vicarious liability
relative to punitive damages.” (Doc. 366, at ¶ 63(A)(8)). Specifically, it is the PrimeCare
Defendants’ position that the Court’s instruction should have been in accordance with
Pennsylvania’s MCARE statute governing punitive damages for vicarious liability, 40 P.S. §
1303.505(c), and that the Court’s failure to instruct the jury as such entitles them to a new
trial on punitive damages.
The MCARE statute governing punitive damages provides:
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(a) Punitive damages may be awarded for conduct that is the result of the
health care provider’s willful or wanton conduct or reckless indifference to
the rights of others. In assessing punitive damages, the trier of fact can
properly consider the character of the health care provider’s act, the
nature and extent of the harm to the patient that the health care provider
caused or intended to cause and the wealth of the health care provider.
(b) A showing of gross negligence is insufficient to support an award of
punitive damages.
40 P.S. § 1303.505(a)-(b). This language is in all respects materially identical to the
Pennsylvania standard jury instructions governing punitive damages in medical negligence
cases that was provided to the jury. See Scampone, 11 A.3d at 992 (recognizing that the
language in 40 P.S. § 1303.505(a)-(b) “tracks the test for punitive damages discussed in the
case law”); see also Wagner v. Onofrey, No. 03 CV 403, 2006 WL 3704801, at *4 (Pa. Ct.
Com. Pl. Nov. 30, 2006) (recognizing that “Sections 505(a) and (b) of the MCARE Act are
consistent with well-established Pennsylvania case law”). Thus, it comes as no surprise
that the PrimeCare Defendants do not claim that the Court’s punitive damage instruction
was either erroneous or prejudicial, as they repeatedly cite this provision in support of their
post-trial motions as providing the applicable standard. (Doc. 377, at 27).
However, PrimeCare claims it is entitled to a new trial because the Court did not instruct
the jury in accordance with the specific subsection governing vicarious liability for punitive
damages. The subsection provides:
(c) Punitive damages shall not be awarded against a health care provider
who is only vicarious liable for the actions of its agent that caused the
injury unless it can be shown by a preponderance of the evidence that the
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party knew of and allowed the conduct by its agents that resulted in the
award of punitive damages.
40 P.S. § 1303.505(c) (emphasis added). Subsection (c) “creates a vicarious liability
standard which is more demanding than that set forth in the common law.” Wagner, 2006
WL 3704801, at *4. “Thus, by virtue of this statutory provision and its injection of a scienter
element into the respondeat superior equation, a health care provider may not be
vicariously liable for exemplary damages unless it had actual knowledge of the wrongful
conduct of its agent and nevertheless allowed it to occur.” Id. (internal citation and
quotation marks omitted).
A review of the proposed jury instructions submitted by the PrimeCare Defendants make
clear that it never requested an instruction in accordance with 40 P.S. § 1303.505(c). (Doc.
303). The charge conference transcript also contains no reference to either a request for
this specific instruction or an objection to the Court’s failure to include such an instruction.
Sept. 14, 2016 Trial Tr. at 67:12-114:6. Rather, the PrimeCare Defendants only claimed
that the evidence presented was insufficient to submit the question of punitive damages to
the jury. Because the PrimeCare Defendants neither requested an instruction incorporating
the standard set forth in 40 P.S. § 1303.505(c), nor objected to the Court’s punitive
damages jury instruction on this basis, they may not now claim error, unless the Court’s
failure to include the instruction constituted a plain error affecting PrimeCare’s substantial
rights. Fed. R. Civ. P. 51(d).
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Under the plain error standard, the Court must consider “the obviousness of the error,
the significance of the interests involved, and the reputation of judicial proceedings if the
error stands uncorrected.” Franklin Prescriptions, Inc. v. New York Times, Co., 424 F.3d
336, 340 (3d Cir. 2005) (internal citation and quotation marks omitted). Put another way,
plain error exists if the error is “(1) fundamental and highly prejudicial or if the instructions
are such that the jury is without adequate guidance on a fundamental question and (2) [the]
failure to consider the error would result in a miscarriage of justice.” Alexander v. Riga, 208
F.3d 419, 426-27 (3d Cir. 2000). Having reviewed the record and case law, the Court
concludes that the failure to instruct the jury with respect to vicarious liability for punitive
damages was not error and, even if it was error, did not constitute plain error affecting the
PrimeCare Defendants’ substantial rights. As an initial matter, the Court has already found
that PrimeCare is entitled to judgment as a matter of law on Plaintiffs’ claim for punitive
damages.
First, any error in failing to instruct the jury in accordance with 40 P.S. § 1303.505(c)
cannot be said to be obvious. Throughout the over six years of this litigation, no party has
appeared to ever cite this subsection before, and certainly no party raised this issue at the
charge conference, in the proposed jury instructions, or in their jointly proposed verdict
sheet. In fact, in their pretrial motion in limine “[t]o Preclude Argument That Plaintiffs’ May
Recover Punitive Damages” and brief in support, the PrimeCare Defendants reference only
40 P.S. §§ 1303.505(a), but make no reference to vicariously liability under 40 P.S. §
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1303.505(c). (Doc. 215, at ¶ 7; Doc. 218 at 4-5). The argument presented by the
PrimeCare Defendants in their pretrial brief and motion was that Plaintiffs “have not
presented sufficient evidence to establish that any of the Medical Defendants had a
subjective appreciation of the risk of harm to which Plaintiff was exposed and acted, or
failed to act, in conscious disregard of that risk.” (Doc. 218, at 4). That is the standard
under which the Court instructed the jury and which the jury found warranted imposition of
punitive damages against PrimeCare.
In any event, any alleged error cannot be considered obvious when one considers the
dearth of case law addressing MCARE’s punitive damages subsection on vicarious liability.
A Westlaw search reveals only 25 opinions in which a Court has cited to MCARE’s punitive
damages provision at all. Limiting this search to include opinions that cite to subsection (c)
on vicarious liability, the number shrinks to just 10.74 Although the statute appears to have
been in effect since 2002, the lack of case law suggests that any error was not obvious.
Second, the Court considers the significance of the interests involved and whether the
instructions were such that the jury was without adequate guidance on a fundamental
question. “A jury instruction, taken as a whole, must inform the jury of the correct legal
standard.” Harvey v. Plains Twp. Police Dept., 635 F.3d 606, 612 (3d Cir. 2011). “When a
jury instruction is erroneous, a new trial is warranted unless such error is harmless.” Id. “An
Two of the ten opinions involved PrimeCare as a defendant where it was represented by the same
trial counsel as in this case. Both of those opinions were issued nearly a year before trial in this case. See
Shelton v. Cnty. of Chester, Civil Action No. 13-4667, 2015 WL 5729268, at *1 (E.D.Pa. Sept. 30, 2015);
Shelton v. Cnty. of Chester, Civil Action No. 13-4667, 2015 WL 5460623, at *2 (E.D.Pa. Sept. 16; 2015).
74
181
error is harmless if it is highly probable that the error did not contribute to the judgment.” Id.
(internal citation and quotation marks omitted). The Court finds that any error in the jury
instructions in this respect was entirely harmless beyond a reasonable a doubt.
Finally, the Court considers the reputation of judicial proceedings if the error stands
uncorrected and whether the failure would result in a miscarriage of justice. The Court finds
that there would be no impact whatsoever to the reputation of judicial proceedings if the
alleged error were to stand uncorrected. Nor does the Court believe a miscarriage of justice
would result from the failure to correct the error. The instructions, taken as a whole, make
clear that punitive damages could be imposed against PrimeCare based on its own acts and
omissions, and nothing in the instructions permitted the jury to impose punitive damages
against PrimeCare for the acts and omissions of its agents.
In sum, because the PrimeCare Defendants failed to object to the punitive damages
instruction punitive on this basis, and did not request such an instruction, they can only be
entitled to a new trial if the Court’s failure to include an instruction under 40 P.S. §
1303.505(c) constituted plain error that affected the PrimeCare Defendants’ substantial
rights. The punitive damages instruction was clear and correctly stated the law, and the
PrimeCare Defendants do not argue to the contrary. There is simply no reasonable
possibility that the jury impermissibly awarded punitive damages against PrimeCare based
on the acts and omissions of its agents. Accordingly, the failure to include such an
instruction was not erroneous, but were it so, the error was harmless beyond doubt.
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2.
Evidentiary Rulings
The PrimeCare Defendants next claim they are entitled to a new trial as a result of
several erroneous evidentiary rulings. Because Dr. Thomas raises many of the same
issues, the Court will consider them together. Specifically, the PrimeCare Defendants and
Dr. Thomas claim they are entitled to a new trial based on the following evidentiary errors:
(1) precluding evidence of Mr. Barbaros’ criminal charges; (2) prohibiting the introduction of
evidence in the form of a statement allegedly made by Mr. Barbaros to a correctional officer;
(3) permitting evidence of the misspelling of Mr. Barbaros’ first name; and (4) permitting Mr.
Barbaros’ daughter to testify at trial. (Doc. 377, at 43-50). They also allege several
additional errors in their motions, but fail to address these alleged errors in their briefs in
support. The Court will address each in turn.
A district court’s “latitude on a new trial motion is broad when the reason for interfering
with the jury verdict is a ruling on a matter that initially rested within the discretion of the
court, e.g., evidentiary rulings.” Klein, 992 F.2d at 1289-90 (citations omitted); see also
Lawler v. Richardson, Civil Action No. 10-196, 2012 WL 2362383, at *3 (E.D. Pa. June 20,
2012) (“The trial court has broad discretion to exclude evidence under Rule 403.”) (citing
Cowgill v. Raymark Indus., Inc., 832 F.2d 798, 806 (3d Cir. 1987)).
a. The Criminal Charges Filed Against Mr. Barbaros
Before trial, the PrimeCare Defendants and Dr. Thomas filed a motion in limine to
“Permit Evidence Concerning or Reasonably Relating to the Criminal Charges Issued
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Against Plaintiffs’ Decedent, Mumun Barbaros.” (Doc. 203). Plaintiffs filed a somewhat
similar motion to “Preclude from Trial any Reference to Specific Crimes Decedent Mumun
Barbaros was Alleged to Have Committed, His Religious Faith of Islamic Muslim, and the
Impact any Speculative Conviction Could Have on Plaintiffs’ Damages.” (Doc. 228).
According to the Defendants’ motion in limine, evidence of the criminal charges was
relevant for two reasons. First, evidence of the charges filed against Mr. Barbaros “will offer
insight into Mr. Barbaros’ state of mind leading up to his suicide.” (Doc. 203, at 2-3). They
note that Dr. Thomas’ expert, Dr. Susan Rushing, opined that it was the severity of the
criminal charges against Mr. Barbaros, and not the acts and omissions of Dr. Thomas or the
PrimeCare Defendants, that caused Mr. Barbaros to commit suicide. Id. Second, the
PrimeCare Defendants argued that the criminal charges were relevant to the crossexamination of Plaintiffs’ economics expert, David L. Hopkins, in relation to Mr. Barbaros’
future lost earning capacity. Specifically, Defendants alleged that:
Mr. Barbaros’ alleged motivations in vandalizing multiple competing
businesses is probative of the health of his own business and whether the
future projections of business loss and/or profit are reasonable and based
upon reliable facts. Moreover, Mr. Barbaros’ charges were made public,
covered by local news channels and it certainly could be argued that the
charges themselves would have had a chilling effect on his business.
Additionally, Mr. Barbaros would not have been available to run his own
business while incarcerated as a pretrial detainee and, as such, argument
could certainly be made that his profits would have either been non-existent
or severely diminished.
(Doc. 246, at 3).
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Throughout their pretrial submissions, the Defendants repeatedly emphasized that the
purpose of introducing evidence concerning the nature and extent of the criminal charges
filed against Mr. Barbaros “is not to place the decedent, Mumun Barbaros, in an unfavorable
light in front of the jury nor is the purpose to inflame the passions of the jury or to taint the
jury. Rather, the purpose of presenting such evidence is for its probative value.” (Doc. 204,
at 4).
The Court granted Plaintiffs’ motion in limine and denied Defendants’ motion in limine,
concluding that evidence concerning or reasonably relating to the crimes that Mr. Barbaros
was charged with was irrelevant to the issues in this litigation.75 (Doc. 271, at 3). The Court
further found that “even if such evidence were minimally relevant . . . its probative value
would be substantially outweighed by the danger of unfair prejudice.” (Id.). The Court ruling
was not erroneous. The nature and extent of the specific charges Mr. Barbaros was
charged with, but never convicted of, had little, if any, relevance to actual issues in this
litigation. And even if the criminal charges were relevant, the Court reasonably concluded
that the probative value of this evidence was substantially outweighed by the danger of
unfair prejudice to the Plaintiffs.
“A trial court is afforded substantial discretion when striking a Rule 403 balance with
respect to proffered evidence.” Mckenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir.
2009) (internal citation and quotation marks omitted); see also Bhaya v. Westinghouse Elec.
75
The Order did not deny the motion with prejudice. (Doc. 272).
185
Corp., 922 F.2d 184, 188 (3d Cir. 1990) (“[A] trial judge’s decision to admit or exclude
evidence under Fed. R. Evid. 403 may not be reversed unless it is arbitrary and irrational.”)
(internal citation and quotation marks omitted). Unfair prejudice may arise if evidence
“influence[s] a jury to return a verdict based on a desire to punish for . . . other wrongs.”
Bhaya, 922 F.3d at 188. Here, the Court, in exercising its discretion, concluded that
Plaintiffs sufficiently demonstrated to the Court’s satisfaction that evidence of the nature and
extent of the specific charges could “cloud [] impartial scrutiny and reasoned evaluation of
the facts, [and] which inhibit[s] neutral application of principles of law to the facts as found.”
Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 525 (3d Cir. 2003) (internal
citation and quotation marks omitted). Thus, exclusion under Rule 403 was warranted.76
Even if the Court’s ruling was in error, for the reasons that follow it was not such prejudicial
error as to warrant a new trial.
First, to the extent the Defendants maintain that the charges against Mr. Barbaros were
relevant to his state of mind leading up to his suicide, and that the Court’s ruling precluding
evidence of the nature and extent of the charges unfairly prejudiced them, it is important to
There can be no doubt that substantial prejudice could have resulted if the jury had heard that Mr.
Barbaros was charged with, for example, “nearly forty” crimes including, among others, “causing
catastrophe.” Further, Defendants were not precluded from presenting evidence “reasonably relating” to
the charges against Mr. Barbaros. The Defendants were able to present to the jury evidence from which it
reasonably could infer that the criminal charges, and not any of the Defendants’ acts and omissions,
caused Mr. Barbaros to commit suicide. The jury was well aware that Mr. Barbaros committed suicide
shortly after his arraignment, at which both his bail and the charges were increased. The jury, instead,
chose not to believe Defendants’ theory of the case.
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recognize that none of the Defendants were precluded from eliciting testimony to this effect.
For example, Dr. Thomas’ psychiatric expert, Dr. Susan Rushing, testified as follows:
Mr. Hill:
Without being specific, with regard to Mr. Barbaros and the
charges, was that significant to you, in view of this case, with
regard to Mr. Barbaros and his suicide?
Dr. Rushing: In terms of the timing that he had just been in a courthouse,
where he learned about his charges and where his bail was
increased.
Mr. Hill:
What is your opinion as to why he committed suicide?
Dr. Rushing: I believe he felt a certain level of distress over being in jail and
incarcerated and being uncertain about his future.
She also raised this issue several additional times in her testimony. See Sept. 13, 2017
Trial Tr. at 162:7-21; 196:23-197:3 (testifying that Paxil can cause insomnia “for some
individuals, but so can someone’s legal situation and stress related to their legal situation”);
207:16-208:12 (“It could also be adjustment disorder to being incarcerated and having
criminal charges.”).
The PrimeCare Defendants’ correctional psychiatry expert, Dr. Cheryl Wills, also
presented similar testimony:
Mr. Ninsoky: Why do you believe that Mr. Barbaros committed suicide?
Dr. Wills:
There were a number of things going on. He was incarcerated
for the first time in his life. His charges—the number of charges
kept increasing, they were published in the newspaper, which
had implications for his business
Mr. Chacker: Objection, Your Honor. Move to strike the last comment. That’s
pure speculation.
187
Mr. Ninsoky: I think we have already had testimony from Mr. Ponzini on that
point.
The Court:
We absolutely have. Overruled.
Dr. Wills:
So in terms of his income, that was a stressor because he’s the
primary provider for his family. He also had told his wife that he
was going to be out the following week and be back at work.
But if your bond increases and you have all these other
confining stressors, and you can’t bring yourself to tell your wife
that you might need more money to get out of prison, and your
customer base may be declining, that’s tremendous stress.
That’s a perception that you’re not the success you were,
before you entered the facility. That’s a lot to introduce into a
marriage and into yourself, your perceptions of yourself. So
things are going downhill fast.
Mr. Ninsoky: Is that what you believe was what would cause the impulse of
suicide?
Dr. Wills:
Yes, I think those are huge stressors, especially, when you’re
left in a room to contemplate what’s going on in your life, and
you’re doing that at night, you have—you’re tormented by it.
Sept. 14, 2016 Trial Tr. at 33:7-34:9. Despite the Court’s denial of their motion, Defendants
were no doubt permitted to present evidence “reasonably relating” to the charges against
Mr. Barbaros – the very relief they sought in their motion.77
Evidence of the nature and extent of the criminal charges filed against Mr. Barbaros also
had little, if any, relevance to Defendants’ ability to challenge Plaintiffs’ future lost earnings
capacity and the probative value, if any, was substantially outweighed by the risk of unfair
Counsel for both the PrimeCare Defendants and Dr. Thomas also extensively presented this theory
of the case (i.e., the criminal charges were why he committed suicide) during closing arguments.
77
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prejudice. Defendants merely speculate that it “could be argued that the charges
themselves would have had a chilling effect on his business” or “his profits would have
either been non-existent or severely diminished.”78 (Doc. 246, at 3). But the speculative
nature of such evidence and argument, when weighed against the potential prejudicial
effect, did not warrant admission of the evidence concerning the nature and extent of the
criminal charges.
Finally, the Defendants argue that evidence of the nature and extent of the criminal
charges “was particularly relevant to counter Plaintiffs’ efforts to paint the picture of a
successful business and family man, when the additional charges were directly related to
Barbaros’ effort to burn down his competitor’s business due to a failing business. The jury
was provided a fictitious picture of reality without the Defendants being able to challenge
that picture with evidence which was directly contradictory.” (Doc. 377, at 45). A review of
the record, however, reveals that the PrimeCare Defendants and Dr. Thomas were
permitted to, and did, cross-examine Plaintiff Peter Ponzini regarding the publicity
surrounding the charges and the effect the charges could have had on Mr. Barbaros’
business and reputation in the community, and the jury was free to take this into account
when weighing the evidence without getting into the specific nature of the charges. Sept.
12, 2016 Trial Tr. at 176:1-190:24.
Defendants were permitted to, and did, cross-examine Mr. Hopkins regarding his calculations, noting
that they were based on a “mythical person” and were not “based upon any of the hard numbers that were
actually for Mr. Barbaros.” Sept. 12, 2016 Trial Tr. at 218:11-223:25. Neither the PrimeCare Defendants
nor Dr. Thomas presented expert testimony to contradict Mr. Hopkins’ calculations.
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Defendants were still able to present their theory of the case without getting into the
specifics of the nature and extent of the criminal charges; charges for which Mr. Barbaros
was presumed innocent under the law and was never convicted of by a court of law. The
Court’s error, if any, was harmless. See Fed. R. Civ. P. 61 (“Unless justice requires
otherwise, no error in admitting or excluding evidence - or any other error by the court or a
party - is ground for granting a new trial, for setting a verdict, or for vacating, modifying, or
otherwise disturbing a judgment or order. At every stage of the proceeding, the court must
disregard all errors and defects that do not affect any party’s substantial rights.”). The
Defendant must show that any error committed by the Court “was prejudicial.” Forrest v.
Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005). In sum, evidence of the nature and extent of
the specific crimes Mr. Barbaros was charged with, but never convicted of, were irrelevant
to the issues of this case. Even if the nature and extent of the criminal charges were
relevant, the Court correctly exercised its discretion under Federal Rule of Evidence 403 to
preclude such evidence. Accordingly, the PrimeCare Defendants and Dr. Thomas are not
entitled to a new trial on this ground.
b. Preclusion of Alleged Statement to Correctional Officer Ryan
Next, the PrimeCare Defendants and Dr. Thomas claim they are entitled to a new trial
based on the Court’s erroneous preclusion of evidence in the form of statements allegedly
made by Mr. Barbaros to correctional officers at the MCCF. Before trial, Plaintiffs filed a
motion in limine asking the Court to preclude any references to alleged statements made by
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Mr. Barbaros to correctional officers on the basis that such statements are inadmissible
hearsay. (Doc. 230). The only statement at issue concerned the testimony of correctional
officer Jonathan K. Ryan who testified at his deposition that Mr. Barbaros “promised to
make him a pizza” once he was released from prison “because Mr. Ryan was a good guy.”
(Doc. 275, at 5). The PrimeCare Defendants opposed Plaintiffs’ motion, claiming that the
statement was admissible under Federal Rule of Evidence 801(d)(2) as an admission by a
party-opponent. Alternatively, they claimed the statement was admissible under the
residual exception to the hearsay rule found in Federal Rule of Evidence 807. (Doc. 246 at
9-10).
The Court granted Plaintiffs’ motion and precluded evidence that Mr. Barbaros allegedly
told Mr. Ryan that he “promised to make him a pizza” once he was released from prison
“because Mr. Ryan was a good guy.”79 (Doc. 276). Addressing the PrimeCare Defendants’
argument that the statement was admissible as an admission by a party-opponent, the
Court found that the “statement at issue does not fall within the ambit of Rule 801(d)(2)” and
was not admissible under the Rule as claimed by the PrimeCare Defendants. (Doc. 275, at
7). The Court further found that the statement failed to satisfy Rule 807’s residual hearsay
exception, concluding that the Rule applies “only in exceptional circumstances.” (Id.).
The Court granted Plaintiffs’ motion “with the caveat that the Court’s decision pertains only to the
statement identified by Plaintiffs concerning Mr. Barbaros’ statement to correctional officer Ryan that he
would make him a pizza when he got out of prison.” (Doc. 275, at 9-10). The Court reserved decision “on
any other hearsay statements Mr. Barbaros is alleged to have made to correctional officers that Defendants
may seek to introduce.” Id. Defendants did not seek to introduce any other statement.
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The Defendants now claim, for the first time, that the Court’s ruling was erroneous
because the statement was admissible under Federal Rule of Evidence 803(3). A review of
the PrimeCare Defendants’ brief in opposition to Plaintiffs’ motion in limine, however, shows
they never previously advanced such an argument before the Court. (Doc. 246, at 9-10).
Rather, the PrimeCare Defendants only claimed that the statement was admissible as an
admission by a party-opponent pursuant to Federal Rule of Evidence 801(d)(2) and under
the residual hearsay exception in Rule 807. Although Dr. Thomas filed a brief in opposition
to Plaintiffs’ motion in limine on August 24, 2016 where he presented these arguments
(Doc. 280), it was untimely under the Local Rules and was filed after the Court ruled on
Plaintiffs’ motion.80 Contrary to counsel’s misrepresentations, the Court did not “specifically
reject[] the Defendants’ contention that Barbaros’ statement went to his present state of
mind and, therefore, was exempt from the rule against hearsay.” (Doc. 391, at 38-39).
Rather, the Court did not rule on this basis because the brief was untimely and counsel for
Dr. Thomas or the PrimeCare Defendants never raised this issue again, either before or
during trial.81
Local Rule 7.6 provides, among other things, that “[a]ny party opposing any motion, other than a
motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the
movant's brief . . . Any party who fails to comply with this rule shall be deemed not to oppose such motion.”
M.D. Pa. L.R. 7.6 (emphasis added). Dr. Thomas did not file a brief in opposition within fourteen days.
Notably, Dr. Thomas’ untimely brief was one of approximately seventy briefs and motions filed by the
parties in the month before trial. (Docs. 201-267, 278, 280-289).
80
“Thus, a party who unsuccessfully opposes an in limine motion to exclude certain evidence can
appeal that ruling without an offer of proof at trial if the district court was fully informed and made a pretrial
ruling with no suggestion that it would reconsider that ruling at trial.” Walden v. Georgia-Pacific Corp., 126
F.3d 506, 519 (3d Cir. 1997) (emphasis in original). “Concomitantly, where a district court makes a
81
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The PrimeCare Defendants are not entitled to a new trial based on the Court’s
preclusion of Mr. Barbaros’ alleged statement to Mr. Ryan because, for the reasons set forth
in the Court’s memorandum opinion, (Doc. 275), the statement was not admissible under
either Federal Rule of Evidence 801(d)(2) or Rule 807—the two specific Rules that the
PrimeCare Defendants advanced in support of admission. The PrimeCare Defendants do
not argue otherwise in their motion or brief in support thereof. To the extent that the
statement was not hearsay and/or admissible pursuant to Rule 803(3), Dr. Thomas did not
timely advance these arguments by filing a timely brief in opposition prior to the Court’s
ruling. And, notably, at no time during trial did he ask the Court to reconsider its decision by
raising the admissibility of the statement under Rule 803(3).
Even if the Court were to assume that the statement was admissible pursuant to Federal
Rule of Evidence 803(3), and that the Court erred in precluding the evidence of Mr.
Barbaros’ statement to Mr. Ryan, the Defendants have not and cannot demonstrate any
prejudice from the Court’s exclusion of the evidence. Any error in the Court’s failure to
admit the statement under Rule 803(3) was invited error because the PrimeCare
Defendants only argued that the statements were admissible under Rules 801(d)(2) and
807, and never claimed it was admissible under Rule 803(3). See Lima v. Newark Police
Dept., 658 F.3d 324, 333 n.2 (3d Cir. 2011) (“The doctrine of invited error refers to an error
that a party cannot complain of . . . because the party, through conduct, encouraged or
tentative in limine ruling excluding evidence, the exclusion of that evidence may only be challenged on
appeal if the aggrieved party attempts to offer such evidence at trial.” Id. (emphasis in original).
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prompted the trial court to make the erroneous ruling.”) (internal citation and quotation
marks omitted). Dr. Thomas only advanced such an argument after the Court had already
ruled, and did not raise this issue at any time during the trial.
Finally, the PrimeCare Defendants and Dr. Thomas make little, if any, effort to argue
exactly how they were prejudiced by the Court’s ruling. Notably, Mr. Ryan was not
precluded from testifying at trial. He testified, without getting into the specifics of the
conversation, that he spoke to Mr. Barbaros in the hours before he committed suicide and,
based on his interactions, Mr. Barbaros did not appear to be suicidal. Dr. Rushing also
echoed Mr. Ryan’s testimony, testifying that “at no time did Barbaros give him a reason to
believe that he was going to commit suicide. Ryan stated that Barbaros was quiet and
didn’t give him any problems.” Sept. 13, 2016 Trial Tr. at 226:8-227:7. When asked
whether the correctional officers monitoring Mr. Barbaros on the night of his suicide saw
anything that they needed to relay to the Medical Department that was of concern, Dr. Wills
testified “absolutely not.” Sept. 14, 2016 Trial Tr. at 30:18-31:20. Defendants were not
precluded from arguing that Mr. Ryan’s alleged interactions with Mr. Barbaros gave no
indication of suicide – the very reason they sought to introduce the statement. Under the
circumstances, the PrimeCare Defendants and Dr. Thomas cannot and have not
demonstrated prejudicial error warranting a new trial.
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c. Permitting Evidence of the Misspelling of Mr. Barbaros’ First Name
The PrimeCare Defendants also seek a new trial due to the Court’s alleged error in
permitting evidence of the misspelling of Mr. Barbaros’ first name. The entirety of the
PrimeCare Defendants’ argument is as follows:
PrimeCare Defendants filed a Motion to Preclude Evidence and/or Testimony
of the Misspelling of Decedent’s Name as Being the Source and Cause of
Failure to Verify Medications. (Doc. 217). This Court denied the Motion
through Order (Doc. 276) and Memorandum Opinion (Doc. 275). This Court
abused its discretion in denying the Motion. PrimeCare Defendants
incorporate by reference their argument in Section A(1)(a) above.
(Doc. 377, at 48-49). The arguments set forth in Section A(1)(a) concern Defendant Paul
James’ alleged entitlement to judgment as a matter of law on Plaintiffs’ deliberate
indifference claim. The Court finds that the PrimeCare Defendants’ arguments lack merit.
In a pretrial motion in limine, the PrimeCare Defendants moved to preclude “evidence
and/or testimony of the misspelling of decedent’s name as being the source and cause of
failure to verify medicines.” (Doc. 217). The PrimeCare Defendants argued that any
testimony from Plaintiffs’ expert Kathy Wild concerning the Defendants’ “careless”
completion of screening documents fails Daubert’s reliability requirement because it is “not
based in fact or evidence.” (Id. at 2-3). Specifically, the PrimeCare Defendants’ arguments
focused exclusively on the fact that Mr. Barbaros was identified by several different names
both at CVS pharmacy and by his own family physician. (Doc. 218, at 5-6). Thus, they
argued to allow testimony that the misspellings contributed to a delay is “erroneous” and to
“allow Plaintiffs’ expert to draw conclusions about PrimeCare’s record-keeping and to opine
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that any delay was due to the ‘careless’ record-keeping of the Defendant is not based in fact
or evidence.” (Id. at 6).
Plaintiffs set forth three arguments in response to Defendants’ motion in limine: (1)
“there is evidence in the record which shows Mr. Barbaros’ name being misspelled several
times[; t]hese misspellings were relied on by the defendant nurses in attempting to verify the
medications”; (2) “the numerous misspellings of Mr. Barbaros’ name support Ms. Wild’s
opinion that the intake was the beginning of a downward spiral of carelessness displayed by
the defendants that led to Mr. Barbaros’ ultimate demise”; and (3)“defendants never asked
Mr. Barbaros during his intake or at any time during his detention whether he used any
other name or nickname that could be used to verify his medications; something that
reasonably and easily could and should have been done.” (Doc. 254, at 2-3).
The Court denied the PrimeCare Defendants’ motion, (Doc. 276), and rejected the
argument that Nurse Wild’s opinion failed Daubert’s reliability requirement because it was
not based in fact or evidence, concluding that:
It is for the jury to determine whether Defendants’ misspelling of decedent’s
name contributed to a delay in treatment and was causally connected to his
death. Moreover, the Court is not convinced by Defendants’ arguments that
Nurse Wild’s proposed testimony with respect to the careless completion of
screening documents and the misspelling of decedent’s name are ‘not based
in fact or evidence’ such that Daubert’s reliability requirement requires the
exclusion of her testimony on this issue. Accordingly, Defendants’ Motion will
be denied.
(Doc. 275, at 4). The Court stands by this ruling and the PrimeCare Defendants are not
entitled to a new trial based on the denial of their motion and the Court’s decision permitting
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testimony about the misspelling of Mr. Barbaros’ name. In seeking to preclude the opinion
of Nurse Wild, the PrimeCare Defendants relied on the fact that Mr. Barbaros used
nicknames at CVS and with his family physician. They made no attempt to argue then, and
do not attempt to argue now, exactly how Nurse Wild’s opinion did not satisfy Daubert’s
reliability requirement and was not based in facts or evidence.82 Accordingly, the Court
finds that permitting Nurse Wild to testify in this respect was not erroneous and, even if it
were erroneous, the PrimeCare Defendants are not entitled to a new trial as a result.
First, the Court did not deny the PrimeCare’s motion with prejudice, and it does not
appear that they ever asked the Court to reconsider its ruling.
Second, the PrimeCare Defendants were able to, and did, present testimony that Mr.
Barbaros used the name “Martin” at CVS, arguing to the jury that these different names,
rather than the PrimeCare Defendants’ conduct, contributed to a delay in the verification of
medication. These facts, like the fact that Mr. Barbaros’ name was misspelled multiple
times on the intake forms and the resulting delay in verifying his medications, were facts in
evidence for the jury to consider. It did not make Nurse Wild’s testimony so unreliable as to
Daubert’s reliability analysis requires a Court to consider, among other things: “(1) whether a method
consists of a testable hypothesis; (2) whether the method has been subjected to peer review; (3) the known
or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s
operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods
which have been established to be reliable; (7) the qualifications of the expert witness testifying based on
the methodology; and (8) the non-judicial uses to which the methods have been put.” In re Paoli R.R. Yard
PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994). The testimony must also “‘fit,’ in that it must assist the trier
of fact.” Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000). “This standard is not intended to be a
high one. . .” Id. The Court “must examine the expert’s conclusions in order to determine whether they
could reliably flow from the facts known to the expert and the methodology used.” Heller v. Shaw Indus.,
Inc., 167 F.3d 146, 153 (3d Cir. 1999).
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warrant exclusion under Daubert. Both at trial and at the time the motion was decided, it
was readily apparent that Nurse Wild’s testimony “could reliably flow from the facts known to
the expert and the methodology used.” Heller, 167 F.3d at 153. Nurse Wild was amply
qualified to testify, extensively reviewed the documents in this case, and her opinion was
based on facts in the record and her knowledge. The PrimeCare Defendants’ argument that
Mr. Barbaros’ name was spelled differently at CVS does not establish that Nurse Wild’s
opinion could not reliably flow from the facts known and the methodology used.
Third, Nurse Wild was precluded from offering testimony that any of the PrimeCare
Defendants’ conduct was a factual cause of Mr. Barbaros’ suicide. She was, however,
permitted to offer an opinion that their acts and omissions increased the risk of harm to Mr.
Barbaros. To the extent the Defendants complain that Nurse Wild was permitted to testify
that Mr. James’ misspelling of Mr. Barbaros’ name was the factual cause of him committing
suicide, she was not so permitted. Moreover, Nurse Wild conceded on cross-examination
that Mr. James’ misspellings did not delay the verification process for Mr. Barbaros. Sept.
8, 2016 Trial Tr. at 261:15-263:3. In any event, PrimeCare’s arguments about Nurse Wild’s
opinion go to weight, not to admissibility, of her testimony. See In re Tylenol
(Acetaminophen) Mktg., Sales Practice, & Prods. Liab. Litig., Civil Action No. 2:12-cv07263, 2016 WL 4039286, at *6 (E.D. Pa. July 28, 2016) (finding “nothing inappropriate”
about expert’s “calculations . . . given their purpose and the context within which they [were]
used” and noting that defendant’s arguments “go to weight, not admissibility”); see also
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Hartle v. FirstEnergy Generation Corp., 7 F. Supp. 3d 510, 516 (W.D. Pa. 2014) (“To the
extent that the other field observations are inconsistent with [the expert’s] predictions, that
evidence goes to weight, not admissibility.”). The PrimeCare Defendants were able to
cross-examine Nurse Wild and undermine her opinion. Her testimony satisfied Daubert’s
reliability requirement and did not warrant wholesale exclusion.
Finally, even assuming it was error to permit Nurse Wild to testify in this respect, the
PrimeCare Defendants “must also show that the error was prejudicial.” Forrest, 424 F.3d at
349. They make no argument whatsoever in their post-trial brief as to how the Court’s
ruling, if error, was prejudicial error. Under the circumstances, the PrimeCare Defendants
are not entitled to a new trial on this basis.
d. Permitting Mumtaz Barbaros to Testify
The PrimeCare Defendants and Dr. Thomas also request a new trial based on the
Court’s alleged error in permitting Mr. Barbaros’ daughter, Mumtaz Barbaros, to testify.
Prior to trial, the PrimeCare Defendants and Dr. Thomas filed a motion in limine to
“Preclude Testimony of Decedent’s Children.” (Doc. 221). Plaintiffs represented to the
Court that they did not intend to present decedent’s children as witnesses at trial because
they were currently living in Bulgaria and would be unable to travel to the United States.
(Doc. 248). Accordingly, the Court denied the Defendants’ motion as moot. (Doc. 268).
At the conclusion of the second day of trial, counsel for the Plaintiffs informed the Court
that Mr. Barbaros’ 15-year-old daughter Mumtaz was presently in the United States and that
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“he would like to call her as a damages witness only, maybe, for 10 minutes.” Sept. 7, 2016
Trial Tr. at 215:12-14. Six days before informing the Court, Plaintiffs’ counsel informed
Defendants’ counsel of Mumtaz’s presence in the United States and of his intention to call
her to testify at trial. He also offered to make her available for a deposition prior to trial. Id.
at 215:15-20. Counsel for the Defendants objected to calling Mr. Barbaros’ daughter to
testify because: (1) she was never identified as a witness; and (2) it was not feasible to
depose her prior to or during the trial.83 Id. at 215:23-216:9. The Court reserved final ruling
on the issue. Id. at 218:7.
The issue of the testimony of Mr. Barbaros’ daughter was again raised on September
12, 2016, the fifth day of trial. Counsel for the Defendants again asserted their objections to
the testimony based on the failure to identify Mumtaz on the witness lists and also claimed
that Mumtaz’s testimony was unnecessary because both Mrs. Barbaros and Peter Ponzini
testified to “the issue of guidance and tutelage.” Thus, the PrimeCare Defendants and Dr.
Thomas claimed precluding Mumtaz from testifying would not prejudice the Plaintiffs. Sept.
12, 2016 Trial Tr. at 193:13-194:1. The Court then stated:
In raising their objections, the Defendants “stood by” their pre-trial motion in limine, which the Court
had denied as moot based on Plaintiffs’ counsel’s representations that he did not intend to call either of Mr.
Barbaros’ daughters to testify because they were not in the United States. (Doc. 221). The Defendants
sought preclusion of the children’s testimony as they alleged it would “have no relevance to the underlying
wrongful death and survival action as they would not be able to provide testimony as to the value of
services, comfort, companionship, guidance and/or tutelage.” (Id. at ¶ 7). Thus, they maintained that the
“children’s testimony could only be limited to emotional trauma as a result of the suicide,” and that “[t]his
type of testimony is improper, irrelevant, and highly prejudicial” and would “do nothing more than inflame
the passion of the jury in an effort to garner sympathy for the Plaintiffs’ case.” (Id. at ¶¶ 8-9).
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Well, gentlemen, I have looked at the case law on this and, in particular, the
decision of our circuit in Konstantopoulous v. Westvaco Corporation, 112 F.3d
710, which, in turn, relies on a decision cited by Mr. Chacker in his
memorandum which is Meyers v. Pennypack Woods Home Ownership
Association, 559 F.2d 894, and these cases talk about the circumstances
under which a District Court should exclude testimony.
And these cases repeat the basic proposition—and I’m quoting right now—
that quote ‘The exclusion of critical evidence is an extreme sanction not
normally to be imposed absent a showing of willful deception or flagrant
disregard of a Court Order by the proponent of the evidence.’
In this particular instance, I find no flagrant disregard of a Court Order nor do I
find willful deception in this particular instance. In response to your motion in
limine, to preclude the children from testifying, Mr. Chacker reported that the
children, both daughters, were in Bulgaria, and that, therefore, they would not
be expected to testify, since they wouldn’t be in the United States.
He subsequently learned that, at least one of the daughters would be able to
testify and so notified us. So I see no disregard of rules, I see no bad faith
here whatsoever, either on the part of the Barbaros daughter or on the part of
Mr. Chacker.
So I think, in this particular instance, that it’s my obligation to allow the
daughter to testify because, again, as we all know, I’ll be instructing the jury
one of the components in this case, should the jury find liability, would be the
losses that flow to Mr. Barbaros’ daughter by virtue of his death. And it
seems inappropriate for me, at a minimum, to preclude her from testifying
about the losses that she’s suffered that are personal to her, as a result of her
father’s death.
Now, I know that, among the considerations that I have to pay attention to in
something like this is whether there’s any prejudice to the parties who oppose
this testimony or surprise. In my view, the kind of testimony Mr. Chacker has
represented that Mumtaz Barbaros would present should be of no surprise,
given the nature of her relationship with the decedent. Number one.
Number two, to the extent that you wish I will require Mumtaz Barbaros to
submit to a deposition, and we will work the particulars out of when, but I
would require her to do so should you want to.
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Thirdly, I don’t think it’s going to disrupt the orderly and efficient trial of this
case, we seem to be moving along rather smoothly here, and given what I
think would be the relatively short testimony she would offer, I don’t think
there’s any issue with respect to disruption. And, again, there’s no bad faith
here that I’m able to discern and no willful disregard, as well.
So gentlemen, I think I’m bound to allow Mumtaz Barbaros to testify in this
case. The only question is whether you wish to depose her prior to her
testimony.
Id. at 194:2-196-7. The Court noted, however, that it would not permit Mumtaz to testify
without counsel for the Defendants having an opportunity to depose Mumtaz Barbaros prior
to her testimony at trial. However, counsel for the Defendants chose to decline the Court’s
invitation. Id. at 197:8-198:6.
Defendants seek a new trial based on the Court’s decision to permit Mumtaz Barbaros
to testify. According to the PrimeCare Defendants, the Court erred by permitting the
testimony because: (1) Mumtaz was not identified as a trial witness; (2) Plaintiffs never
opposed Defendants’ motion in limine; and (3) Mumtaz’s testimony unfairly prejudiced them.
The Court will address each in turn.
First, it is undisputed that Mumtaz was not identified on Plaintiffs’ witness list in
accordance with Federal Rule of Civil Procedure 26(a)(3)(A). It does not follow, however,
this required the per se exclusion of her testimony. Federal Rule of Civil Procedure 37(c)(1)
provides that where, as here, a party fails to identify a witness in accordance with Rule
26(a), “the party is not allowed to use the information or witness to supply evidence . . . at
trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
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In considering whether a failure to disclose a witness is harmless, Courts must consider: (1)
“the prejudice or surprise of the party against whom the excluded evidence would have
been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which
allowing the evidence would disrupt the orderly and efficient trial of the case or other cases
in the court; and (4) bad faith or willfulness in failing to comply with a court order or
discovery obligation.” Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir.
2000) (citing Konstantopoulous, 112 F.3d at 719)). Considering the facts and these four
factors, the Court concluded that Plaintiffs’ failure to identify Mumtaz as a witness was
harmless and permitted her to testify, subject to Defendants’ counsel having the opportunity
to depose her. The Court stands by its ruling.84
Second, Defendants allege that the Court’s ruling unfairly prejudiced them. Although
they recognize that the Court’s ruling permitting Mumtaz to testify was contingent on
requiring her to sit for a deposition prior to testifying at trial, they represented that:
It is not feasible to conduct any sort of discovery into what Mumtaz Barbaros
was going to say when she was not identified until trial. It is simply not
enough to take a deposition to elicit what testimony may be. It is also
necessary to have time to obtain evidence to potentially impeach the
testimony. The late disclosure of this witness prejudiced the Defendants.”
Defendants also claim that the Court erred in permitting Mumtaz to testify because Plaintiffs did not
oppose Defendants’ motion. Plaintiffs filed a response to Defendants’ motion indicating that they did not
oppose the motion and requesting the motion be denied as moot. (Doc. 248). The Court denied
Defendants’ motion as moot. (Doc. 268). Defendants do not cite any authority for the proposition that
Plaintiffs’ indication that they did not oppose the motion and the Court’s subsequent denial of the motion as
moot, would thereafter preclude them from seeking reconsideration of the ruling based on changed
circumstances.
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(Doc. 377, at 49-50).85
Defendants only claim of unfair prejudice set forth in their briefs is the late disclosure,
not the content itself, of Mumtaz’s testimony, likening the Court’s ruling to a “trial by
ambush.” (Doc. 391, at 43).
The Court finds that the late disclosure of Mumtaz as a witness did not prejudice the
Defendants, for substantially the reasons set forth on the record. The Defendants’ argument
that they lacked sufficient time to obtain evidence to impeach her testimony is unavailing. On
Thursday, September 1, 2016, Plaintiffs’ counsel first notified counsel for the Defendants that
he intended to call Mumtaz as a witness. This trial was scheduled to commence five days
later on Tuesday, September 6. However, Mumtaz did not testify at trial until September 13,
2016. This gave counsel for the Defendants approximately two weeks to assemble sufficient
“impeachment” evidence. This was ample time to prepare and certainly does not constitute
such unfair prejudice as to warrant a new trial. Defendants do not suggest what type of
“impeachment” evidence they hoped to have obtained, but were unable to, because of the
purported time constraints. Finally, it is worth noting that the PrimeCare Defendants and Dr.
Thomas not only declined the opportunity to take Mumtaz's deposition, but also declined to
cross-examine her at trial.86 Sept. 13, 2016 Trial Tr. at 8:24-9:2. The PrimeCare Defendants
and Dr. Thomas are not entitled to a new trial on this ground.
85
Defendants requested, and received, a formal offer of proof. Sept. 12, 2016 Trial Tr. at 198:1-19.
86
Mumtaz’s testimony at trial was brief; ten minutes at most. Sept. 13, 2016 Trial Tr. at 3:15-8:22.
204
e. Preclusion of Testimony Regarding Alleged Misconduct of
Correctional Officer Jesse Cleare
The PrimeCare Defendants and Dr. Thomas next claim that the Court’s preclusion of
testimony concerning the alleged misconduct of former MCCF Correctional Officer Jesse
Cleare was in error.87 This assertion lacks merit. Before trial, Defendant Monroe County
filed an omnibus motion in limine asking the Court to preclude, among other things,
“misconduct by former MCCF Correctional Officer Jesse Cleare.” (Doc. 201). None of the
parties, including Dr. Thomas and the PrimeCare Defendants, filed a brief in opposition to
the motion.
Local Rule 7.6 provides, in relevant part, that “[a]ny party opposing any motion, other
than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days
after service of the movant's brief . . . Any party who fails to comply with this rule shall be
deemed not to oppose such motion.” M.D.Pa. L.R. 7.6 (emphasis added). Because no
party, including the PrimeCare Defendants and Dr. Thomas, filed a brief opposing the
motion, they were deemed not to oppose the motion. Accordingly, the Court granted the
motion and precluded evidence of the alleged misconduct. (Doc. 279). At no time thereafter,
either before or at trial, did any party ask the Court to reconsider its order granting
Defendant Monroe County’s motion as unopposed. Under these circumstances, the
The PrimeCare Defendants, unlike Dr. Thomas, do not brief this issue. As a result, the PrimeCare
Defendants have abandoned this argument.
87
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PrimeCare Defendants and Dr. Thomas’ claims of prejudicial error warranting a new trial are
entirely without merit. 88
f. Unpreserved Claims of Error
Finally, Dr. Thomas and the PrimeCare Defendants claim in their motions that the Court
made several additional erroneous evidentiary rulings entitling them to a new trial.
Specifically, the Court purportedly erred by: (1) permitting testimony from Mr. Barbaros’ wife
and daughter about their “grief and anguish” suffered as a result of his death; (2) permitting
introduction of autopsy photographs; and (3) denying the PrimeCare Defendants’ motion to
preclude evidence concerning the negligence of William Buffton. Neither Dr. Thomas nor
the PrimeCare Defendants set forth any argument on these issues in their supporting briefs.
First, the Court did not err in granting in part and denying in part Defendants’ motion to
“preclude Plaintiffs from asserting a claim for solatium damages.” (Doc. 274). The Court
made no error, let alone prejudicial error entitling Defendants to a new trial, for substantially
the reasons set forth in the memorandum opinion granting in part and denying in part
Defendants’ motion. (Doc. 273 at 1-4). As the Court noted: “because there can be no
recovery for grief and mental anguish as a result of decedent’s death” under the Wrongful
Death Act, “Plaintiffs will be precluded from ‘asserting a claim for solatium damages’”—the
“Thus, a party who unsuccessfully opposes an in limine motion to exclude certain evidence can
appeal that ruling without an offer of proof at trial if the district court was fully informed and made a pretrial
ruling with no suggestion that it would reconsider that ruling at trial.” Walden, 126 F.3d at 519.
“Concomitantly, where a district court makes a tentative in limine ruling excluding evidence, the exclusion of
that evidence may only be challenged on appeal if the aggrieved party attempts to offer such evidence at
trial.” Id. (emphasis in original).
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very relief Defendants sought in their motion. (Id. at 4). However, the Court was “not
inclined . . . to preclude Mrs. Barbaros from testifying with respect to her grief as it relates to
the loss of decedent’s services, society and comfort . . . because Pennsylvania’s Wrongful
Death Act provides that losses of society and comfort are compensable and encompassed
within the term ‘services.’ These damages are independent of any solatium damages for
her grief and bereavement.” (Id.). Notably, the Defendants did not object to Mrs. Barbaros’
or Mumtaz’s testimony at trial on these grounds. Accordingly the Court did not err in
granting in part and denying in part Defendants’ motion and the Defendants are not entitled
to a new trial on these grounds.
Second, the Court did not err in permitting the introduction of a limited number of
autopsy photographs. In denying the Defendants’ motion to preclude the autopsy
photographs, the Court, after reviewing the photographs in question, found the photographs
to be “relevant to the manner of Mr. Barbaros’ death, as well as the pain and suffering
Plaintiffs allege he endured.”89 (Doc. 269, at 2). The Court further found that the
photographs in question “were relied on by multiple expert witnesses in forming their
opinions that they intend to present to the jury.” (Id.). Specifically, the photographs Plaintiffs
sought to introduce consisted of a photograph of the object Mr. Barbaros used to commit
suicide next to a photo of what appeared to be his trachea, among other things. As the
The Court denied the motion, but reserved “ruling on whether introduction of all of the photographs
(many of which are graphically similar) should be excluded to the extent that they are so cumulative that
their probative value is diminished by their repetitive representations.” (Doc. 270, at 1-2). Defendants did
not object at trial to the introduction of any photographs on this basis or any other basis.
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Court previously stated when declining to exclude the photographs under Federal Rule of
Evidence 403, the “photographs in question are not so gruesome, shocking or inflammatory
as to warrant exclusion under Federal Rule of Evidence 403.” (Id.). Moreover, the
Defendants make no attempt to argue unfair prejudice and, as such, they are not entitled to
a new trial on this basis.
Finally, the PrimeCare Defendants claim the Court erred in denying their motion “to
preclude testimony as it relates to any criticisms, conclusions, or opinions as to the
sufficiency and adequacy of William Buffton’s treatment of the decedent Mumun Barbaros.”
(Doc. 216). The Court denied the PrimeCare Defendants’ motion, (Doc. 292, at 2),
concluding that merely because Mr. Buffton was dismissed as a defendant in this case
based on improper service, it did not follow that there could be no criticism of his acts and
omissions, especially where, as here, PrimeCare could still be held vicariously liable for his
conduct. The PrimeCare Defendants are therefore not entitled to a new trial.
3.
Weight of the Evidence
Finally, the PrimeCare Defendants seek a new trial on the theory that the jury’s verdict
was against the weight of the evidence. The entirety of the PrimeCare Defendants’
argument, which contains no citations to case law or to the record, is as follows:
The jury’s verdict was against the weight of the evidence as articulated in
Section A of this Brief. The arguments asserted in Section A are incorporated
by reference. Therefore, if this Court does not enter judgment as a matter of
law, the Court should order a new trial, because the jury’s verdict was against
the weight of the evidence.
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(Doc. 377, at 43).
The arguments asserted in Section A of Defendants’ brief address why the PrimeCare
Defendants are entitled to judgment as a matter of law on Plaintiffs’ deliberate indifference
claim. The Court has already found that the PrimeCare Defendants are entitled to judgment
as a matter of law on Plaintiffs’ deliberate indifference claim and we therefore need not
address this issue with respect to deliberate indifference any further here.
The PrimeCare Defendants’ post-trial motion and brief do not advance any argument
that the jury’s negligence finding was against the weight of the evidence, thus requiring a
new trial. Their failure to brief this issue leads the Court to conclude that the PrimeCare
Defendants have abandoned this argument. Lincow, 715 F. Supp. 2d at 629 (“Defendants
have failed to fully brief certain arguments that were tersely addressed in their motion, those
arguments will be deemed abandoned.”), aff’d, 444 F. App’x 617. However, solely for
purposes of a developing a full and complete record, the Court will address whether the
PrimeCare Defendants are entitled to a new trial on the basis that the jury’s negligence
verdict was against the weight of the evidence.
“Unlike a sufficiency of the evidence claim, when a court evaluates a challenge to the
weight of the evidence, it does not view the evidence in the light most favorable to the
verdict winner, but instead exercises its own judgment in assessing the evidence.” Marra,
497 F.3d at 309 n.18 (citing Greenleaf, 174 F.3d at 365; 11 Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice & Procedure § 2806 (2d ed. 1995)). “[N]ew trials
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because the verdict is against the weight of the evidence are proper only when the record
shows that the jury’s verdict resulted in a miscarriage of justice or where the verdict, on the
record, cries out to be overturned or shocks our conscience.” Williamson, 926 F.2d at 1353.
The party seeking a new trial must meet a high threshold in order to obtain this
“extraordinary relief.” Marra, 497 F.3d at 409 n.18.
a. The Individual PrimeCare Defendants
Under Pennsylvania law, “[f]or a party to prevail in a negligence action, ordinary or
professional, the elements are identical: the plaintiff must establish [1] the defendant owed a
duty of care to the plaintiff, [2] that duty was breached, [3] the breach resulted in the
plaintiff’s injury, and [4] the plaintiff suffered an actual loss or damages.” Merlini ex rel.
Merlini v. Gallitzin Water Auth., 602 Pa. 346, 354, 980 A.2d 346 (2009) (citations omitted).
A medical negligence claim is further defined as an “unwarranted departure from generally
accepted standards of medical practice resulting in injury to a patient, including all liabilityproducing conduct arising from the rendition of professional medical services.” Id. (internal
citation and quotation marks omitted).
“It is the plaintiff’s burden to prove that the harm suffered was due to the conduct of the
defendant.” Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280 (1978). “Whether in a
particular case that standard has been met with respect to the element of causation is
normally a question of fact for the jury; the question is to be removed from the jury’s
consideration only where it is clear that reasonable minds could not differ on the issue.” Id.
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at 266 (citations omitted). “Once a plaintiff has introduced evidence that a defendant’s
negligent act or omission increased the risk of harm to a person in the plaintiff’s position,
and that the harm was in fact sustained, it becomes a question for the jury as to whether or
not that increased risk was a substantial factor in producing the harm.”90 Id. at 269. “[I]t is
not necessary that the plaintiff introduce medical evidence in addition to that already
adduced to prove conduct increased the risk of harm to establish that the negligence
asserted resulted in a plaintiff’s injury.” Id. at 273. “Rather, once the jury is apprised of the
likelihood that defendant’s conduct resulted in plaintiff’s harm,” it is up to the jury to
“balanc[e] probabilities.” Id.; see also Gradel v. Inoyue, 491 Pa. 534, 542, 421 A.2d 674
(1980) (recognizing that Hamil “relaxes the degree of certainty ordinarily required of a
plaintiff’s evidence to provide a basis upon which the jury may find causation”).
Pennsylvania law does not require expert witnesses to use “the magic words,” such as
“increased risk of harm” as long as the expert’s testimony, taken as a whole, satisfies the
standard. Mitzelfelt, 526 Pa. at 66; accord Redland Soccer Club, Inc. v. Dept. of Army of
United States, 55 F.3d 827, 852 (3d Cir.1995) (“Pennsylvania case law on causation does
The Pennsylvania Supreme Court has repeatedly reaffirmed Hamil’s holding. See, e.g., Mitzelfelt,
526 Pa. at 64 (plaintiffs presented sufficient evidence that the acts of the defendants increased the risk of
harm to plaintiffs and, as a result, “there were sufficient facts from which the jury could have determined
that it did”); Gradel, 491 Pa. at 542 (“Accordingly, medical opinion need only demonstrate, with a
reasonable degree of medical certainty, that a defendant’s conduct increased the risk that the harm
sustained by plaintiff would occur. The jury, not the medical expert, then has the duty to balance
probabilities and decide whether defendant’s negligence was a substantial factor in bringing about the
harm.”). Courts have applied Hamil’s causation standard in negligence claims pursued against prison
healthcare providers. See, e.g., Navedo v. PrimeCare Med., Inc., No. 1:12-cv-00888, 2013 WL 6451159
(M.D. Pa. Dec. 9, 2013) (applying Hamil to medical negligence case against prison medical provider based
on detainee suicide).
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not require that expert testimony include any ‘magic words’ such as ‘caused by,’ rather than
‘related to.’”); Vogelsberger v. Magee-Womens Hosp. of UMPC Health Sys., 903 A.2d 540,
545, 2006 PA Super 146 (Pa. Super. 2006) (noting that an expert “need not use the magic
words or phrases such as increased risk of harm; rather, we examine the testimony as a
whole, and the substance of the testimony, to determine if it meets this standard”) (internal
citation and quotation marks omitted). “To the extent that ‘magic words’ have any
significance in the Pennsylvania cases, they seem merely to reflect Pennsylvania’s sensible
requirement that the expert speak ‘with a reasonable degree of medical certainty.’”91
Redland Soccer Club, 55 F.3d at 852 (quoting Gradel, 491 Pa. at 538).
The Court will first address whether the jury’s verdict against any of the individual
PrimeCare Defendants was against the weight of the evidence. There was ample testimony
that Paul James’ acts and omissions breached the duty of care, increased the risk of harm
to Mr. Barbaros, and contributed to his suicide. Sept. 8, 2016 Trial Tr. at 227:6-230:12;
258:4-10; 266:24-268:2. Nurse Wild and Dr. Breggin presented testimony, to a reasonable
degree of medical and nursing certainty, that Paul James’ acts and omissions increased the
In considering whether there was sufficient evidence for a reasonable jury to find causation, a Court
must consider whether the expert was able to testify “to a reasonable degree of medical certainty that the
acts or omissions complained of could cause the type of harm that the [plaintiff] suffered.” Mitzelfelt, 526
Pa. at 67. If so, the next step requires a determination of “whether the acts complained of caused the
actual harm suffered by” the plaintiff. Id. At the second step, there is a “relaxed standard” and it is
sufficient that an expert testifies that he or she believed “to a reasonable degree of medical certainty that it
could have caused the harm.” Id. (emphasis added).
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risk of harm to Mr. Barbaros and contributed to his suicide92. Id. at 219:21-223:13; 229:22230:12; 253:7-12; Sept. 9, 2016 Trial Tr. at 233:21-234:3; 268:25-273:3; 277:14-19. For
example, Nurse Wild opined that Nurse James’ acts and omissions, including his failure to
obtain information about the last time Mr. Barbaros took his medications, placed him “at
risk.” Sept. 8, 2016 Trial Tr. at 228:11-229:7. She also testified that Nurse James’
completion of Mr. Barbaros’ intake form was the first event in a series of negligent events
and stated that “one of my opinions was that the information collected during the receiving
screening by Nurse James was not sufficient or it was not complete, which led to, I think,
some confusion further on, primarily, when he didn’t follow through and answer the
questions about when was the last time Mr. Barbaros took his medications, that was left
incomplete.” Id. at 227:19-25. Nurse James’ acts and omissions “just set the stage, if you
will,” for the care Mr. Barbaros received throughout his stay at the MCCF. Id. at 229:22230:1. Dr. Breggin’s testimony further supports the jury’s verdict. Dr. Breggin testified that
the first time Mr. Barbaros’ suicide could have been prevented was during his first and only
interaction with Nurse James, highlighting the importance of Nurse James’ failure to obtain
Contrary to the PrimeCare Defendants assertions at trial, Nurse Wild was not precluded from
presenting causation testimony. Rather, the Court sustained objections when counsel for the Plaintiffs
asked whether it was her opinion that the PrimeCare Defendants’ acts and omissions were the “factual
cause” of Mr. Barbaros’ suicide. She was not prohibited from testifying that the acts and omissions
increased the risk of harm to Mr. Barbaros, and testified as such.
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any information about the last time Mr. Barbaros took his medications.93 Sept. 9, 2016 Trial
Tr. at 268:25-269:23-277:19.
Testimony from PrimeCare’s correctional nursing expert, Terry Fillman, also supports
the jury’s verdict against Nurse James. Nurse Fillman acknowledged that PrimeCare’s
policies and procedures at the MCCF set the minimally acceptable standard of care in a
correctional environment. Id. at 288:4-9. He conceded that by not completing the medical
chart Nurse James violated PrimeCare’s policies and procedures. He also testified that if a
patient is taking psychiatric medications it is important to know the last they time took it and
the reasons why. Id. at 289:20-292:1. When commenting on Nurse Rowe’s assessment of
Mr. Barbaros without the benefit of his medical chart, he acknowledged her conduct violated
policies and procedures. In doing so, Nurse Fillman testified that it is the responsibility of
the night nurse (i.e., Paul James) to collect and pass on this information in order to ensure
the nursing staff has all the information available to review before providing an assessment.
Id. at 297:15-299:6. He testified that if Nurse Rowe’s statement that it was “very common”
to perform assessments without the benefit of a patient’s medical chart was true, the person
to blame was “whoever is gathering these medical records and not providing the chart[;]
they’re violating policies and procedures.” Id. at 299:23-301:12. It was his opinion that it
was a “combination” of Mr. Barbaros’ failure to give accurate and complete information to
In fact, nearly every fact and expert witness testified to the critical importance of obtaining
information about the last time an inmate on psychiatric medications like Mr. Barbaros last took their
medication, including Nurse James himself.
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Nurse James, as well as any information about the dosage, which led to a delay in Mr.
Barbaros obtaining his medications.94 Id. at 304:19-305:25.
Further, the PrimeCare Defendants incorrectly claim there was no evidence that Nurse
James breached the standard of care or increased the risk of harm to Mr. Barbaros. Despite
the PrimeCare Defendants’ assertions that Nurse Wild conceded on cross-examination that
Nurse James’ acts and omissions did not cause a delay in treatment of Mr. Barbaros, Sept.
8, 2016 Trial Tr. at 261:15-263:3, it does not necessarily lead to the conclusions that, as
such, no reasonable jury could find Paul James liable in negligence and that the great
weight of the evidence was against the jury’s verdict.95 There was credible testimony from
Nurse Wild that Paul James’ failure to completely and accurately fill out the intake form, in
violation of PrimeCare’s policies and procedures, breached the standard of care. Nurse
Fillman’s testimony also suggested as much. Nurse Wild and Dr. Breggin also testified that
Nurse James’ acts and omissions increased the risk of harm to Mr. Barbaros and
contributed to his suicide. See Vogelsberger, 903 A.2d at 564 (expert testimony was
sufficient to find causation and noting the expert “also opined that the nursing care was not
properly coordinated, documentation and charting was incomplete or misleading, and
When asked if he was aware that Nurse James testified that he never asked for dosage information
because PrimeCare’s intake form at the MCCF does not ask for it, Nurse Fillman stated “no.” Sept. 9, 2016
Trial Tr. at 305:22-306:1.
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Nurse Wild conceded on cross-examination that Nurse James’ misspelling of Mr. Barbaros’ name
and listing his medication as Prozac, instead of Paxil, did not contribute to the delay in Mr. Barbaros
receiving his medications. Nurse James obtained the correct name of Mr. Barbaros’ pharmacy, prescribing
physician, date of birth and social security number. While Nurse Bauer could not verify Mr. Barbaros’
medications using this information, Nurse Ramos did so.
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nurses failed to properly monitor” the plaintiff). The testimony presented at trial established
that knowing when a patient last took a psychiatric medication is extremely important and
the failure to obtain this information puts a patient at an increased risk of harm. The Court’s
review of the record does not lead it to believe that the jury’s negligence verdict against
Nurse James was so against the weight of the evidence that a miscarriage of justice would
result should the verdict stand. Nor does the verdict shock the Court’s conscience.
Accordingly, Nurse James’ motion for a new trial will be denied.
The Court next considers the evidence presented against the other individual PrimeCare
Defendants. Both Nurse Wild and Dr. Breggin, among others, testified that the acts and
omissions of Nurse Rowe, Wendy Johnson, Nurse Ramos, and Nurse Bauer, breached the
standard of care. There was also testimony that these acts and omissions increased the
risk of harm and contributed to Mr. Barbaros’ suicide. Sept. 8, 2016 Trial Tr. at 230:13247:17; Sept. 9, 2016 Trial Tr. at 233:21-234:4; 271:17-277:19.
Plaintiffs’ experts testified that at the time Nurse Rowe assessed Mr. Barbaros he was
exhibiting signs of withdrawal. Had Nurse Rowe not breached the standard of care by
neglecting to review Mr. Barbaros’ medical chart prior to performing the assessment, she
would have realized that Mr. Barbaros’ medications had not been verified and he had
therefore been without his medications for a number of days and she could have recognized
he was suffering from withdrawal. At a minimum, had Nurse Rowe reviewed the medical
chart, she would have had an obligation to raise the failure to verify Mr. Barbaros’
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medications with a medical provider who, in turn, could have placed Mr. Barbaros on
monitoring. Her conduct not only breached the standard of care but placed Mr. Barbaros at
an increased risk of harm.
There was also testimony that Wendy Johnson’s acts and omissions breached the
standard of care, increased the risk of harm to Mr. Barbaros, and contributed to his suicide.
Had Wendy Johnson reviewed Mr. Barbaros’ medical chart, as she testified she did, she
would have realized that he had been without his medications for days and was exhibiting
symptoms of withdrawal. She could have placed him on monitoring and raised these issues
with a medical provider. At the very least, Wendy Johnson had an obligation to pass this
information along to Nurse Ramos and/or speak to Mr. Barbaros to gather more facts;
especially considering that he went to such lengths to complain to a Judge that he was not
receiving his medications.
Plaintiffs also presented testimony that Nurse Ramos’ acts and omissions breached the
standard of care, increased the risk of harm to Mr. Barbaros, and contributed to his suicide.
Nurse Ramos neither reviewed Mr. Barbaros’ medical chart nor informed Dr. Thomas about
Mr. Barbaros’ physical symptoms or the length time that he had been off his medications.
Had she done so, appropriate action to place Mr. Barbaros on monitoring could have been
taken.96
The PrimeCare Defendants’ correctional nursing expert, Terry Fillman, testified that he was not
opining on the acts and omissions of Wendy Johnson and Grace Ramos, nor was he disputing Nurse
Wild’s opinions that their acts and omissions breached the standard of care and increased the risk of harm
to Mr. Barbaros. Sept. 12, 2016 Trial Tr. at 282:8-284:14.
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Finally, Plaintiffs presented testimony that Nurse Bauer’s acts and omissions breached
the standard of care, placed Mr. Barbaros at an increased the risk of harm, and contributed
to his suicide. Specifically, Nurse Bauer made little effort to verify Mr. Barbaros’
medications and failed to engage in any appropriate follow up (other than placing him on a
list to see a mental health professional, whom he was able to see three days later). Nurse
Wild testified that after Nurse Bauer could not verify the medications, she had an obligation
to either call a medical provider or reach out to Mr. Barbaros to obtain additional
information. Todd Haskins, PrimeCare’s VP of Operations, also testified that Nurse Bauer’s
actions were insufficient and violated PrimeCare’s policies and procedures.97 When asked
if Nurse Bauer’s acts and omissions placed Mr. Barbaros at risk of harm, Nurse Wild
testified “[v]ery much so.” Sept. 8, 2016 Trial Tr. at 231:7-232:1. In addition, Dr. Breggin
testified that if Mr. Barbaros promptly received his medications on March 18 – the same day
he came into the MCCF and Nurse Bauer attempted to verify his medications – it could
have prevented and, at a minimum, would have softened his withdrawal.
In sum, Plaintiffs presented testimony, to a reasonable degree of medical and nursing
certainty, that Nurse James, Nurse Rowe, Wendy Johnson, Nurse Bauer, and Nurse
Ramos’ acts and omissions breached the standard of care, placed Mr. Barbaros at an
Nurse Wild also testified that, after failing to verify his medications, Nurse Bauer had an obligation to
research any potential side effects or issues regarding Mr. Barbaros’ medications or raise this with a
medical provider. Sept. 8, 2016 Trial Tr. at 231:15-232:1.
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increased risk of harm, and contributed to his suicide.98 “Once there is sufficient testimony
to establish that (1) the [defendant] failed to exercise reasonable care, that (2) such failure
increased the risk of physical harm to the plaintiff, and (3) such harm did in fact occur, then
it is a question properly left to the jury to decide whether the acts or omission were the
proximate cause of the injury.” Mitzelfelt, 526 Pa. at 68; see also Vogelsberger, 903 A.2d at
563-65 (“If the expert can opine to a reasonable degree of certainty that the acts or
omissions could have caused the harm, then it becomes a question for the jury with regard
to whether they believe it caused the harm.”) (emphasis in original). Although Defendants
presented some evidence to the contrary, the jury was free to weigh the evidence and
accept or reject Defendants’ experts’ testimony. Unlike Plaintiffs’ experts, both Nurse
Fillman and Dr. Mendel previously testified on behalf of PrimeCare. Dr. Mendel previously
testified for PrimeCare “probably” more than 10 times, “possibly more” than 20 times, but
“probably not” more than 30. Sept. 13, 2016 Trial Tr. at 35:25-40:25. Nurse Fillman and Dr.
Mendel’s testimony at trial was also not consistent with their deposition testimony. Id. at
105:12-107:19.
Nurse Fillman and Dr. Mendel both acknowledged that many of the acts and omissions
of the individual PrimeCare Defendants were inappropriate and failed to comply with
applicable policies and procedures. Nurse Fillman conceded that the nursing staff’s failure
Moreover, a reasonable jury could infer that had Mr. Barbaros been placed on monitoring “he would
not have had the opportunity to commit suicide.” Francis ex rel. Estate of Francis v. Northumberland Cnty.,
636 F. Supp. 2d 368, 391 (M.D. Pa. 2009).
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to follow medical orders and take Mr. Barbaros’ blood pressure was “not acceptable”
because it is incumbent on the nursing staff to follow medical orders in order to protect the
patient and ensure he or she receives the care they need. Sept. 12, 2016 Trial Tr. at 306:2307:23. He also acknowledged that if a medication like Trazodone is prescribed to a
patient, but not given, it is not acceptable nursing care. Id at 308:3-13. Nurse Fillman
testified that it is incumbent upon a nurse to make sure he or she is familiar with, and able to
provide, all relevant information to a physician when obtaining orders for a prescription and
to be as complete as possible. Id. at 312:5-24. He also conceded that failure to follow
policies and procedures places a patient at an increased risk of harm.
Dr. Mendel acknowledged that if a nurse cannot verify a psychiatric medication by 5:00
p.m. on the day after the patient enters a facility, he/she should call the on-call provider,
which did not happen here. Sept. 13, 2016 Trial Tr. at 82:23-83:5. He also acknowledged
that if medical orders are given, they should be followed, and that he could consider this in
determining whether there is a breach of the standard of care. Id. at 84:6-88:18.
PrimeCare’s correctional psychiatry expert, Dr. Cheryl Wills, agreed that as part of an
initial assessment it is important to find out when the patient last took their medication. She
testified that the nursing staff had an obligation to investigate when Mr. Barbaros last took
his medication. Sept. 14, 2016 Trial Tr. at 37:23-39:22. Dr. Wills acknowledged that
withdrawal is a potential side effect for persons who abruptly stop taking SSRIs like Paxil,
and conceded that suicidal thoughts have been associated with individuals who abruptly
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stopped taking SSRIs like Paxil, and that this was something of which the medical staff
should be aware. Id. at 40:13-42:19. When asked if Mr. Barbaros’ headache, hypertension,
increased pulse, stomach problems, increased anxiety, and depression could be signs that
he was suffering from withdrawal, Dr. Wills testified “That’s one possibility, yes.” Id. at 43:511. She also testified that the nursing staff’s failure to check Mr. Barbaros’ blood pressure
was unfortunate and “pretty bad” because they were unable to assess his medical status.
Id. at 43:12-45:11.
This testimony, among others, provided the jury with a sufficient and reasonable basis to
find that Nurse James, Nurse Bauer, Nurse Ramos, Nurse Rowe, and Wendy Johnson
breached the standard of care, that their acts and omissions increased the risk of harm to
Mr. Barbaros, and that Mr. Barbaros committed suicide as a result of that harm. It was for
the jury to determine “whether or not that increased risk was a substantial factor in
producing the harm.” Hamil, 481 Pa. at 269. The Court’s review of the record leads it to
conclude that the jury’s negligence verdict, finding each of the individual PrimeCare
Defendants liable, was not so against the weight of the evidence that a miscarriage of
justice would result should the verdict stand. Nor does the verdict shock the Court’s
conscience. The individual PrimeCare Defendants’ motion for a new trial on the basis that
the jury’s verdict was against the weight of the evidence will thus be denied.
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b. William Buffton
A review of the record also leads the Court to conclude that the jury’s negligence verdict
finding William Buffton liable was not against the weight of the evidence. There was ample
evidence from which the jury could reasonably conclude that Mr. Buffton breached the
standard of care. Sept. 9, 2016 Trial Tr. at 228:18-23; 246:3-250:6; 277:7-13. Mr. Buffton
was the first and only mental health provider who met with Mr. Barbaros during his time at
the MCCF. He testified that he was performing psychological services to inmates at the
MCCF without appropriate supervision. He did not conduct a suicide assessment or ask Mr.
Barbaros about his physical symptoms. His notes and recollection of the meeting portray
Mr. Barbaros as “very, very fearful” and like a “cornered rat,” among other things. Mr.
Buffton conceded that Mr. Barbaros’ conduct suggested he could be suicidal, but he
testified that Mr. Barbaros’ actions could also be normal behavior for a person from Eastern
Europe whose first language is not English. Despite having authority to place an inmate on
suicide watch or monitoring, he did not do so, and he received no training from PrimeCare
on suicide prevention or its policies and procedures for monitoring or suicide watch.
Furthermore, Mr. Buffton testified at his deposition, which was read to the jury, that he was
not sure if he would admit under oath if he made a mistake in his care and treatment of Mr.
Barbaros, Sept. 9, 2016 Trial Tr. at 84:11-85:12, which impacted his credibility at trial.
Dr. Breggin’s testimony, among others, also established a reasonable basis for the jury
to conclude that Mr. Buffton’s acts and omissions increased the risk of harm to Mr. Barbaros
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and caused his suicide. Id. at 228:9-234:4; 260:24-266:4; 271:23- 277:19; Sept. 12, 2016
Trial Tr. at 145:23-153:14. PrimeCare’s own correctional psychiatry expert supported Dr.
Breggin’s opinions in many respects. Dr. Wills conceded that Mr. Buffton forgot to
document that he conducted a suicide assessment and did not ask Mr. Barbaros whether
he was experiencing any physical symptoms since arriving at the MCCF. Sept. 14, 2016
Trial Tr. at 45:3-46:3. When asked whether it would be important for a person conducting a
mental health evaluation on a first time detainee to know if the patient is experiencing any
aggravating factors, like physical symptoms, she testified “it would be helpful to know,
yes.”99 Id. at 48:14-23. Dr. Wills testified that her opinion that PrimeCare’s and Mr.
Buffton’s acts and omissions did not cause Mr. Barbaros’ suicide, was only “more likely than
not” and “roughly 51%.” Id. at 59:23-60:4. In her expert report, part of which was read to
the jury, she stated that “Dr. Breggin’s past work on side effects to Selective Serotonin
Reuptake Inhibitor SSRI medications, which are used to treat depression and anxiety, and
Dr. Wills acknowledged, as did Mr. Buffton, that if Mr. Buffton had asked Mr. Barbaros about physical
symptoms, he should have written it in his note. Sept. 14, 2016 Trial Tr. at 46:3-20. When asked whether,
logically, that meant that Mr. Buffton failed to conduct a suicide assessment of Mr. Barbaros because it was
not documented, Dr. Wills could not say. Id. at 47:19-48:3. She did say, however, that “a suicide
assessment is a requirement for a social worker, but physical symptoms is not . . . so if he went above and
beyond, that’s great, but that is not what he’s required to do.” Id. at 48:4-13. She conceded that, as a
psychologist, he would know that physical symptoms can impact a person’s mental state. Id. at 48:14-16.
Although Dr. Wills repeatedly referred to Mr. Buffton as a social worker, she conceded that at the MCCF he
was acting as a psychologist and, as such, NCCHC standards required him to be supervised. Id. at 49:1025. She also conceded that the woman supervising Mr. Buffton was not a psychologist, but a social
worker. Id. at 50:12-16. Dr. Wills acknowledged that PrimeCare did not provide Mr. Buffton with any
training, including training on suicide prevention. She was not sure, however, “that is required.” Id. at
55:18-22.
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what pharmaceutical companies have disclosed has had important implications for the
medical field.” Id. at 60:20-61:8.
For the foregoing reasons, the jury’s negligence verdict finding William Buffton liable was
reasonably supported by the evidence. The Court’s weighing of the evidence does not
suggest otherwise. The verdict does not shock the Court’s conscience and in no way
constitutes a miscarriage of justice.
c. PrimeCare Medical, Inc.
Finally, the Court considers whether the weight of the evidence supports the jury verdict
finding PrimeCare negligent. A review of the record demonstrates that there was ample
evidence for a reasonable jury to find PrimeCare directly and vicariously liable in
negligence.
To prove negligence, a plaintiff may proceed against a defendant on theories
of direct and vicarious liability, asserted either concomitantly or alternatively.
Liability for negligent injury is direct where the plaintiff seeks to hold the
defendant responsible for harm the defendant caused by the breach of a duty
owing directly to the plaintiff. By comparison, vicarious liability is a policybased allocation of risk. Vicarious liability, sometimes referred to as imputed
negligence, means in its simplest form that, by reason of some relation
existing between A and B, the negligence of A is to be charged against B
although B has played no part in it, has done nothing whatever to aid or
encourage it, or indeed has done all that he possibly can to prevent it.
Scampone v. Highland Park Care Cent., LLC, 618 Pa. 363, 388-89, 57 A.3d 582 (2012)
(internal citation and quotation marks omitted). “The direct and vicarious theories of liability
are grounded in distinct policies and serve complementary purposes in the law of torts, with
the goal of fully compensating a victim of negligence in an appropriate case.” Id. at 390.
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i. Respondeat Superior
The jury was instructed, without any objection and consistent with Pennsylvania law, that
because all of the individual PrimeCare Defendants were employees acting within the scope
of their employment, if the jury found any of those defendants liable in negligence, then
PrimeCare was also vicariously liable. “Once the requisite relationship (i.e., employment,
agency) is demonstrated,” id. at 389, the employer may properly be held liable for its
employee’s negligence.
As discussed, there was sufficient evidence for a reasonable jury to find Paul James,
Patricia Bauer, Christina Rowe, Grace Ramos, and Wendy Johnson liable in negligence.
The weight of the evidence does not suggest otherwise. Because there was evidence that
each of the individual PrimeCare Defendants were negligent and were employees of
PrimeCare acting within the scope of their duties, the jury could reasonably find PrimeCare
vicarious liability for their negligence.
ii. Liability for Negligence of Independent Contractors
There was also ample evidence from which the jury could find PrimeCare liable based
on the acts and omissions of William Buffton. Mr. Buffton was an employee of an
independent contractor providing mental services to inmates at the MCCF on behalf of
PrimeCare. The jury instructions, based on the standard Pennsylvania instructions
addressing a healthcare provider’s liability for the negligence of its independent contractors,
permitted the jury to hold PrimeCare liable for Mr. Buffton’s negligence if the Plaintiffs
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proved one of the following: (1) a reasonably prudent person in Mr. Barbaros’ position would
be justified in believing that the care in question was provided by PrimeCare or its agents; or
(2) the care in question was advertised or otherwise represented to the patient as being
provided by PrimeCare.100 Put another way, PrimeCare could be liable for the negligence of
Mr. Buffton “where (1) the patient looked to the institution, rather than the individual
physician, for care, or (2) the hospital held out the physician as its employee.” Green v.
Pennsylvania Hosp., 633 Pa. 18, 29, 123 A.3d 310 (2015); accord Capan v. Divine
Providence Hosp., 287 Pa. Super. 364, 368, 430 A.2d 647 (1980) (citing Restatement
(Second) of Torts § 429 (1965)).
This theory of liability, known as the doctrine of ostensible agency, has been codified by
the Pennsylvania legislature in section 1303.516 of the MCARE Act. The statute provides,
in relevant part:
(a) Vicarious Liability – A hospital may be held vicariously liable for the acts of
another health care provider through principles of ostensible agency only
if the evidence shows that:
(1) a reasonably prudent person in the patient’s position would be
justified in believing that the care in question was being rendered by
the hospital or its agents; or
(2) the care in question was advertised or otherwise represented to the
patient as care being rendered by the hospital or its agents.
40 P.S. § 1303.516(a). The Pennsylvania Supreme Court has recognized that the statute is
“substantially the same as the requirement for establishing ostensible agency under Section
100
No party objected to the jury instructions in this respect.
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429 of the Restatement (Second) of Torts.” Green, 633 Pa. at 38 (citing 40 P.S. §
1303.516(a)). Applying the standards as set forth in either 40 P.S. § 1303.516(a)(1) or (2),
there was sufficient evidence from which the jury could find PrimeCare liable and the weight
of the evidence supports the jury’s verdict.
First, there was sufficient evidence from which the jury reasonably could conclude that a
reasonably prudent person in Mr. Barbaros’ position would be justified in believing that Mr.
Buffton’s mental health services were being provided by PrimeCare or its agents. See
Capan, 287 Pa. Super. at 370 (jury could reasonably conclude that hospital was liable for
negligence of independent contractor where plaintiff “entered the hospital through the
emergency room,” was treated by an independent contractor “in his capacity as house
physician, not as [plaintiff’s] personal physician [and t]hus, the jury could have concluded
that [plaintiff] relied upon the hospital rather than [the independent contractor] himself for
treatment”). Several forms in PrimeCare’s intake packet inform detainees that “PrimeCare
Medical, Inc. provides the medical care for this facility.” Sept. 7, 2016 Trial Tr. at
32:20:33:18. Mr. Barbaros was not only provided with these forms, but signed them,
acknowledging that he understood that medical services were available and being provided
by PrimeCare. Id. at 69:2-10. As in Capan, a reasonable jury could have concluded that
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Mr. Barbaros “looked to” and relied on PrimeCare, rather than Mr. Buffton, to provide
treatment.101
Second, a jury could reasonably conclude that PrimeCare advertised or represented the
care being provided by Mr. Buffton as its own. In addition to the language contained on the
intake forms informing Mr. Barbaros that all of the medical care at the MCCF was provided
by PrimeCare, Todd Haskins, PrimeCare’s Vice President of Operations, acknowledged that
PrimeCare’s current website, which would been the same or similar as in 2009, represents
that PrimeCare’s “Psychiatrists, Psychologists, and mental health professionals specialize in
acute psychiatric inpatient care, crisis management, and suicide prevention programs in
collaboration with local justice systems.” Sept. 8, 2016 Trial Tr. at 94:13-96:20. This
evidence was sufficient to impose liability under § 1303.516(a)(2). See Capan, 287 Pa.
Super. at 370) (“Additionally, the jury could have found that [principal] held out [independent
contractor] as its employee by providing his services for dealing with emergencies within the
hospital,” and the hospital “does not contend that it informed [plaintiff] of Dr. Pollice’s
independent contractor status nor does it cite any reason why [plaintiff] should have been
on notice of that status.”); see also Parker, 803 A.2d at 749 (reasonable person in plaintiff’s
position who was not informed by principal of provider’s independent contractor status could
“[I]t would be absurd to require” Mr. Barbaros, a pretrial detainee at the MCCF whose access to
medical and mental health treatment was exclusively controlled by PrimeCare, “to inquire of each person
who treated him whether he is an employee of” PrimeCare or an independent contractor. Capan, 287 Pa.
Super at 368; accord Parker v. Freilich, 803 A.2d 738, 748, 2002 PA Super 188 (Pa. Super. 2002)
(recognizing that “it would be absurd to require such a patient to be familiar with the law of respondeat
superior and so to inquire of each person who treated him whether he is an employee . . . or an
independent contractor”) (internal citation and quotation marks omitted).
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reasonably believe independent contractor was an employee). The weight of the evidence
no doubt strongly supports PrimeCare’s liability for Mr. Buffton’s negligence.
The same holds true with respect to PrimeCare’s liability for the negligence of Dr.
Thomas. Dr. Thomas was an independent contractor who PrimeCare contracted with to
provide psychiatric services to inmates at the MCCF. Although the Court has yet to address
whether the weight of the evidence supported the jury’s negligence verdict against Dr.
Thomas, as discussed infra, there was ample evidence that Dr. Thomas’ acts and
omissions breached the duty of care, increased the risk of harm to Mr. Barbaros, and
contributed to his suicide. PrimeCare may therefore be held liable for Dr. Thomas’ acts and
omissions if: (1) a reasonably prudent person in Mr. Barbaros’ position would be justified in
believing that the care in question was provided by PrimeCare or its agents; or (2) the care
in question was advertised or otherwise represented to the patient as being provided by
PrimeCare.
Although Mr. Barbaros did not have any personal interactions with Dr. Thomas, the jury
could reasonably conclude that a reasonably prudent person in Mr. Barbaros’ position would
be justified in believing that his prescription medications were being provided by PrimeCare
and/or its agents. See Thomson v. Nason Hosp., 370 Pa. Super. 115, 119, 535 A.2d 1177
(1988) (reversing trial court’s failure to instruct jury in accordance with Restatement
(Second) of Torts § 429 which “provided an exception to the general rule that an employer
is not liable for torts committed by an independent contractor in his employ”), aff’d 527 Pa.
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330, 591 A.2d 703 (1991). In Thompson, the Superior Court concluded that the trial court
erred in removing the question of ostensible agency from the jury’s consideration where,
among other things: (1) the independent contractor treated the patient in the hospital
emergency room and subsequently arranged for her admission; and (2) “arranged for
diagnostic tests and consultations during her hospitalization.” Id. at 120. The only way Mr.
Barbaros could obtain his medications was through acts of PrimeCare employees. When
Mr. Barbaros’ medications were first identified at intake, and then again when he
complained to the Judge about not receiving his medications, he “sought attention from”
PrimeCare and “not directly from” Dr. Thomas. Id. His actions therefore “raised an
inference that” he “looked to the institution for” care, and not to Dr. Thomas. Id. A
reasonable jury could therefore conclude that a reasonably prudent person in Mr. Barbaros’
position would be justified in believing that his prescription medications and related “care”
were provided by PrimeCare or its agents.
There was also evidence from which the jury could reasonably conclude that PrimeCare
held Dr. Thomas out as its employee. In addition to language contained on PrimeCare’s
intake forms discussed above, PrimeCare’s website represents that its medical, dental, and
psychiatric professionals are well trained and “oversee all aspects of our correctional health
care contract.” Sept. 8, 2016 Trial Tr. at 94:13-96:20.
Having considered and weighed the evidence, it is clear that the jury’s negligence
verdict was well-supported. It does not shock the Court’s conscience and would certainly
230
not constitute a miscarriage of justice for PrimeCare to be held vicariously liable for the acts
and omissions of the individual PrimeCare Defendants, William Buffton and/or Dr. Thomas.
iii. Corporate Negligence
Finally, the Court considers whether the weight of the evidence supported the jury’s
verdict finding PrimeCare directly liable for its own corporate negligence.102 “Corporate
negligence is a doctrine under which the [healthcare provider] is liable if it fails to uphold the
proper standard of care owed the patient, which is to ensure the patient’s safety and wellbeing.” Thompson v. Nason Hosp., 527 Pa. 330, 339, 591 A.2d 703 (1991). “A cause of
action under corporate liability is based on the breach of non-delegable duties” that a
healthcare provider “owes directly to its patients, and is independent of the negligence of
the [healthcare provider’s] employees or ostensible agents.” Moser v. Heistand, 545 Pa.
554, 560, 681 A.2d 1322 (1996). The Pennsylvania Supreme Court has held that
healthcare providers owe non-delegable duties directly to the patient that include: “(1) a duty
to use reasonable care in the maintenance of safe and adequate facilities and equipment;
(2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons
who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt,
and enforce adequate rules and policies to ensure quality care for patients.” Thompson,
527 Pa. at 339-40 (internal citation and quotation marks omitted).
“To state the obvious, merely because an entity can be held vicariously liable for the negligence of its
employees does not obviate its liability for corporate negligence based upon its failure to formulate, adopt,
and enforce adequate rules and policies to ensure quality care for patients.” Scampone, 11 A.3d at 977.
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In order for the evidence to support the jury’s corporate negligence verdict, Plaintiffs must
have presented sufficient evidence to show PrimeCare: (1) “acted in deviation from the
standard of care”; (2) “had actual or constructive notice of the defects or procedures which
created the harm”; and (3) “that the conduct was a substantial factor in bringing about the
harm.” Brodowski v. Ryave, 885 A.2d 1045, 1057, 2005 PA Super 354 (Pa. Super. 2005)
(internal citation and quotation marks omitted). Unless PrimeCare’s “negligence is obvious, a
plaintiff must produce expert testimony to establish that [PrimeCare] deviated from an
accepted standard of care and that the deviation was a substantial factor in causing the harm
to the plaintiff.” Welsh v. Burger, 548 Pa. 504, 514, 698 A.2d 581 (1997). Pennsylvania law
does not “require experts to use magic words when expressing their opinions.” Id. Instead,
the substance of the expert’s testimony must be considered as a whole.
Considering the first of the three elements necessary to support the jury’s corporate
negligence verdict, the Court first finds there was sufficient credible testimony that
PrimeCare breached its duties under Thompson to: (1) oversee all persons who practice
within its walls as to patient care; and (2) enforce adequate rules and policies to ensure
quality care for patients.103 Nurse Wild’s testimony in particular was sufficient for the jury to
The Pennsylvania Supreme Court has never considered whether a prison healthcare provider like
PrimeCare can be liable for corporate negligence. This Court predicts that the Pennsylvania Supreme
Court would impose such a duty on PrimeCare. The Court finds persuasive Judge Rambo’s opinion in
Finney v. Palakovich, Civ. No. 4:09-1751, 2010 WL 2902731 (M.D. Pa. July 23, 2010). In Finney, MHM
Correctional Services, a prison healthcare provider like PrimeCare, claimed it could not be liable for
corporate negligence because it owed no duty to the decedent. Judge Rambo rejected that argument,
noting “there is no difference between the services provided by a hospital and the services provided by
health care institutions in prisons, except that the prisoner cannot choose which institution provides the
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conclude that PrimeCare breached its duty to oversee its medical staff and failed to enforce
its rules and policies to ensure quality care for patients. Nurse Wild testified, to a
reasonable degree of nursing certainty, that PrimeCare breached its duty of care. She
pointed to, among other things, Nurse Rowe’s testimony that it was “very common” to
assess patients without the benefit of their medical chart and highlighted the nursing staff’s
failure to follow through on medical orders, including failing to take Mr. Barbaros’ blood
pressure and provide him with Trazodone on the evening before he committed suicide. Dr.
Breggin provided additional supporting testimony. This testimony provided a reasonable
basis for the jury to conclude that PrimeCare breached its duties to oversee its medical staff
and to enforce its rules and policies to ensure patient care. See Brodowski, 885 A.2d at
services. As such, to conclude that the same duty of care is not owed to a prisoner as would be owed to
any other patient is illogical.” Id. at *6 (citations omitted). The Court agrees and, consistent with other
federal district courts in this Circuit, predicts that the Pennsylvania Supreme Court would recognize a cause
of action in corporate negligence against a prison healthcare provider like PrimeCare. See, e.g., Boynes v.
Cnty. of Lawrence, Civil Action No. 15-139, 2015 WL 8992556, at *7 (W.D. Pa. Dec. 16, 2015) (rejecting
PrimeCare’s argument that it cannot be liable for corporate negligence); Davis v. Corizon Health, Inc., Civil
Action No. 14-1490, 2015 WL 518263, at *4 (E.D. Pa. Feb. 9, 2015) (“A corporation, like Corizon, which
provides the exclusive and comprehensive medical services to prison inmates may be held liable under a
theory of corporate negligence.”) (citations omitted); Fox v. Horn, No. Civ. A 98-5279, 2000 WL 49374, at
*8 (E.D. Pa. Jan. 21, 2000) (rejecting prison healthcare provider’s argument that it could not be liable for
corporate negligence and noting that prisoner “had no meaningful choice in his health care” and that the
“control over” prisoner’s healthcare warrants imposition of a duty). In addition, consideration of: (1) the
relationship between a prisoner and the prison healthcare provider; (2) the social utility of the prison
healthcare provider’s conduct; (3) the nature of the risk imposed and foreseeability of the harm; (4) the
consequences of imposing a duty upon the prisoner healthcare provider; and (5) the public interest, all lead
the Court to predict that the Pennsylvania Supreme Court would extend the doctrine of corporate
negligence to prison healthcare providers like PrimeCare. Sokolsky v. Eidelman, 93 A.3d 858, 870 (Pa.
Super. 2014) (citing Althaus v. Cohen, 562 Pa. 547, 548 (2000)). In any event, PrimeCare did not object to
the corporate negligence jury instruction and did not claim it owed no duty to Mr. Barbaros.
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1059 (expert testimony detailing “chain of missteps” in care of patient is sufficient to
establish breach).
Not only did the testimony support a finding of breach, but expert testimony may not
have even been required for that finding. “Expert testimony is not required where the matter
under investigation is so simple, and the lack of skill or want of care is so obvious, as to be
within the range of ordinary experience and comprehension of even nonprofessional
persons.” Welsh, 548 Pa. at 514 n.11 (internal citation and quotation marks omitted). For
example, PrimeCare’s failure to oversee the medical staff and enforce adequate rules and
policies was in many ways obvious. See Cangemi v. Cone, 774 A.2d 1262, 1266, 2001 PA
Super 119 (Pa. Super. 2001) (holding expert testimony was not required to prove breach of
duty to formulate and adopt policies where medical staff failed to deliver/communicate
patient’s x-rays and radiologists reports “because the issue is simple and the want of care is
so obvious”). Here, medical orders to provide anti-anxiety medications and blood pressure
readings, among others, were not complied with. These can be considered obvious
breaches of the standard of care, wherein expert testimony would not be necessary in order
for a jury to find PrimeCare negligent.
Second, there was sufficient evidence from which the jury could conclude that
PrimeCare had actual or constructive knowledge of the breach. A reasonable jury could
conclude that PrimeCare had actual knowledge of the breach based on Wendy Johnson’s
involvement in Mr. Barbaros’ care. PrimeCare charged Wendy Johnson with the
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supervision and training of the nursing staff, as well as quality control. Wendy Johnson
testified that she reviewed Mr. Barbaros’ chart and realized he had been without his
medications for days and also that he had significantly elevated vital signs. She, however,
did nothing to pass this information along to the staff or a medical provider.
At a minimum, PrimeCare can rightly be charged with constructive notice. As the
Pennsylvania Supreme Court has recognized:
It is well established that a hospital staff member or employee has a duty to
recognize and report abnormalities in the treatment and condition of its
patients. If the attending physician fails to act after being informed of such
abnormalities, it is then incumbent upon the hospital staff member or
employee to so advise the hospital authorities so that appropriate action
might be taken. When there is a failure to report changes in a patient’s
condition and/or to question a physician’s order which is not in accord with
standard medical practice and the patient is injured as a result, the hospital
will be liable for such negligence.
Thompson, 527 Pa. at 342 (internal citation and quotation marks omitted). A healthcare
provider “is properly charged with constructive notice when it should have known of the
patient’s condition.” Rauch v. Mike-Mayer, 783 A.2d 815, 828, 2001 PA Super 270 (Pa.
Super. 2001) (internal citation and quotation marks omitted); see also Brodowski, 885 A.2d
at 1057 (holding that healthcare provider “will be charged with constructive notice when its
nurses should have known about a patient’s adverse condition, but failed to act.”).
“Furthermore, constructive notice must be imposed when the failure to receive actual notice
is caused by the absence of supervision.” Rauch, 783 A.2d at 828. A healthcare provider’s
“systematic negligence” also serves as a proper basis for finding constructive notice.
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Whittington v. Episcopal Hosp., 768 A.2d 1144, 1154 (Pa. Super. 2001). Despite
PrimeCare’s conclusory assertions to the contrary, which lack any citation to the record or to
case law, the evidence presented at trial was sufficient for a reasonable jury to find that
PrimeCare had actual or constructive notice of a defect in its procedures which created the
risk of harm.
Finally, the evidence presented to the jury was sufficient to conclude that PrimeCare’s
acts and omissions were a substantial factor in causing the harm to Mr. Barbaros.104 Nurse
Wild and Dr. Breggin both testified that PrimeCare’s acts and omissions increased the risk
of harm to Mr. Barbaros and contributed to his suicide. This testimony was sufficient to
permit a jury to find PrimeCare’s acts and omissions were a substantial factor in Mr.
Barbaros’ death. See Sutherland v. Monogahela Valley Hosp., 856 A.2d 55, 60, 2004 PA
Super 245 (Pa. Super. 2004) (“In order for the Plaintiff to place before the jury the question
of whether that increased risk was a substantial factor in producing the plaintiff’s injury, a
plaintiff must only introduce evidence that a defendant’s negligent act or omission increased
the risk of harm and that the harm was in fact sustained.”) (citing Hamil, 392 A.2d at 1286);
see also Thompson, 527 Pa. at 340 (citing to Restatement (Second) of Torts § 323 as basis
for imposing corporate negligence liability); Rauch, 783 A.2d at 828 (expert report alleging
hospital’s conduct exposed plaintiff “to increased risk of harm and that the patient’s risk
The jury found that PrimeCare’s acts and omissions were a substantial factor in bringing about the
harm to Mr. Barbaros, as evidenced by their conclusion that 55% of the total causal negligence was
attributable to PrimeCare itself.
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would have been reduced to a significant degree” had the hospital acted differently was
sufficient for jury to find hospital’s breach was substantial factor in causing harm).
In sum, after reviewing the record the Court concludes that the weight of the evidence
supports the jury’s verdict finding PrimeCare liable for negligence – both vicariously and
directly.105 The jury’s verdict does not shock the Court’s conscience and no substantial
injustice would result by upholding the jury’s verdict. For these reasons, the PrimeCare
Defendants’ motion for a new trial will be denied in its entirety.
B.
Dr. Alex Thomas
In his motion for a new trial, Dr. Thomas claims he is entitled to a new trial because: (1)
there were erroneous evidentiary rulings; (2) there were errors in the jury instructions; and
Although PrimeCare presented testimony that it did not breach its duty of care or cause harm to Mr.
Barbaros, a reasonable jury could disagree with their experts’ conclusions and agree with the Plaintiffs.
There were significant credibility issues with PrimeCare’s experts which the jury could have taken into
consideration when weighing the evidence. Nurse Fillman had previously been retained as an expert on
behalf of PrimeCare and his trial testimony varied significantly from his deposition testimony. Sept. 12,
2016 Trial Tr. at 227:7-237:13. Dr. Mendel, the PrimeCare Defendants’ expert in correctional medicine,
had previously testified for PrimeCare “probably” more than 10 times, “possibly more” than 20 times, and
“probably not” more than 30. Sept. 13, 2016 Trial Tr. at 35:25-40:25. His testimony at trial was also not
consistent with his testimony at his deposition. Id. at 105:12-107:19. Similarly, the jury was free to
disbelieve the testimony of Dr. Guzzardi, the PrimeCare Defendants’ toxicology expert, who testified that it
was impossible based on Mr. Barbaros’ blood levels that he was going through withdrawal because he had
Paxil in his system unrelated to the 30 mg dose. He testified that in the past three years he had been
retained by attorneys at PrimeCare’s counsel’s firm on behalf of PrimeCare on numerous occasions. He
also acknowledged that in every case he never said he was unable to help or provide an opinion. Id. at
233:9-234:8. The jury was also apprised of significant errors in Dr. Guzzardi’s expert report regarding the
most basic of factual circumstances of this case, as well as Dr. Thomas’ expert, Dr. Susan Rushing’s,
disagreement with his opinions and conclusions. Id. at 251:1-255:18. Dr. Guzzardi’s report stated that Mr.
Barbaros saw a medical provider on March 19, 2009, at 2 p.m. and that Mr. Barbaros also received a
“psychiatric evaluation” the following day. Neither of those things happened. Id. The jury could also
discount the testimony of Dr. Cheryl Wills who, although amply qualified and credible, has been retained as
an expert approximately five times by counsel for the PrimeCare Defendants on behalf of PrimeCare. Id. at
13:1-19.
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(3) the jury’s verdict was against the weight of the evidence. The Court has already
addressed most of these issues, supra, in connection with the PrimeCare Defendants’
motion for a new trial. With respect to those issues not addressed, the Court considers
them below.
1.
Permitting Dr. Breggin to Testify
Dr. Thomas states in his motion that the Court erred in permitting Dr. Breggin to testify in
violation of Pennsylvania’s MCARE Act. According to a single sentence in Dr. Thomas’
motion, he is entitled to a new trial because “the Court prejudicially erred and abused its
discretion in permitting Plaintiffs’ liability expert, Dr. Peter Breggin, to testify as to the
standard of care when he was not board certified and otherwise failed to meet the
requirements of Section 512 of the MCARE Act, 40 P.S. § 1303.512, regarding the
admission of expert testimony.” (Doc. 354, at ¶ 354(k)). Consistent with the Defendants’
carelessness and failure to brief numerous post-trial issues raised in their motions, Dr.
Thomas does not mention, or set forth any arguments on, this issue in his supporting brief.
Under the circumstances, the Court considers this argument abandoned. Nevertheless, the
Court will briefly address the merits of his claimed error.
Before trial, Dr. Thomas and the PrimeCare Defendants filed a joint motion asking the
Court to “Preclude Testimony of Plaintiffs ‘Rebuttal’ Expert, Dr. Peter Breggin.” (Doc. 262).
The motion asked the Court to preclude Dr. Breggin from testifying pursuant to Federal Rule
of Evidence 403 on the theory that Plaintiffs intended to call both Dr. Breggin and Dr. Erik
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Roskes as experts in psychiatry and therefore Dr. Breggin’s testimony would be
unnecessarily cumulative. The motion made no reference to Dr. Breggin’s alleged
incompetency to testify under MCARE. The Court denied Defendants’ motion “without
prejudice to the extent that Defendants may raise objections to Dr. Breggin’s testimony at
trial on the basis that it is unnecessarily cumulative in light of the testimony of Dr. Roskes.”
(Doc. 296).
At trial, Dr. Roskes did not testify. Dr. Breggin, however, was called as Plaintiffs’
psychiatry expert. After Dr. Breggin testified regarding his qualifications, Dr. Thomas, joined
by the PrimeCare Defendants, moved to disqualify Dr. Breggin. Defendants moved to
disqualify Dr. Breggin on the theory that, because Dr. Thomas is Board certified in
psychiatry, and Dr. Breggin is not, section 1303.512(c) of Pennsylvania’s MCARE Act
prohibited him from testifying as to the standard of care. Sept. 9, 2016 at 222:7-19. Neither
Dr. Thomas nor the PrimeCare Defendants objected to Dr. Breggin’s competency to testify
as to causation, nor sought his disqualification on this basis.106
The Court denied the motion. The Court stated:
It is true, as Mr. Hill has pointed out, that there is a requirement that in 512,
that the physician who is about to testify be Board certified, if the
Defendant/Physician is himself or herself Board certified.
But it is equally true that, in subsection (e) of this statute, which is, specifically
40 Purdon’s Statute 1303.512, it is equally true that subsection (e) does
provide, quote ‘A Court may waive the same specialty or Board certification
See Lesende, 752 F.3d at 335-36 (finding waiver where, although defendant “raised some
concerns” about an issue, its “objection was not clear and cogent . . . was not sufficiently specific . . . and
failed to state the grounds upon which it rested”).
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requirement for an expert testifying as to the standard of care, if the Court
determines that the expert possess sufficient training, experience and
knowledge to provide testimony as a result of active involvement in or fulltime teaching of medicine in the applicable subspecialty or related field of
medicine within the previous five-year period.
Dr. Breggin gave us a detailed history of his professional and educational
experience, beginning with his Harvard education, his Case Western medical
degree, continuing with his Internship at Upstate Medical Center, his
Residency at Harvard, and, again, his Residency at Upstate Medical. He has
been in private practice from 1968 to November of 2002, he was in private
practice as a psychiatrist in Maryland, thereafter, from that date until
November 2002—pardon me—he moved from Maryland in November 2002,
and thereafter, he has been in private practice in Ithaca, New York.
He has outlined the conferences in which he has talked about how to
evaluate patients, how to make proper diagnoses, how to evaluate psychiatric
drugs. While these are not medical schools, as far as I can recall his
testimony, he did teach at University of Maryland and SUNY Oswego, but,
again, they were not medical schools.
It looks like, as we continue on, he has published 20 to 25 books in
psychiatry, at least three of which dealt exclusively with Paxil, while others,
according to his testimony, had sections devoted to Paxil and anti-depressant
drugs, in general. He continues to maintain the practice, as we speak today.
He has been writing books since 1992 with respect to both Prozac and Paxil.
He detailed—he gave, in some detail, his writings. In particular—and he has
indicated he testified in front of Congress, with respect to the use by the
military of anti-depressant drugs and the effects of that on members of the
military and incidents related thereto. He specifically testified that he has
treated patients with Paxil, that he has published books on Paxil, as I said a
moment ago, and he testified, without contradiction, that he’s still seeing
patients clinically, while he’s reduced his hours, he sees patients between 12
and 20 hours a week, some on a weekly basis, others as needed, and he
continues to do research in the field of psychiatry and has prescribed Paxil, in
connection with his practice, and he’s explained it.
He’s been disqualified in 6 out of 85 cases, but gentleman, I don’t think that
you’ve given me enough to say that he’s not competent to offer an opinion,
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either under the MCARE Act or under Section 701 of the Rules of Evidence.
It clearly seems to me that he is qualified, by both experience, knowledge,
skill and experience to offer an opinion that will help the trier of fact in this
case. So I understand your objection, but it’s overruled.
Id. at 223:10-225:19.
“In 2002, Pennsylvania passed the Medical Care Availability and Reduction of Error Act,
commonly known as MCARE. The statute created a Patient Safety Authority, mandated the
keeping of records with respect to medical errors, and established both the substantive
standards and procedures for the resolution of medical negligence claims.” Estate of
Goldberg v. Nimoityn, 193 F. Supp. 3d 482, 487 (E.D. Pa. 2016). “In plain terms, section
512 of MCARE is a rule of witness competency rather than a rule of expert qualifications.”107
Miville v. Abington Memorial Hosp., 377 F. Supp. 2d 488, 493 (E.D. Pa. 2005) (citations
omitted). Id. Where, as here, Pennsylvania law supplies the rule of decision, a physician
expert witness testifying in federal court regarding the standard of care in a medical
negligence action must: (1) be substantially familiar with the standard of care for the specific
care at issue at the time of the alleged breach; (2) practice in the same subspecialty as the
defendant physician (or in a subspecialty which has a substantially similar standard of care
for the specific care at issue); and (3) if the defendant physician is Board certified, the
testifying expert must also be Board certified in the same or similar field. 40 P.S. §
1303.512(c)(1)-(3). Each of the three requirements set forth in section 512(c) are
The statute applies in the instant action pursuant to Federal Rule of Evidence 601. See Fed. R.
Evid. 601 (“Every person is competent to be a witness unless these rules provide otherwise. But in a civil
case, state law governs the witness's competency regarding a claim or defense for which state law supplies
the rule of decision.”).
107
241
“mandatory.” Anderson v. McAfoos, 618 Pa. 478, 490, 57 A.3d 1141 (2012) (citations
omitted).
Dr. Breggin testified he was familiar with the standard of care applicable in the field of
psychiatry sufficient to satisfy § 1303.512(c)(1)’s requirements. Indeed, Dr. Thomas did not
seek to disqualify him on the theory he was not substantially familiar with the applicable
standard of care for the specific care at issue – prescribing psychiatric medications. Dr.
Breggin also satisfied the requirement under § 1303.512(c)(2) as both he and Dr. Thomas
are psychiatrists. However, because Dr. Thomas is Board certified, and Dr. Breggin is not,
§ 1303.512(c)(3)’s requirements were not satisfied. Thus, the only means by which Dr.
Breggin could competently testify against Dr. Thomas regarding the standard of care is
through the application of subsection (e) of the statute. See Miville, 377 F. Supp. 2d at 494
(“Thus, section 512(c)(3)’s same board-certification requirement can only be waived under
section 512(e) . . .”).
The MCARE statute “creates a safe harbor in subparagraph (e)” and permits “qualified
experts to testify even in the absence of board certification in the defendant’s specialty if the
court is satisfied that the expert ‘possesses sufficient training, experience and knowledge’
as a result of activity in teaching or the practice of medicine in a related field.” Estate of
Goldberg, 193 F. Supp. 3d at 489. Specifically, the statute permits a Court to waive section
512(c)(3)’s Board certification requirement if the Court “determines that the expert
possesses sufficient training, experience and knowledge to provide testimony as a result of
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active involvement in or full-time teaching of medicine in the applicable subspecialty or a
related field of medicine within the previous five-years.” 40 P.S. § 1303.512(e). Thus,
through application of subsection (e), a testifying expert need not be Board certified in any
field of medicine, consistent with the Pennsylvania legislature’s “clear[] inten[t] to avoid
disqualification of experts over technical defects in credentials that do not bear upon a
physician’s actual expertise.” Estate of Goldberg, 193 F. Supp. 3d at 490-91.
After counsel for the Defendants raised their objections, the Court concluded that
although Dr. Breggin is not Board certified, he possessed “sufficient training, experience
and knowledge to provide testimony as a result of active involvement in . . . the applicable
subspecialty . . . within the previous five years” and thus waived the requirements of Section
1303.512(c). Id. The Court’s ruling permitting Dr. Breggin to testify about the standard of
care was not erroneous. It is undisputed that Dr. Breggin and Dr. Thomas are both
psychiatrists. Furthermore, there can be no serious dispute that Dr. Breggin is substantially
familiar with the applicable standard of care in psychiatry and possesses sufficient training,
experience, and knowledge to provide competent testimony.108 Nor can it be disputed that
he has been actively involved in the practice of psychiatry within the past five years. Dr.
Breggin maintains a private psychiatry practice where he treats patients and prescribes
medications and he also continues to research and write books and articles on topics that
The fact that Dr. Breggin has not practiced psychiatry in a correctional did not affect his competency
to testify at trial, nor do Defendants argue otherwise. See Estate of Goldberg, 193 F. Supp. 3d at 491 (“The
extent of his expertise in a hospital setting will certainly be an appropriate focus of cross-examination, but
he possesses the qualifications to render the opinions set forth in his report.”).
108
243
were germane to issues in this litigation. Defendants do not and did not argue otherwise,
instead only objecting to his ability to testify as to the standard of care because he lacked
Board certification.109 Accordingly, the Court’s conclusion that Dr. Breggin was competent
to testify pursuant to 40 P.S. § 1303.512(e) was not in error. Furthermore, Defendants
make no attempt to show how they were prejudiced by the Court exercising its discretion to
waive the board certification requirement in this case.
2.
Failure to Include Agency Question on Verdict Sheet
Dr. Thomas’ motion also seeks a new trial as a result of the Court’s failure to include a
question on the verdict sheet addressing whether Dr. Thomas was an agent of PrimeCare.
However, Dr. Thomas does not address this issue in his supporting brief. Dr. Thomas has
thus abandoned this claim of error by failing to present any argument in support of his claim.
Nevertheless, the Court will briefly address this alleged error.
Dr. Thomas makes no claim that the jury instruction misstated the law applicable to
determining whether he was an agent of PrimeCare. Nor could Dr. Thomas make such an
argument, as the jury was appropriately instructed in accordance with Pennsylvania’s
standard jury instructions regarding a healthcare provider’s liability for the negligence of its
independent contractors. He nevertheless takes issue with the verdict sheet, which did not
contain a specific question requiring the jury to answer whether Dr. Thomas was an agent of
PrimeCare. Dr. Thomas’ argument lacks merit.
Nether Dr. Thomas nor the PrimeCare Defendants moved, either before or during trial, to exclude
Dr. Breggin’s testimony on the theory that he was not qualified or his opinions were not reliable in
accordance with Federal Rule of Evidence 702.
109
244
As discussed, due to the parties’ failure to submit a proposed verdict sheet as set forth
in the Court’s pretrial order, the Court prepared a proposed verdict sheet for the parties’
consideration. After reviewing the verdict sheet, the parties sought changes and jointly
prepared a revised verdict sheet. The parties’ jointly proposed verdict sheet did not contain
a question requiring the jury to explicitly find whether Dr. Thomas was an agent of
PrimeCare. There was no objection to the verdict sheet on this basis.110 Franklin
Prescriptions, 424 F.3d at 340 (party’s “failure to object to either the court’s instruction or the
verdict sheet constitutes a failure to preserve its . . . objection”) (citing Fed. R. Civ. P.
51(c)(1)). Although the verdict sheet was not erroneous, even if it was, Dr. Thomas cannot
now claim he is entitled to a new trial where he invited the very error of which he now
complains. See Lima, 658 F.3d at 333 n.2 (“The doctrine of invited error refers to an error
that a party cannot complain of . . . because the party, through conduct, encouraged or
prompted the trial court to make the erroneous ruling.”). Under these circumstances, Dr.
Thomas is not entitled to a new trial on this basis.
Even if the Court were to apply Federal Rule of Civil Procedure 51(d)’s plain error standard, Dr.
Thomas fares no better. Plain error is an error which is “fundamental and highly prejudicial.” Alexander,
208 F.3d at 426-27. For example, Courts have found plain error where the “instructions are such that the
jury is without adequate guidance on a fundamental question” and the “failure to consider the error would
result in a miscarriage of justice.” Id. The verdict sheet and instructions did not leave the jury “without
guidance on a fundamental question.” Id. Rather, the jury was instructed that Dr. Thomas was an
independent contractor, not an agent of PrimeCare. The jury was also instructed using Pennsylvania’s
standard jury instructions regarding the liability of a healthcare provider for the negligent acts of its
independent contractors that accurately stated Pennsylvania law, and to which no party objected. Under
the circumstances, the verdict sheet’s failure to contain a question on whether Dr. Thomas was an agent of
PrimeCare was not error, let alone plain error resulting in a miscarriage of justice.
110
245
3.
Weight of the Evidence
Dr. Thomas also seeks a new trial on the theory that the jury’s negligence verdict was
against the weight of the evidence. The entirety of Dr. Thomas’ argument in support of this
claim is as follows:
The jury’s verdict was against the weight of the evidence as articulated in
Section A of this Brief. The arguments asserted in Section A are incorporated
by reference. Therefore, if this Court does not enter Judgment as a Matter of
Law, the Court should order a new trial, because the jury’s verdict was
against the weight of the evidence.
(Doc. 391, at 45). The arguments asserted in Section A only address why Dr. Thomas is
entitled to judgment as a matter of law on Plaintiffs’ deliberate indifference claim. The Court
has already found that Dr. Thomas is entitled to judgment as a matter of law on Plaintiffs’
deliberate indifference claim.
Dr. Thomas neither claims nor advances any arguments that the jury’s negligence
verdict was against the weight of the evidence. He has neither briefed this issue, nor raised
a sufficiently specific Rule 50(a) motion attacking the sufficiency of the evidence before the
case was submitted to the jury. He has thus both waived and abandoned any argument
that the weight of the evidence did not support the jury’s negligence verdict. Nevertheless,
for the sole purpose of developing a full and complete record, the Court will briefly address
why it is apparent that not only was the evidence sufficient to find Dr. Thomas liable in
negligence, but that the weight of the evidence also supports this conclusion.
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“Unlike a sufficiency of the evidence claim, when a court evaluates a challenge to the
weight of the evidence it does not view the evidence in the light most favorable to the verdict
winner, but instead exercises its own judgment in assessing the evidence.” Marra, 497 F.3d
at 309 n.18 (citations omitted). “[N]ew trials because the verdict is against the weight of the
evidence are proper only when the record shows that the jury’s verdict resulted in a
miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks
our conscience.” Williamson, 926 F.2d at 1353. The party seeking a new trial must meet a
high threshold in order to obtain this “extraordinary relief.” Marra, 497 F.3d at 409 n.18.
The Court’s review of the record reveals that there was ample evidence supporting the
verdict finding Dr. Thomas liable in negligence and the weight of the evidence does not
suggest otherwise. Dr. Breggin’s testimony, among others, provided a basis for the jury to
conclude that Dr. Thomas’ acts and omissions breached the duty of care. He testified that
prescribing a patient psychiatric medication without knowing any information about the
patient, including when the patient last took the medication or whether the patient was
exhibiting symptoms of withdrawal, among other things, “was not anywhere near the
standard of care,” referring to such conduct as “not even practicing medicine.” Sept. 9,
2016 Trial Tr. at 228:9-277:13. Dr. Thomas himself conceded this much at trial, repeatedly
acknowledging that he should have acted differently and that he usually asks for this type of
information prior to prescribing medications. Additional testimony also supported the jury’s
conclusion that prescribing a patient psychiatric medications without knowing how long the
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patient had been on or off the medication, among other things, did not comport with the
applicable standard of care. Moreover, a portion of the deposition of the PrimeCare
Defendants’ correctional medicine expert, Dr. Mendel, was read at trial wherein he testified
that the responsibilities of a doctor conducting an examination and prescribing medication
over the telephone are no different from those of a doctor actually sitting in the room with
the patient. Id. at 60:15-63:13.
Dr. Breggin’s testimony also provided a sufficient basis for the jury to conclude that Dr.
Thomas’ breach increased the risk of harm to Mr. Barbaros and was a factual cause of his
suicide. He opined that, had Dr. Thomas not breached his duty of care by prescribing
psychiatric medications to a patient without knowing any information about the patient, he
could have prevented Mr. Barbaros from committing suicide by either starting Mr. Barbaros
on a lower dosage of Paxil or by ordering him to be monitored. Id. at 233:21-277:19.
Although Dr. Thomas presented testimony from Dr. Rushing that he did not breach the duty
of care or cause Mr. Barbaros’ suicide, Sept. 13, 2016 Trial Tr. at 151:19-162:21, the jury
was free to disbelieve her testimony and credit the testimony of Dr. Breggin.
The Court’s review of the record does not demonstrate that the jury’s verdict was so
against the weight of the evidence that the jury’s negligence verdict against Dr. Thomas
resulted in a miscarriage of justice. Nor is the verdict shocking to the Court’s conscience.
Accordingly, the jury’s verdict was not against the weight of the evidence and Dr. Thomas
has failed to meet the “high threshold” warranting a new trial.
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VI.
MOTION FOR A NEW TRIAL ON DAMAGES/REMITTITUR
Both the PrimeCare Defendants and Defendant Dr. Thomas also seek a new trial on
damages only or, in the alternative, remittitur. “The grant of a partial new trial is appropriate
only in those cases where it is plain that the error which has crept into one element of the
verdict did not in any way affect the determination of any other issue.” Elcock v. Kmart Corp.,
233 F.3d 734, 758 (3d Cir. 2000) (internal citation and quotation marks omitted). “[A] District
Court in reviewing a jury verdict has an obligation . . . to uphold the jury’s award if there exists
a reasonable basis to do so.” Evans v. Port Auth. of New York & New Jersey, 273 F.3d 346,
351 (3d Cir. 2001) (internal citation and quotation marks omitted). Courts must be
“deferential to a jury’s damages verdict” which “may be disturbed only if it is so grossly
excessive that it shocks the judicial conscience . . . or if it is unconstitutionally excessive
because it was predicated on an impermissible basis.” Leonard, 834 F.3d at 391-92.
“Under Rule 59(e), a party may seek alteration or amendment of the verdict.” Borrell v.
Bloomsburg Univ., 207 F. Supp. 3d 454, 471 (M.D. Pa. 2016). “The rationalization for, and
use of, the remittitur is well established as a device employed when the trial judge finds that a
decision of the jury is clearly unsupported and/or excessive.” Spence v. Bd. of Educ. of
Christina Sch. Dist., 806 F.2d 1198, 1202 (3d Cir. 1986) (citations omitted). “The use of
remittitur is committed to the sound discretion of the district court judge.” Hall v.
Pennsylvania Dept. of Corrs., No. 3:CV-02-1255, 2006 WL 2772551, at *20 (M.D. Pa. Sept.
25, 2006) (citing Evans, 273 F.3d at 354). “[W]hen considering and fixing a remittitur, the
249
court is to ‘consider similar cases, evaluate the evidence, determine a damages figure related
to that evidence, while being mindful that the determination of that amount may not be
precisely calculated.’”111 Borrell, 207 F. Supp. 3d at 471 (quoting Evans, 273 F.3d at 352).
The jury awarded Plaintiffs a total of $2,800,000 in compensatory damages on their
negligence claim: $2,000,000 pursuant to Pennsylvania’s Wrongful Death Act, and
$800,000 under Pennsylvania’s Survival statute. Defendants allege that this amount is
grossly excessive and unsupported by the evidence.
“In general, the determination of compensatory damages is within the province of the
jury and is entitled to great deference.” Spence, 806 F.2d at 1204 (citations omitted). “It is
the province of the jury to assess the worth of the testimony and to accept or reject the
estimates given by the witnesses. If the verdict bears a reasonable resemblance to the
Although the parties do not direct the Court’s attention to this provision, a subsection of
Pennsylvania’s MCARE Act contains a provision governing remittitur of damages in medical negligence
cases. The statute provides, in relevant part:
111
(a) General rule – In any case in which a defendant health care provider challenges a
verdict on grounds of excessiveness, the trial court shall, in deciding a motion for
remittitur, consider evidence of the impact, if any, upon availability or access to health
care in the community if the defendant health care provider is required to satisfy the
verdict rendered by the jury.
(b) Factors and Evidence – A trial court denying a motion for remittitur shall specifically
set forth the factors and evidence it considered with respect to the impact of the verdict
upon availability or access to health care in the community.
(c) Abuse of Discretion – An appellate court reviewing a lower court’s denial of
remittitur may find an abuse of discretion if evidence of the impact of paying the verdict
upon availability and access to health care in the community has not been adequately
considered by the lower court.
40 P.S. § 1303.515(a)-(c).
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proven damages, it is not the function of the court to substitute its judgment for the jury’s.”
Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1 (1994).
The Pennsylvania Supreme Court has held that “[j]udicial reduction of a jury award is
appropriate only when the award is plainly excessive and exorbitant. The question is whether
the award of damages falls within the uncertain limits of fair and reasonable compensation or
whether the verdict so shocks the sense of justice as to suggest that the jury was influenced
by partiality, prejudice, mistake, or corruption.” Haines, 536 Pa. at 455, opinion supplemented
by Haines v. Raven Arms, 539 Pa. 401, 652 A.2d 1280 (1995). “[O]ur judicial system is
grounded in a basic trust of our juries, and we largely leave the assessment of damages in
their hands.” Paves v. Corson, 569 Pa. 171, 177, 801 A.2d 546 (2002).
“Compensatory damages are intended to redress the concrete loss that the plaintiff has
suffered by reason of the defendant’s wrongful conduct.” State Farm Mutual Auto. Ins. Co.
v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). The fact that a
Court may find such an award to be “extremely generous” or “would have found the
damages to be considerably less” is not sufficient to shock the judicial conscience.
Williams, 817 F.2d at 1038 (internal citation and quotation marks omitted).
A.
Wrongful Death Damages
Defendants first claim that the jury’s $2,000,000 compensatory damages award on
Plaintiffs’ wrongful death action was grossly excessive and unsupported by the evidence.
Specifically, Defendants allege:
251
[T]he evidence at trial was that Barbaros’ business was not producing much
income as evidenced on the business tax returns. In addition, Barbaros’
children were educated in Bulgaria and as such, spent much of their time
away from him since he primarily resided in the United States. Mrs. Barbaros
spent anywhere from five to seven months per year in Bulgaria as well. Thus,
the amount of time Barbaros would have been able to provide guidance,
tutelage, support, etc. for his family was limited. Additionally, the financial
support he was providing to his family was also limited as demonstrated by
the tax returns. The loss of a spouse and father is certainly tragic. However,
the jury’s award of $2 million for the loss of a father who spent most of his
time away from his wife and children and whose financial support was
modest, at best, is grossly excessive.
(Doc. 377, at 52-53). The Court disagrees and concludes that the evidence presented at
trial reasonably supports the jury’s compensatory damages award. There is no evidence
that the verdict is “grossly excessive” and there is no suggestion whatsoever the jury’s
award was influenced by partiality, prejudice, mistake or corruption.
An action under Pennsylvania’s Wrongful Death Act is:
one which is created for and is held by statutorily specified survivors and is
intended to compensate them for the pecuniary losses suffered because of
the decedent’s death. Put another way, the action remedies the loss
sustained by the survivors who are deprived of the decedent’s earnings,
companionship, etc.
Miller v. Philadelphia Geriatric Ctr., 463 F.3d 266, 271 (3d Cir. 2006); see also Kiser, 538
Pa. at 226 (“Wrongful death damages are established for the purpose of compensating the
spouse, children, or parents of a deceased for pecuniary losses they have sustained as a
result of the death of the decedent.”). Under the statute, statutorily specified survivors “may
recover not only for medical, funeral, and estate administration expenses, but also for the
value of [decedent’s] services, including society and comfort.” Rettger v. UPMC Shadyside,
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991 A.2d 915, 932, 2010 PA Super 41 (Pa. Super. 2010); accord Spangler v. Helm’s New
York-Pittsburgh Motor Exp., 396 Pa. 482, 484-85, 153 A.2d 490 (1959). Pennsylvania
Courts have held that the term “services” as found in the statute “clearly extends to the
profound emotional and psychological loss suffered upon the death of a parent or a child
when the evidence establishes the negligence of another as its cause.” Rettger, 991 A.2d
at 933.
The Court has reviewed the record and finds that Plaintiffs presented sufficient evidence
from which the jury reasonably could have awarded $2,000,000 under the Wrongful Death
Act. This award is not grossly excessive, does not offend the Court’s conscience, and
nothing about the award suggests partiality, prejudice, mistake or corruption warranting a
new trial or remittitur.
Defendants take issue with the jury award, highlighting the tax returns presented at trial
which they suggest prove Mr. Barbaros’ business was not producing much income and
therefore his support to his family was limited. Although it is true that Peter Ponzini testified
about the Barbaros’ S Corporation’s tax returns, which revealed negative amounts for
several years, Mr. Ponzini also testified that, despite these numbers, both Mr. and Mrs.
Barbaros were drawing salaries as officers of the corporation and would have earned
income as a result (despite the negative numbers on the tax returns).112
Mr. Ponzini prepared Mr. Barbaros’ tax returns and testified that the Barbaros family would have
earned $43,819 in 2005, $50,660 in 2006, $79,196 in 2007, and $44,992 in 2008. Sept. 12, 2016 Trial Tr.
at 157:7-192:18.
112
253
Second, Plaintiffs presented testimony from their economic expert, David Hopkins. Mr.
Hopkins is an actuarial economic consultant and provided an expert report that calculated
Mr. Barbaros’ lost earnings capacity. He concluded that, depending on a number of factors,
Mr. Barbaros’ lost earnings capacity would be in the range of $540,486 to $810,735. Sept.
12, 2016 Trial Tr. at 215:19-25. Mr. Hopkins’ testimony was uncontroverted. Neither the
PrimeCare Defendants nor Dr. Thomas called any expert on this subject.113 Reducing the
uncontroverted lost earnings capacity figures presented by Mr. Hopkins from the total
amount of compensatory damages awarded by the jury for the wrongful death claim, it
appears the jury awarded Plaintiffs noneconomic damages in the approximate range of
$1,200,000 to $1,450,000.
The jury’s noneconomic damage award on Plaintiffs’ wrongful death action was not
“grossly excessive” on the facts of this case or under Pennsylvania law. Defendants merely
speculate that because Mr. Barbaros’ children were “educated in Bulgaria,” and his wife
Miryem also spent a portion of the year there, that it must follow that the amount of time he
would have been able “to provide guidance, tutelage, support, etc. for his family was limited”
and therefore the award was grossly excessive. The Court does not agree. A reasonable
jury could find otherwise based on the testimony of several witnesses, including Miryem and
Mumtaz Barbaros.
113
Dr. Thomas did retain an economic expert who he was prepared to call at trial, but chose not to.
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“If the verdict bears a reasonable resemblance to proven damages, it is not the function
of the court to substitute its judgment for the jury’s.” Kiser, 538 Pa. at 224. For this reason,
Courts applying Pennsylvania law routinely reject a defendant’s request to disturb a jury’s
compensatory damage award under the statute. See, e.g. Conlon v. Trans Nat’l Trucking,
LLC, 506 F. App’x 185, 193 (3d Cir. 2012) (“Furthermore, the $2,223,289.000 awarded to
[decedent’s] family by the jury under Pennsylvania Wrongful Death Act does not shock our
conscience.”); Hatwood v. Hosp. of Univ. of Pennsylvania, 55 A.3d 1229, 2012 PA Super
217 (Pa. Super. 2010) (jury award of $1,500,000 for noneconomic damages to parents of
deceased child not excessive); Hyrcza v. West Penn Allegheny Health Sys., Inc., 978 A.2d
961, 979-81, 2009 PA Super 119 (Pa. Super. 2009) (evidence supported $7,213,200 jury
award under wrongful death and survival statutes); Tindall v. Friedman, 970 A.2d 1159,
1177, 2009 PA Super 50 (Pa. Super. 2009) (recognizing that “damages for loss of
consortium have no market value, and the amount awarded for loss of consortium is left to
the sound judgment and common sense of the fact-finder”) (internal citation and quotation
marks omitted); McManamon v. Washko, 906 A.2d 1259, 2006 PA Super 245 (Pa. Super.
2006) (affirming $10,000,000 noneconomic damages award on negligence claim). Neither
the PrimeCare Defendants nor Dr. Thomas have satisfied their burden to show that the
evidence presented at trial was insufficient to justify the $2,000,000 award. Under the
circumstances, the Court sees no basis with which to grant the Defendants’ request for
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remittitur. The award was based on competent evidence and is neither grossly excessive
nor conscience shocking.
B.
Survival Action Damages
Defendants next claim that the damages awarded by the jury under the survival statute
were grossly excessive and unsupported by the evidence. The jury awarded Plaintiffs
$800,000 under Pennsylvania’s Survival Act, 42 Pa.C.S. § 8302. A survival action:
is brought by the administrator of the decedent’s estate in order to recover the
loss to the estate of the decedent resulting from the tort. The measure of
damages awarded in a survival action include the decedent’s pain and
suffering, the loss of gross earning power from the date of injury until death,
and the loss of his earning power-less personal maintenance expenses, from
the time of death through his estimated working life span.
Kiser, 538 Pa. at 226-27 (internal citations omitted).
Defendants argue that “the evidence at trial was Barbaros would have been
unconscious within four to seven minutes after consuming the remnants of his shredded
shirt” and, therefore, “[a]ny conscious pain and suffering his actions caused would have
ended in a short timeframe.” (Doc. 377, at 53). They further claim that “[t]o substantiate the
award, the jury would have had to award between $100,000 and $200,000 for every minute
of self-induced conscious pain and suffering.” Id.
As an initial matter, the Court notes that the jury did not award damages to the estate to
compensate for Mr. Barbaros’ “self-induced conscious pain and suffering.” Id. Rather, the
jury awarded damages to the estate after reasonably concluding that the Defendants’ acts
and omissions caused these damages.
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To determine whether a jury’s pain and suffering award is excessive, courts should
consider: “1) the severity of the injury; 2) whether the injury is demonstrated by objective
physical evidence; 3) whether the injury is permanent; 4) the plaintiff’s ability to continue
employment; 5) disparity between the amount of out of pocket expenses and the amount of
the verdict; and 6) the amount demanded in the original complaint.” Haines, 536 Pa. at 457.
The injury suffered by Mr. Barbaros was permanent, demonstrated by objective physical
evidence, and resulted in his death. Plaintiffs presented uncontroverted evidence from Dr.
Loreen Sheren, an anesthesiologist and pain and suffering expert, who testified to a
reasonable degree of medical certainty as to the conscious pain and suffering Mr. Barbaros
would have experienced as a result of suffocation from ingesting the t-shirt. Sept. 9, 2016
Trial Tr. at 172:7-190:12. His testimony presented a rather horrific and painful experience.
Defendants did not present their own anesthesiologist or pain and suffering expert to refute
this testimony, nor do they suggest what would constitute a more reasonable approximation
of damages.
The Court cannot say the jury’s award had no evidentiary support or is so grossly
excessive as to shock the Court’s conscience. Courts applying Pennsylvania law routinely
decline to disturb jury’s pain and suffering verdicts except in the most exceptional of
circumstances not present here. See, e.g., Haines, 536 Pa. at 457-58 (affirming reduction
of pain and suffering damages from $8 million to $5 million); Tillery v. Children’s Hosp. of
Philadelphia, 156 A.3d 1233, 1247, 2017 PA Super 50 (Pa. Super. 2017) (denying request
257
for remittitur of $7.5 million noneconomic damage award); Petrasovits v. Kleiner, 719 A.2d
799 (Pa. Super. 1998) (holding $908,000 pain and suffering damages awarded to patient for
back injury in medical malpractice action not excessive); Krysmalski by Krysmalski v.
Tarasovich, 424 Pa. Super. 121, 622 A.2d 298 (1993) ($7,000,000 pain and suffering award
for loss of leg and attendant pain and suffering not excessive).
Mindful of the Pennsylvania Supreme Court’s instruction that if a jury verdict “bears a
reasonable relationship to the proven damages, it is not the function of the court to
substitute its judgment for the jury’s,” Kiser, 539 Pa. at 225, and that judicial reduction of a
jury award is “appropriate only when the award is plainly excessive and exorbitant,” Haines,
536 Pa. at 455, the Court concludes that the jury’s verdict awarding damages under the
wrongful death and survival statutes was not “plainly excessive and exorbitant” and bears a
reasonable relationship to the damages proven at trial. Accordingly, the Court will deny
Defendants’ request for remittitur.114
To the extent the Court “must consider evidence of the impact, if any, upon availability or access to
health care in the community if the defendant health care provider is required to satisfy the verdict rendered
by the jury,” 40 P.S. § 1303.515(a), the Court notes that PrimeCare has submitted neither evidence nor
argument that, if it is required to satisfy the $2,800,000 compensatory damage award, there would be any
impact upon the availability or access to health care in the community. See Vogelsberger, 903 A.2d at 553
(“[T]he defendants in the instant case have not argued or provided any evidence with regard to any impact
on the availability or accessibility of health care if they were made to satisfy the jury’s verdict. Their
argument in favor of remittitur is premised on [plaintiff’s] lack of trial evidence to support the noneconomic
damages award . . . Accordingly, section 1303.515 is not really pertinent herein.”); see also Lombardo v.
Gardner, 2007 WL 2450347, at *254-55 (Pa. Ct. Cm. Pl. 2007) (“The defendant has not provided the court
with any facts or verification of facts for consideration Therefore, the court is going to affirm the jury award
because defendant has not come forth with any evidence to support his claim.”) The same holds true here.
None of the defendants have presented evidence as to any effect upon availability or access to health care
in the community if they were required to satisfy the jury’s verdict. The fact that PrimeCare has posted a
supersedeas bond in the amount of $13,303,505, without arguing for a reduced bond on the theory that it
114
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C.
New Trial – Compensatory Damages
The Court will also deny Defendants’ request for a new trial limited to compensatory
damages for substantially the same reasons set forth above. The jury’s compensatory
damage awards were rational and supported by competent evidence. The award was
neither grossly excessive nor conscience shocking. Nor is there any evidence to suggest
that the jury’s compensatory damage awards were the result of passion, prejudice, mistake,
or corruption. Accordingly, the Court will deny Defendants’ motion for a new trial limited to
compensatory damages.
VII.
MOTION FOR DELAY DAMAGES
Finally, the Court will consider Plaintiffs’ motion for delay damages.115 (Doc. 346).
Plaintiffs ask the Court to mold the compensatory damages verdict from $2,800,000 to
$3,266,488.04 to reflect an award of delay damages in the amount of $466,488.04. (Id. at
3). This represents delay damages from April 26, 2012 (one year after service of process of
the original complaint) through March 23, 2016 (the eighth day after the trial originally was
would have a devastating effect on its business and operations, suggests that requiring satisfaction of the
$2,800,000 compensatory damages verdict would not in any way adversely impact the availability or
access to health care in the community. In addition, the relevant community (i.e., state and county prison
facilities) is constitutionally required to provide access to healthcare, so it is unclear how, if at all, requiring
Defendants to satisfy the award would have an impact on availability or access to health care. Accordingly,
the Court finds that requiring Defendants to pay $2,800,000 in compensatory damages would not have any
impact on the availability or access to health care in the community.
The Court treats Plaintiffs’ motion “as a Rule 59(e) motion.” Rosen v. Rucker, 905 F.2d 702, 706
(3d Cir. 1990). This is so even if where, as here, the motion “did not specify which Federal Rule of Civil
Procedure it was brought under.” Id. at 705.
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set to begin). (Id. at 2). Both the PrimeCare Defendants and Dr. Thomas oppose Plaintiffs’
motion. (Docs. 350, 359).
The PrimeCare Defendants do not object to the formula used by Plaintiffs to calculate
delay damages or contest the date on which Plaintiffs assert delay damages began to
accrue – April 26, 2012. Rather, they argue that the accrual date for delay damages ended
on February 16, 2016, which represents the date the Court granted Plaintiffs’ motion for
continuance and continued the trial. (Doc. 350 at 3). Alternatively, the PrimeCare
Defendants, though “conced[ing] that the current state of law in the Third Circuit permits
Plaintiffs to pursue a claim for delay damages under Pennsylvania law,” (id. at 2),
nevertheless claim that imposing delay damages is “arguably in violation of the Erie
Doctrine.” (Id.).
Dr. Thomas objects to Plaintiffs’ request for delay damages, incorporating by reference
“the issues, arguments and contentions asserted” by the PrimeCare Defendants in their
brief. (Doc. 360 at 1). He also claims that until the Court rules on the pending post-trial
motions “molding the jury verdict to reflect delay damages would be premature.” (Id.).
Pennsylvania Rule of Civil Procedure 238 provides for delay damages in actions
involving bodily injury, death, or property damage. “Under Pennsylvania Rule of Civil
Procedure 238, a prevailing plaintiff in a Pennsylvania tort action may receive what amounts
to prejudgment interest on a compensatory damages award.” Weber v. GAF Corp., 15 F.3d
35, 36 (3d Cir. 1994). “[T]he unambiguous language of Rule 238(a)(1) requires that, ‘in all
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civil cases wherein the plaintiff seeks monetary relief for bodily injury, delay damages shall
be added to compensatory damages awarded to the plaintiff against each defendant found
to be liable by the jury.’” Tillery, 156 A.3d at 1249 (quoting Pa.R.C.P. 238(a)(1)). Delay
damages are not available, however, for any period of time “during which the plaintiff
caused delay of the trial.” Pa. R. Civ. P. 238(b)(1)(ii).
The PrimeCare Defendants first argue that awarding delay damages is impermissible
because imposing such an award is “arguably in violation” of Erie R.Co. v. Tompkins, 304
U.S. 64, 58 S.Ct. 817, 82 L.Ed.2d 1188 (1938). The PrimeCare Defendants do not cite any
case to support this proposition (other than Erie itself). The Third Circuit “has determined
that for purposes of the Erie doctrine [Rule 238] is substantive and thus applies in federal
courts sitting in diversity.” Rosen, 905 F.2d at 705 (citing Fauber v. Kem Transp. & Equip.
Co., 876 F.2d 327, 328 (3d Cir. 1989)). Although this is not a diversity case, the Court has
exercised supplemental jurisdiction over Plaintiffs’ negligence claim and Pennsylvania law
controls the rules of decision. See Chin v. Chrysler LLC, 538 F.3d 272, 278 (3d Cir. 2008)
(“When a district court’s jurisdiction is predicated on diversity of the parties, or when the
court hears a state-law claim based on its supplemental jurisdiction . . . the court must
determine whether under Erie . . . a matter is substantive or procedural.”) (citations omitted).
Because Third Circuit case law compels a finding that Rule 238 is substantive, not
procedural, the Court finds no merit to the PrimeCare Defendants’ argument that awarding
delay damages on Plaintiffs’ negligence claim violates the Erie doctrine.
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Next, the PrimeCare Defendants argue that, even if delay damages are permissible, 45
days must be excluded from the award based on Plaintiffs’ delay, resulting in a reduction of
$12,082.56. These days must be excluded, according to the PrimeCare Defendants,
because Plaintiffs “erroneously calculate the accrual date to end on March 23, 2016, which
was the original end date for the conclusion of trial.” (Doc. 351, at 3). Although trial for this
case was scheduled to commence on March 14, 2016, a month before trial, Plaintiffs’
counsel requested a continuance based on what the Court found to be “legitimate and
compelling personal and family concerns.” (Doc. 198). Accordingly, the Court granted the
request and trial was postponed until September 6, 2016. However, Plaintiffs only seek
delay damages through March 23, 2016, which the parties agree “was the original end date
for the conclusion of trial.” (Doc. 351, at 3).
Under Rule 238, it is Defendants’ burden to prove that Plaintiffs are not entitled to delay
damages. Rosen, 905 F.2d at 707 (citing Pa. R. Civ. P. 238 (Explanatory Comment)); see
also, Sopko v. Murray, 947 A.2d 1256, 1258, 2008 PA Super 87 (Pa. Super. 2008) (“It is the
defendant who bears the burden of proof when opposing the imposition of delay damages
and may do so by establishing that (1) the requisite offer has been made or (2) the plaintiff
was responsible for specified periods of delay.”). “The Explanatory Comment to Rule 238
states that ‘not every procedural delay is relevant to the issue of delay damages, but only
such occurrences as actually cause delay of the trial.” Rosen, 905 F.2d at 708 (quoting Pa.
R. Civ. P. 238 (Explanatory Comment)). Here, the PrimeCare Defendants have not cited a
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single case, nor advanced any argument, as to why the accrual date should have ended on
February 16, 2016 “which would have been the date the Order was entered continuing said
trial.” (Doc. 351, at 4).
It is apparent that, had Plaintiffs requested delay damages through the date of the
judgment, in September 16, 2016, those damages would have been improper because, but
for Plaintiffs’ request for a continuance, the parties agree that trial would have been
completed on March 23, 2016. See Wirth v. Miller, 398 Pa. Super. 244, 254, 580 A.2d 1154
(1990) (recognizing that granting a “request for a continuance conclusively caused a delay
of trial”). But what is less clear is the date on which the damages stopped accruing—the
date of the Order postponing trial, as the PrimeCare Defendants claim, or the date the
original trial was scheduled to be completed, as Plaintiffs argue.116 The Third Circuit has
recognized that Rule 238 “limits the type of delay caused by a plaintiff for which a defendant
may avoid delay damages to delay of the trial – a term that the explanatory comments
suggest will be construed relatively narrowly.” Knight v. Tape, Inc., 935 F.2d 617, 625 (3d
Cir. 1991) (internal citation and quotation marks omitted). Because of this relatively narrow
construction, and recognizing that the PrimeCare Defendants have the burden to prove that
the reduction is appropriate, the Court finds that March 23, 2016, not February 16, 2016, is
the appropriate end date for the accrual of delay damages. Therefore, because the
PrimeCare Defendants have set forth no argument as to why delay damages stopped
None of the parties have argued that the delay damages should have stopped accruing on March
14, 2016 – the original date that the trial was scheduled to begin.
116
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accruing on the date of the Court’s Order granting Plaintiffs’ request for a continuance, they
cannot satisfy their burden to demonstrate that a $12,082.56 reduction in delay damages is
appropriate.
Lastly, Dr. Thomas argues that, in addition to the PrimeCare Defendants’ arguments that
the Court has already considered and rejected, supra, an award of delay damages is
premature until the Court disposes of the post-trial motions. Dr. Thomas does not cite a
single case to support this proposition. In any event, this argument is without merit. First,
this memorandum opinion and the Court’s accompanying Orders resolve all post-trial
motions and uphold the jury’s compensatory damage award of $2,800,000 on Plaintiffs’
negligence claim. Second, Courts in this Circuit routinely resolve motions for delay
damages and post-trial defense motions at the same time. See, e.g., Boernert v. Respet,
No. 3:06-cv-362, 2009 WL 1743741 (M.D. Pa. June 18, 2009); Calgon Carbon Corp. v.
Potomac Capital Inv. Corp., Civil Action No. 98-0072, 2007 WL 2907865 (W.D. Pa. Sept.
30, 2007); St. Paul Fire & Marine Ins. Co. v. Nolen Grp., Inc., Civil Action No. 02-8601, 2007
WL 2571524 (E.D. Pa. Aug. 31, 2007).
In sum, the Court will grant Plaintiffs’ motion for delay damages and will mold the verdict
to reflect the addition of $466,488.04 in delay damages on the jury’s compensatory damage
award of $2,800,000, bringing the total amount to $3,266,488.04.
*
*
*
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To summarize:
(1) The Court will grant the individual PrimeCare Defendants and Dr. Thomas’ motions for
judgment as a matter of law on Plaintiffs’ § 1983 claim. Viewing the evidence in the
light most favorable to the Plaintiffs, no reasonable jury could conclude that any of the
individual Defendants violated Mr. Barbaros’ Fourteenth Amendment rights by acts or
omissions exhibiting deliberate indifference to his serious medical needs. Should the
Court of Appeals reverse this Court’s decision granting judgment as a matter of law on
this claim, the individual Defendants would not be conditionally entitled to a new trial
on Plaintiffs’ § 1983 claim and the jury’s verdict would be upheld.
(2) PrimeCare’s motion for judgment as a matter of law on Plaintiffs’ § 1983 claim will
also be granted. Viewing all the evidence in the light most favorable to the Plaintiffs,
the Plaintiffs presented insufficient evidence from which a reasonable jury could find
PrimeCare liable under Monell. Should the Court of Appeals reverse this Court’s
decision on this issue, PrimeCare would not be conditionally entitled to a new trial on
Plaintiffs’ § 1983 claim and the jury’s verdict would be upheld.
(3) Because the Court is granting Defendants’ motions for judgment as a matter of law
on the § 1983 claims, it follows that Plaintiffs’ motion for attorneys’ fees and costs
must be denied. Such denial is without prejudice to the right to raise this issue again
should the Court of Appeals reverse or vacate this Court’s entry of judgment as a
matter of law on the § 1983 claims.
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(4) The Court will deny the PrimeCare Defendants and Dr. Thomas’ motions for
judgment as a matter of law on Plaintiffs’ negligence claim. Both the PrimeCare
Defendants and Dr. Thomas waived these issues by failing to raise the issues in a
sufficiently specific Rule 50(a) motion and/or abandoned the issues for failing to brief
the issues in support of their post-trial motions. As such, the Defendants cannot now
“renew” the issues in Rule 50(b) motions.
(5) The Court will grant PrimeCare’s motion for judgment as a matter of law on Plaintiffs’
claim for punitive damages. Viewing the evidence in the light most favorable to the
Plaintiffs, no reasonable jury could conclude that PrimeCare’s acts and omissions
were sufficiently outrageous and exhibited reckless disregard for the rights of others
to warrant punitive damages under Pennsylvania law. Should the Court of Appeals
reverse this Court’s decision on this issue, PrimeCare would not be conditionally
entitled to a new trial on punitive damages and the jury’s verdict would be upheld.
(6) The PrimeCare Defendants and Dr. Thomas’ motions for a new trial on Plaintiffs’
negligence claim will be denied.
(7) The PrimeCare Defendants and Dr. Thomas’ motions for a new trial and/or remittitur
with respect to the jury’s $2,800,000 compensatory damages award under the
Wrongful Death and Survival Act will be denied.
(8) Plaintiffs’ motion for delay damages will be granted.
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VIII.
CONCLUSION
For the foregoing reasons, the PrimeCare Defendants and Dr. Alex Thomas' motions
(Docs. 354, 366) will be granted in part and denied in part. Plaintiffs' motion for attorneys'
fees (Doc. 348) will be denied without prejudice. Plaintiffs' motion for delay damages (Doc.
346) will be granted. A separate Order follows.
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