Opinion
Civil No. 01-3004-CO.
July 16, 2004
ORDER
Plaintiff brings this action against defendants alleging civil rights violations and wrongful death claims. Plaintiff seeks injunctive relief, economic, non-economic, and punitive damages, interest, costs, and attorney's fees. Defendants move for summary judgment (#73).
In their reply, defendants move to exclude the portions of Gary A. Jacobsen, M.D,'s affidavit which relate to the cause of Mr. Thomason's death and that relate to the abilities of Mr. Hunt-Kelly and Ms. Nesser to do medical assessments, develop treatment plans, or prescribe medications, arguing that the testimony is inadmissible because:
1) it is insufficient to meet the standards set forth in Daubert — the affidavit consists of subjective opinion which is unsupported by scientific principles, data, or evidence;
2) Dr. Jacobsen is not qualified to testify as to Mr. Thomason's cause of death — Mr. Thomason died from an intracerebral hemorrhage — Dr. Jacobsen has no experience or education in neurology and no experience treating patients with intracerebral hemorrhages; and
3) Dr. Jacobsen's subjective opinion regarding the training of Mr. Hunt-Kelly and Ms. Nesser is inadmissible.
In response to this motion, the court set a briefing schedule to afford plaintiff an opportunity to respond in writing to the motion and the court held a Daubert hearing on May 19, 2004. Dr. Jacobsen testified at the hearing. Plaintiff presented Dr. Jacobsen's curriculum vitale and the deposition testimony of Eric Brunswick, M.D., Mr. Thomason's treating emergency room physician, as exhibits. Defendants' expert, Michael S. Narus, D.O., testified, and defendants presented photographs of both a normal CT scan and Mr. Thomason's CT scan as exhibits.
The burden of laying the proper foundation for the admission of expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n. 10 (1993). The court must, on the record, make a determination that the expert's opinion is reliable and relevant. Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.), cert. denied, 124 S.Ct. 533 (2003). There must be specific findings on the record showing the court carefully and meticulously reviewed the proffered scientific evidence. Id. Expert testimony must be properly grounded, well-reasoned, and not based merely on subjective belief or speculation. Daubert, 509 U.S. at 589-590.
The court must determine:
1) whether the opinion is based on scientific, technical, or other specialized knowledge;
2) whether the expert's opinion would assist the trier of fact in understanding the evidence or determining a fact issue;
3) whether the expert has the appropriate qualifications, such as specialized knowledge, experience, training, or education;
4) whether the testimony is based upon sufficient facts or data the facts or data must be the type reasonably relied upon by experts in the field, but the facts or data need not be admissible;
5) whether the testimony is the product of reliable principles and methods — Factors that determine the reliable application of the principles and methods to the facts of the case include:
A) whether the methodology used can be and has been tested;
B) whether the methodology has been subject to peer review and publication;
C) whether there is a known potential rate of error of the technique or theory when applied;
D) whether there are standards controlling the technique or theory used;
E) whether the theory or technique is generally accepted in the relevant scientific or technical community;
F) whether the expert ruled out other alternative explanations;
G) whether the expert sufficiently connected the proposed testimony with the facts of the case;
H) whether the expertise was developed for litigation or naturally flowed from the expert's research. Lauzon v. Senco Products, Inc., 270 F.3d 681,686-687 (8th Cir. 2001).
When an expert does not conduct his own research, the court must determine whether any objective, verifiable evidence exists to support that the testimony is based on scientifically valid principles. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317-1318 (9th Cir.), cert. denied, 516 U.S. 869 (1995). To demonstrate this, the party may offer "proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication." Id. at 1318. The proponent may satisfy this burden by having the expert "explain precisely how they went about reaching their conclusions and point to some objective source — a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like — to show that they have followed the scientific method, as is practiced by (at least) a recognized minority of scientists in their field." Id. at 1318-1319. The expert must explain the reasoning and methods underlying his conclusion, and must use scientific methods or procedures. Claar v. Burlington Northern Railroad Co., 29 F.3d 499, 502 (9th Cir. 1994).
At the hearing, plaintiff presented the curriculum vitale of Dr. Jacobsen. It shows, in part, that Dr. Jacobsen received his M.D. in 1967, performed an internship in 1967-1968, did his residency in 1971, practiced as a flight surgeon in the U.S. Army from 1968-1970, was issued his medical license in Oregon in 1973, did a fellowship in chemical dependency in 1987-1988, is certified in addiction medicine, and has been in private practice specializing in addiction medicine since 1990. It is clear from his credentials and experience that Dr. Jacobsen is a medical expert in addiction medicine.
Dr. Jacobsen opined that the defendants failure to adequately treat Mr. Thomason's severe alcohol withdrawal led to Mr. Thomason's blood pressure being elevated and in turn this elevated blood pressure led to his intracerebral hemorrhage which caused Mr. Thomason's death. Dr. Jacobsen testified that Dr. Brunswick testified that cerebral hemorrhages are almost always due to hypertension. He testified that alcohol withdrawal causes high blood pressure and that Mr. Thomason's intracerebral hemorrhage was possibly related to alcohol withdrawal. He testified that studies showed that 40% of patients who suffered a hemorrhagic stroke were alcohol users. He testified that there are other causes of hemorrhagic strokes, but that Mr. Thomason's only risk factor was high blood pressure associated with alcohol withdrawal.
Dr. Jacobsen opined that it was medically probable that the cause of Mr. Thomason's intracerebral hemorrhage was high blood pressure caused by under treated alcohol withdrawal. When asked the basis for his opinion, Dr. Jacobsen testified that under treatment of alcohol causes high blood pressure and that high blood pressure causes strokes as shown by "the literature" and inpatient treatment. He testified that Mr. Thomason's only risk factor for stroke was high blood pressure caused by under treated alcohol withdrawal.
On cross examination, Dr. Jacobsen testified that he has no expertise in neurology. He never treated a patient with an intracerebral hemorrhage. He never had a patient under treatment for alcohol withdrawal suffer an intracerebral hemorrhage. He knew of no studies or publications connecting alcohol withdrawal with intracerebral hemorrhages.
No testimony was presented regarding the allegations of inadequate training of Mr. Hunt-Kelly or Ms. Nesser.
There was no evidence presented regarding: the methodology Dr. Jacobsen used to arrive at his conclusions about Mr. Thomason's cause of death or that the nursing staff was inadequately trained; whether Dr. Jacobsen conducted his own research; whether the research supporting his conclusions was subjected to scientific scrutiny; or whether Dr. Jacobsen used scientific methods or procedures in reaching his conclusions. Dr. Jacobsen failed to outline the scientific method or procedures which led to his conclusions. Dr. Jacobsen did not explain how he reached his conclusions. Dr. Jacobsen did not point to any objective source to show he followed any scientific method or procedure to reach his conclusions. Dr. Jacobsen did not rule out other possible causes of Mr. Thomason's intracerebral hemorrhage, other than to state that Mr. Thomason's only risk factor was high blood pressure caused by under treated alcohol withdrawal. Defendants' expert Dr. Narus testified that intracerebral hemorrhages could be caused by many things and that the only way to determine the actual cause is to perform a brain autopsy.
The court finds that plaintiff has failed to show that Dr. Jacobsen's opinions regarding the cause of Mr. Thomason's intracerebral hemorrhage or that the nursing staff was inadequately trained meet the reliability requirements of Fed.R.Evid. 702 and Daubert. There is no evidence or testimony showing that Dr. Jacobsen's opinion met any of the factors set forth in Daubert for scientific reliability. Therefore, Dr. Jacobsen's testimony regarding the causation of Mr. Thomason's death and the inadequate training of nursing staff is stricken. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).
I. FACTS
In support of their motion for summary judgment, defendants present the following relevant facts:
5. On January 5, 2000, a warrant was issued for the arrest of Mr. Thomason on a charge of failing to appear. On January 16, 2000, Mr. Thomason was arrested on the warrant for failing to appear, and booked at the detention center on the charges of improper use of the 911 system and failure to appear. (Ex. D to Aff. of Montgomery; Warrant, Ex. E to Aff. of Montgomery; Booking Sheet and Ex. F to Aff. of Montgomery; Bench Warrant Return of Service).
6. When he was booked, Mr. Thomason did not have any signs of recent physical injury. Mr. Thomason informed the booking officers that he had not received any blows to his head in the last twelve hours. During the booking process, Deputy Dan House had Mr. Thomason undergo a breath alcohol test, which resulted in a .06 blood alcohol level. (Ex. G to Aff. of Montgomery; Intake Medical Information Form, and Ex. K to Aff. of Montgomery; Deposition of House, p. 9).
7. John Hunt-Kelly is a registered nurse employed at the Merle West Medical Center (Merle West), and has been employed by Merle West since 1995. From March 1999 to March 2001, Mr. Hunt-Kelly was employed full time by Klamath County Corrections. Mr. Hunt-Kelly has been a registered nurse since 1994. Mr. Hunt-Kelly has an associate degree in nursing. (Ex. H to Aff. of Montgomery; Deposition of Hunt-Kelly pp. 7-10).
8. On January 20, 2000, at or about 9:00 a.m., Mr. Hunt-Kelly examined Mr. Thomason in his cell. At that time, Mr. Hunt-Kelly concluded that Mr. Thomason was experiencing alcohol withdrawal, and ordered the detention center staff to provide Mr. Thomason fruit juices and Librium, pursuant to Medical Standing Order 016. (Ex. H pp. 24-25 to Aff. of Montgomery and Ex. J to Aff. of Montgomery; Medical Standing Order 016).
9. On January 21, 2000, Mr. Hunt-Kelly observed Mr. Thomason again in his cell. At that time, Mr. Thomason's speech was garbled and incoherent. Mr. Thomason was disoriented, was unable to stand up, and smelled of urine. As a result, Mr. Hunt-Kelly consulted with Klamath County Sergeant Sheppard and Captain John Lawson, and the decision was made to transport Mr. Thomason to Merle West. (Ex. H p. 42 to Aff. of Montgomery).
10. Mr. Thomason arrived at the emergency room of Merle West at 12:05 on January 21, 2000. Upon his arrival at Merle West, Mr. Thomason was immediately triaged. He was triaged again at 13:55 and 14:30 on January 21. The notes of Dr. Heather A. Michels, M.D., which were dictated at 14:54 on January 21, contain no mention of any significant neurological event relating to Mr. Thomason. After Mr. Thomason was examined by Dr. Michels, alcohol withdrawal protocols were ordered. Dr. J. Eric Brunswick, M.D., evaluated Mr. Thomason, and noted that he had tremors in all extremities, that he was moving all extremities, that he had no focal asymmetry, and that he had no evidence of trauma. Dr. Brunswick then scheduled Mr. Thomason to be given further alcohol withdrawal protocol. (Aff. of Michael S. Narus and Ex. I to Aff. of Montgomery; Merle West Medical Records).
11. At 15:50 on January 21, there was a sudden change in Mr. Thomason's mental status that conflicted with Mr. Thomason's earlier neurological evaluation. Mr. Thomason had stopped rambling, and was only moving his left arm in an extensor posturing gesture. His pupils were dilated, and an emergency CT scan of his head was ordered. The CT scan occurred at 15:37, and revealed that Mr. Thomason had suffered a massive intracerebral hemorrhage. After reviewing the CT scan and learning of Mr. Thomason's condition, Dr. Brunswick dictated notes indicating that Mr. Thomason's condition was dismal, and that he would likely not survive the hemorrhage. (Id.).
12. After it was learned that Mr. Thomason had suffered an intracerebral hemorrhage Mr. Thomason was taken to the Resident Medical Service for a neurosurgical consult. Members of Mr. Thomason's family arrived at Merle West at 22:05 on January 21, 2000. Mr. Thomason's condition was discussed with Mr. Thomason's mother and sister, and they were informed that Mr. Thomason was unlikely to survive. Mr. Thomason's family then agreed to give Mr. Thomason comfort measures to reduce Mr. Thomason's pain. Mr. Thomason passed away at 2:10 on January 22, 2000. (Id.).
13. Mr. Thomason's intracerebral hemorrhage was not caused by any of the circumstances of his lodging at the Klamath County Detention Center. The provision, or non-provision of Librium or Dilantin could not have caused his intracerebral hemorrhage. Transporting Mr. Thomason to an outside treatment facility at an earlier time would not have prevented the hemorrhage. Nothing in the detention center records, the depositions of the deputies, or any other records, suggests that the circumstances of Mr. Thomason's stay at the detention center could have been a cause of his intracerebral hemorrhage and death. (Aff. of Michael S. Narus).
14. In January, 2000, Dr. Charles Bury, M.D., and the Klamath Family Practice Center (KFPC) had an oral agreement to provide medical services to the detention center. Under that agreement, Dr. Bury, and the doctors at the KFPC were on-call with the detention center. Under this arrangement, officers at the detention center would contact the KFPC, and arrange to have prisoners treated by a physician at the KFPC. In addition to these on-call services, Dr. Bury visited the detention center once each week for sick-call, at which time he would treat and examine prisoners at the detention center. Dr. Bury acted as an agent of Klamath County in January, 2000, in providing medical services to the prisoners lodged at the detention center. (Aff. of Charles Bury, M.D.).
15. Dr. Bury had no contact whatsoever with Mr. Thomason while he was lodged in the detention center from January 16, 2000, through January 21, 2000. Mr. Thomason was not a patient of Dr. Bury's in January of 2000, and Dr. Bury did not treat or see Mr. Thomason in January of 2000. (Id.).
16. Dr. Bury signed the Klamath County Detention Center's Medical Standing Order 016. That standing order set forth the appropriate protocol for seizures related to alcohol withdrawal, and was consistent with the degree of care, skill, and diligence exercised by an ordinarily careful physician in the community of Klamath County, or in a similar community. (Aff. of Charles Bury, M.D., Aff. of Michael S. Narus, D.O. and Ex. J to Aff. of Montgomery).
17. Defendant Burkhart was the Klamath County Sheriff in January, 2000. Mr. Burkhart had no involvement with the events relating to Mr. Thomason from January 16, 2000, through January 22, 2000. Mr. Burkhart did not learn of any of these events until after Mr. Thomason had passed away on January 22, 2000. Mr. Burkhart had no involvement with the medical treatment given to Mr. Thomason at the detention center. Mr. Burkhart had no involvement in the decision to release and transport Mr. Thomason to Merle West on January 21, 2000. (Aff. of Carl Burkhart).
18. In January, 2000, Klamath County had no policy, custom, practice, or procedure of denying prisoners access to medical treatment at facilities located outside of the detention center, when the prisoner was in need of medical care and treatment at such a facility. Klamath County had no custom, practice, or procedure of denying prisoners medical care or treatment at the detention center, when the prisoner was in need of such medical care and treatment. The policy of Klamath County was to provide adequate medical treatment to all prisoners. If medical treatment could not be provided at the detention center, the policy of the County was to transport the prisoner to a facility where adequate medical treatment could be provided. In January, 2000, Klamath County had no policy of failing to transport prisoners in need of medical treatment to an appropriate treatment center. (Id.).
19. In January, 2000, Klamath County had no policy, custom, practice, or procedure of failing to provide adequate medical treatment within the Klamath County Detention Center. (Id.).
20. In January, 2000, Klamath County had no policy, custom, practice, or procedure of punishing individuals in need of medical treatment by withholding medical treatment for severe alcohol withdrawal symptoms. (Id.).
21. In January, 2000, Klamath County had no policy, custom, practice, or procedure of making light of, belittling, or laughing at requests for medical treatment by prisoners. (Id.).
22. In January, 2000, Klamath County had no policy, custom, practice, or procedure of exhibiting deliberate indifference, or any indifference to the medical needs of prisoners, whether their medical needs were serious or minor. (Id.).
23. In January, 2000, Klamath County had no policy, custom, practice, or procedure of refusing to provide medical treatment to prisoners in order to save the costs of medical treatment. (Aff. of Carl Burkhart).
24. In January, 2000, Klamath County had no policy, custom, practice, or procedure of failing to provide detoxification to persons arrested and lodged in the detention center, or of failing to utilize Merle West as a detoxification unit if it was needed. The policy of Klamath County was to provide adequate medical treatment to all prisoners, and to provide for detoxification if needed. If adequate treatment or detoxification could not be provided at the detention center, the policy of the County was to transport the prisoner to a facility where adequate medical treatment or detoxification could be provided. (Id.).
25. Mr. Burkhart never acted in any manner to deny Mr. Thomason medical treatment or to deprive him of his constitutional rights. Mr. Burkhart had no contact with Mr. Thomason during his lodging at the detention center from January 16, 2000, through January 21, 2000. As a result, he was not aware of any statements or requests by Mr. Thomason concerning medical treatment, and did not fail to pay heed or place belief in any such statements by Mr. Thomason. Mr. Burkhart did not, at any time, make light of Mr. Thomason's condition, laugh at or belittle Mr. Thomason. Mr. Burkhart never directed anyone to ignore any requests by Mr. Thomason for medical treatment, and never directed anyone to disbelieve any such requests. Mr. Burkhart never directed anyone to make light of any requests for treatment by Mr. Thomason, and never directed anyone to laugh at or belittle Mr. Thomason. (Id.).
26. Mr. Burkhart relied upon the detention facility's nurses and doctors to establish appropriate protocols and procedures for treating alcohol withdrawal symptoms. (Aff. of Carl Burkhart). The detention center's doctors and nurses were fully trained and qualified to handle those alcohol withdrawal issues, establish appropriate protocols, and instruct the detention center's officers in effectuating those protocols. (Id.).
27. Laughing at or belittling inmates is not any part of the tasks corrections officers at the detention center are hired to perform. (Ex. L to Aff. of Montgomery; Klamath County Corrections Officer Job Description).
Plaintiff submits the following response:
Defendants' Paragraph 6: Defendants fail to note other significant problems of alcohol withdrawal on Mr. Thomason's booking information form. For example, defendants failed to note that Mr. Thomason was noted to be taking medication for seizures, that he drinks a half a gallon of liquor daily, that he suffers delirium tremens when he quits drinking, and that it appeared he was withdrawing from alcohol or was under the influence of it at the time of his booking. It is also noted that he had had bloody stools. (See Exhibit G to Affidavit of Montgomery-Intake Medical Information Form).
Defendants object to this response stating that the medical intake form speaks for itself, and they otherwise deny the remainder of the facts. This objection is denied. The information set forth by plaintiff is located in the Medical Intake Form. The affidavit of Dr. Jacobsen has been stricken with regard to his testimony on causation of Mr. Thomason's death, and, therefore, this statement has been modified.
Dr. Jacobsen's affidavit provides in part that:
As of January, 2000 Stacey Allen Thomason was a 46 year old male who had a long term history of chronic alcoholism, including many physical complications related to his use of alcohol. He had a history of repeated episodes of severe alcohol withdrawal symptoms including delirium tremens and seizures. He had received medical treatment for alcohol withdrawal symptoms in the late 1980's while incarcerated at the Klamath County jail. He had received aggressive in-patient treatment from Merle West Medical Center on multiple occasions for alcohol related problems including withdrawal symptoms. These conditions, complications, and symptoms are serious medical conditions which require prompt competent medical care.
On January 16, 2000, Mr. Thomason was arrested for an outstanding warrant related to his calling 911 while intoxicated. He had been drinking heavily before his arrest and had a positive blood alcohol when booked into the Klamath County jail that date.
At the time of his arrest on January 16, 2000, it was highly medically probable that Mr. Thomason had a very high level of physical dependency to alcohol. It was highly medically probable that Mr. Thomason would be at a very high risk to experience severe alcohol withdrawal symptoms if he suddenly stopped drinking.
When he was incarcerated on January 16, 2000 at the Klamath County jail, he was subjected to a sudden removal of access to alcohol, and no substitute medication was provided to him. It is highly medically probably that Mr. Thomason's brain then started into a medical process described as acute alcohol withdrawal.
Between January 16, 2000 and January 21, 2000, Mr. Thomason would have progressed through various stages of alcohol withdrawal including minimal, moderate, severe and extreme while at the Klamath County jail. At every stage there would have been subjective symptoms and objective signs indicating a progressive alcohol withdrawal syndrome and need for medical evaluation and treatment. The alcohol withdrawal syndrome could have been interrupted at any time during the first 3 to 4 days if Mr. Thomason had received appropriate treatment, including the aggressive use of medications.
When Mr. Thomason was finally transferred to Merle West Medical Center on January 21, 2000, he was in an extreme stage of withdrawal. . . .
. . . Available records from the Klamath County jail describe readily observable signs consistent with progressive alcohol withdrawal. Statements from other inmates during Mr. Thomason's incarceration describe that staff at the Klamath County jail were aware of his deteriorating medical condition and yet took no action to remedy it. This behavior can be described as deliberately indifferent to Mr. Thomason's serious medical need. It is almost unbelievable that when Mr. Thomason was seen by Klamath County jail nurse John Hunt-Kelly at 6:30 a.m. on January 21, 2000, that his diagnosis was "ineffective coping individual situational."
When Mr. Thomason was arrested on January 16, 2000 and throughout his incarceration until transferred to Merle West Medical Center on January 21, 2000, nursing and medical care for Mr. Thomason was the responsibility of defendant Charles Bury, M.D., John Hunt-Kelly, R.N. (two year associate degree), Nancy Neeser, L.P.N (licensed practical nurse), and nonmedical staff of the Klamath County jail.
When Mr. Thomason was arrested on January 16, 2000, a Medical Intake information form was completed. This form contained many very important pieces of information that if reviewed and understood, should have resulted in the notification of a physician for a more careful evaluation and development of a treatment plan. . . .
Important information in this January 16, 2000 form included the following: "epilepsy/seizures"; "takes Dilantin for seizures"; "positive alcohol use history of ½ gallon daily"; appeared under the influence? — "yes"; what happens when quits? — "D.T." (Delirium Tremens — an advanced stage of alcohol withdrawal with a high death rate even with appropriate treatment); and "subject intoxicated upon arrival." There is no documentation that either Nurse Kelly or Nurse Neeser reviewed or took any action on this information.
Additional information was contained in the Klamath County jail records that indicated that Mr. Thomason was at an extremely high risk for severe alcohol withdrawal including on January 18, 2000 — "admits to drinking ½ gallon liquor per day."
Written inmate witness statements made reference to Mr. Thomason's medical condition in the days preceding his transfer to Merle West Medical Center. References from those statements included that Mr. Thomason was experiencing DT's, that he had been vomiting all over his jail cell, that he needed medical attention, and that "he asked guards and the nurse over and over again for his medication. He begged for it. He told them at least 30 times that I saw and heard for his medication or he would die." Three different witnesses described Mr. Thomas asking for medications.
On January 18, 2000, Ms. Neeser, L.P.N. requested past medical records from Merle West Medical Center. Records were received on January 19, 2000 at 0733 hours and included 11 pages from a recent hospitalization of Mr. Thomason at Merle West Medical Center from January 4, 2000 to January 6, 2000. These records documented a great deal of important medical information that if reviewed and understood should have resulted in the notification of a physician for a more complete evaluation and development of a treatment plan. . . .
References in the January 4, 2000 to January 6, 2000 Merle West Medical Center records included: "He has a long history of alcoholism"; "Patient states drank about one bottle of wine to avoid withdrawal seizures"; "Findings suggested of early cirrhosis"; "ETOH abuse with withdrawal seizures"; "Seizure history after ETOH"; alcohol use "2 fifths of whisky each day"; "History of seizures during ETOH withdrawal in the past"; "severe ETOH history and history of seizures when withdrawing"; "Alcohol abuse-began alcohol withdrawal prophylaxis." Mr. Thomason received aggressive treatment to prevent severe withdrawal symptoms during his January 4, 2000 to January 6, 2000 admission, including physician orders for Librium, 100 mg four times a day.
There is no documentation that the foregoing information was reviewed or acted on by either Mr. Hunt-Kelly, Ms. Neeser, or Dr. Bury.
Available records indicate that the first time Mr. Thomason was seen in the jail by any medical person was January 20, 2000 by Mr. Hunt-Kelly. On this date the medical observation sheet references Mr. Thomson having tremors in his extremities and his cell mate said that Mr. Thomason had had a seizure. Mr. Hunt-Kelly's impression was "ineffective coping individual, situational." No physical examination or measurement of vital signs was documented. Later in the morning of January 20, 2000, Mr. Thomason is reported to have said that he needed to go to the hospital because of continuing vomiting and shakes.
Because of inadequate documentation, it is not clear as to when or how much Librium was finally given to Mr. Thomason or even who dispensed this medication to him. It appears that 25 mg of Librium was given twice in the morning on January 20, 2000 and one additional dose of 25 mg on the morning of January 21, 2000. This amount of Librium is far below the doses needed to treat the severe alcohol withdrawal symptoms that were present in Mr. Thomason at this time. It appears that the Librium was given by non-nursing personnel in the jail. There is no evidence that Dr. Bury was ever notified of events leading up to the administration of low doses Librium on January 20, 2000 or January 21, 2000.
On January 21, 2000 at 1125 hours, Mr. Hunt-Kelly described Mr. Thomason as incoherent and unable to get up. At this time, emergency medical services were called; and Mr. Thomason was transported to the Merle West Medical Center emergency room.
When Mr. Thomason arrived at the emergency room, he was incoherent and noted to be clearly in delirium tremens. An initial blood pressure was markedly elevated. Laboratory studies were consistent with Mr. Thomason's not eating and having diarrhea and/or vomiting for some period of time prior to his transfer. . . .
It is my opinion that defendant, Dr. Bury, was the individual responsible for all decision making regarding medical care in the Klamath County jail by virtue of the fact that he signed the medical standing orders for the Klamath County jail on July 28, 1999 and co-signed by Captain John Lawson on September 9, 1999. Dr. Bury had been involved as the Klamath County jail doctor for about 20 years. As pertains to my opinions which follow, it is noteworthy that in his November 30, 2001 deposition, Dr. Bury recalled that Mr. John Hunt-Kelly was the jail nurse who probably drafted the medical standing orders and that it was just "happenstance" that he (Dr. Bury) signed these orders. It is my opinion that the medical standing orders are overly vague and lack specificity in directing medical evaluations and the formulation of treatment plans.
Plaintiff does not cite to any particular portion of Dr. Jacobsen's affidavit. Therefore, the court has set forth all the factual allegations contained in the affidavit that do not relate to causation of Mr. Thomason's death.
* * *
It is my opinion that the records from the Klamath County jail that describe Mr. Thomason's medical condition during his incarceration between January 16, 2000 and January 21, 2000 are filled with gross deficiencies of care which when combined constitute more than mere medical negligence and which demonstrate a deliberate indifference to Mr. Thomason's serious medical needs. There are multiple factors that appear to have been instrumental in allowing the progression of alcohol withdrawal symptoms in Mr. Thomason. . . .
These factors included:
a. Lack of medical involvement by Dr. Bury in making sure that the nursing staff at the Klamath County jail were following the intent of the medical standing orders; were competent in collecting information regarding the medical condition of incarcerated individuals; and would communicate with him on a regular basis so that he could make medical decisions regarding diagnosis and treatment. . . .;
b. Mr. Hunt-Kelly and/or Ms. Neeser not reviewing . . . information in Mr. Thomason's medical intake form and/or the records received on January 19, 2000 from Merle West Medical Center concerning Mr. Thomason and not reporting this information to Dr. Bury;
c. Mr. Hunt-Kelly and/or Ms. Neeser not documenting that they even saw Mr. Thomason until January 20, 2000 and at this time did not document even a manual physical examination including the collection of vital signs. Elevated blood pressure and pulse rate are evident in the earliest stages of alcohol withdrawal and are an extremely effective diagnostic tool;
d. Mr. Hunt-Kelly and/or Ms. Neeser not responding to statements by Mr. Thomason as reported by other inmates, that he needed medical care and medications;
e. Mr. Hunt-Kelly and/or Ms. Neeser not documenting that they ever talked with Dr. Bury about Mr. Thomason's medical condition even when Librium was given on January 20, 2000. There is no evidence that Dr. Bury even knew that Mr. Thomason had been transferred to Merle West Medical Center on January 21, 2000; and
f. Belated use of inadequate amounts of Librium when Mr. Thomason was already in advanced alcohol withdrawal without physician orders and probably given by jail staff with no medical qualifications.
* * *
It is my opinion that in the morning hours of January 20, 2000 Mr. Thomason's medical symptoms were sufficient to warrant Mr. Hunt-Kelly to initiate a medical evaluation, by contacting either Dr. Bury or the Merle West Medical Center emergency room.
* * *
(Jacobsen Affidavit at 3-11).
Defendants' Paragraph 9: This fact fails to note that the jail released Mr. Thomason on his own recognizance at the time he was transported to Merle West Medical Center, despite the fact that Mr. Thomason was unable to acknowledge his release or sign for it. (Affidavit of Werdell Exhibit 17-Lawson Depo. pages 15-19).
Defendants' Paragraph 13: The portions of Dr. Jacobsen's affidavit relating to causation of Mr. Thomason's death are stricken. Therefore, this response is not included.
Defendants' Paragraph 16: Klamath County Detention Center's medical standing orders do not set forth appropriate protocol for seizures related to alcohol withdrawal nor were they consistent with the degree of care, skill, and diligence exercised by ordinary careful physicians for treatment of alcohol withdrawal. (Affidavit of Gary Jacobsen).
Defendants' Paragraph 17 and paragraph 25: Sheriff Burkhart, as the Sheriff of Klamath County, is the Chief Executive Officer of the jail and is responsible for the custody and care of all pretrial detainees.
Defendants' object to plaintiff's responses arguing that these are legal conclusions. The court has modified the responses.
Defendants' Paragraph 18: According to the Affidavits of Dr. Gary Jacobsen and others, defendants repeatedly denied Mr. Thomason medical assistance. Dr. Jacobsen's Affidavit points out that the defendants' medical standing orders were inappropriate to treat detainees such as Mr. Thomason who were suffering from alcohol withdrawal. If the County had a policy to transport detainees to a facility where adequate medical treatment could be provided, the policy was inadequate because it delayed transport of detainees with serious medical needs while jail nurses failed to obtain appropriate medical care for detainees with serious medical needs. As the Affidavit of Dr. Gary Jacobsen points out, the standing medical orders relating to alcohol withdrawal and delirium tremens lacked specificity that would have required detainees with serious medical needs in that regard to be transported to an appropriate treatment center. In fact, management of detainees with alcohol withdrawal related seizures were to be managed by verifying the prisoner's medication with a physician or a health authority, ascertain when the prisoner's last dose was taken, treat any fever, administer Librium every two to four hours and Dilantin once a day, provide sweetened juices, and notify the health authority. (See Werdell Aff. Ex. 4 Medical Standing Order 16; Affidavit of Dr. Gary Jacobsen). The Affidavit of Dr. Gary Jacobsen points out that only some medication was provided belatedly and an insufficient dosage to competently manage Mr. Thomason's known alcohol withdrawal problem. It points out that the jail nurses never notified Dr. Bury or attempted to ascertain from Mr. Thomason upon booking when his last dose of medicine was taken. As Dr. Jacobsen points out, this delay and denial of treatment caused Mr. Thomason to go into an extreme state of alcohol withdrawal. . . . Medical Standing Order #1 states in part as well that "any prisoner under the influence of alcohol or drugs will not receive any medication until cleared by the facility nurse." (Exhibit 2 to Affidavit of Dr. Gary Jacobsen). Dr. Jacobsen's Affidavit points out that no nurse ever saw Mr. Thomason until the fifth day of his incarceration even though he was noted as under the influence on January 16, 2000, when he was booked and when it was noted that he required medications to control alcohol related seizures.
The portions of Dr. Jacobsen's affidavit relating to causation of Mr. Thomason's death are stricken.
Dr. Jacobsen's opinion regarding the competency of the jail nursing staff is excluded.
The portions of Dr. Jacobsen's affidavit relating to causation of Mr. Thomason's death are stricken.
Defendants object stating that the medical intake form speaks for itself. Plaintiff may properly extrapolate facts from the medical intake form. Therefore, this objection is overruled.
Plaintiff disputes defendants' paragraph 19 and 24, citing the affidavit of Dr. Jacobsen. Plaintiff disputes defendants' paragraphs 20, 21, and 22 citing the affidavits of Dr. Jacobsen, John Garcia, and Eric Anderson. Plaintiff does not cite to any particular part of the affidavits of Mr. Garcia or Mr. Anderson. Therefore, the court will set forth the factual allegations in their affidavits.
Mr. Garcia stated as follows:
I am currently incarcerated in Klamath County Jail. In the month of January, 2000, I was incarcerated at Klamath County Jail and was performing the duties of a trustee for the Klamath County Jail. I worked cleaning the cells of inmates. I cleaned out Mr. Stacey Thomason's cell. Mr. Thomason had vomited all over the floor and filled up the holes used to chain inmates to the floor. I had to wash and bleach three blankets full of vomit, remove cups and cups of vomit from Mr. Thomason's cell, and clean up the magazines that were in that area, because they were soaked with vomit as well.
After I had cleaned and bleached the cell, I asked the deputies where they had put Mr. Thomason and was told that he was moved to cell No. 7 because he was going through DTs.
(Garcia Affidavit at 1-2).
Mr. Anderson's affidavit states as follows:
On the 16th of January, 2000, I was arrested with Stacey Allen Thomason and placed in a holding cell with him at the Klamath County Jail. I remained in that cell with him until January 18, 2000.
While I was with Mr. Thomason in the jail in January 2000, Mr. Thomason asked the jail guards and the jail nurse over and over for his medication. He begged for it. He told them at least thirty times that he needed his medication or he would die. The deputies just laughed at him.
While I was in the same cell as Mr. Thomason, I also called out to several officers to come and help Mr. Thomason or he would die. When I asked for help, the deputies would laugh and say "We know what we are doing, we've had him here before." Mr. Thomason became so ill that he began shaking and convulsing so hard I was afraid he would injure his back. Still the officers refused to help Mr. Thomason.
The officers got tired of me calling out for them to help Mr. Thomason, and they moved me on the second day to a holding cell away from him. While I was in this cell, I continued to ask the jail guards to tell me how Mr. Thomason was doing. Their response was to laugh and say he was fine. I then asked John Garcia, an inmate/trustee who cleans the jail, to check on Mr. Thomason for me. Mr. Garcia told me that Mr. Thomason was so sick that he had vomited his insides out. His vomit filled 3 wool blankets, which were thrown away, all the magazines were used to clean it up, the holes in the ground, used to handcuff unruly prisoners, were filled with Mr. Thomason's vomit. Mr. Garcia told me that the jail guards had moved Mr. Thomason into a single drunk tank where they couldn't see or hear his cries for help.
Before I was transferred out of the cell with Mr. Thomason, he asked me to let people know how he was treated.
(Anderson Affidavit at 1-2).
Plaintiff disputes defendants' paragraph 23 citing to the Affidavit of Lee Werdell Exhibits 15-31. Plaintiff does not cite to any particular portion of these exhibits. These exhibits consist of: the depositions of Carl Burkhart, Dr. Bury, John Lawson, John Hunt-Kelly, Nancy Neeser, Marilyn Dougherty, Margo Gomez, Jeff Follose, Kerry Hitchcock, Audeliz Lugo, Gerald Walton, Linda Wheelock, Lewis Brightman, Brian Bryson, and Dan House, as well as an order and excerpt from the testimony of Carl Burkhart.
Plaintiff's response to paragraph 26 is excluded.
The court finds the following additional facts:
Dr. Narus testified at the hearing that:
There are multiple causes for an intracerebral hemorrhage. The most common cause is hypertension superimposed by chronic hypertension. Mr. Thomason had no prior history of hypertension. Chronic hypertension with superimposed hypertension and some other malformation may also cause an intracerebral hemorrhage. The only way to determine the cause of Mr. Thomason's intracerebral hemorrhage would be to do an autopsy of his brain. In 1/3 of the cases of intracerebral hemorrhages the cause is not known. He could not find any literature supporting the proposition that alcohol withdrawal causes intracerebral hemorrhages.
II. LEGAL STANDARDS
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a moving party is entitled to summary judgment as a matter of law "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 502 U.S. 994 (1991). In deciding a motion for summary judgment, the court must determine, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). The parties bear the burden of identifying the evidence that will facilitate the court's assessment. Id.
The moving party bears the initial burden of proof. See Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1435 (9th Cir.), cert. denied, 516 U.S. 987 (1995). The moving party meets this burden by identifying portions of the record on file which demonstrates the absence of any genuine issue of material fact. Id. "[T]he moving party . . . need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case." Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393 (4th Cir. 1994), cert. denied, 513 U.S. 1191 (1995) (citation omitted); See City of Mt. Pleasant, Iowa v. Associated Electric Co-op, Inc., 838 F.2d 268, 273-274 (8th Cir. 1988) (it is sufficient for the movant to argue that the record does not contain an issue of fact and to identify that part of the record that supports that assertion).
In assessing whether a party has met their burden, the court must view the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995). All reasonable inferences are drawn in favor of the nonmovant. Id.
If the moving party meets their burden, the burden shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816 (9th Cir. 1995), cert. denied, 517 U.S. 1167 (1996). The nonmoving party cannot carry their burden by relying solely on the facts alleged in their pleadings. Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994). Instead, their response, by affidavits or as otherwise provided in Rule 56, must designate specific facts showing there is a genuine issue for trial. Id.
In addition to the requirements of Fed.R.Civ.P. 56(e), parties must also comply with the requirements set forth in Local Rule 56.1. Local Rule 56.1(b) provides that opposition to a motion for summary judgment must include a response to the separate concise statement that responds to each numbered paragraph of the moving party's facts by either accepting or denying each fact or articulating opposition to the moving party's contention or interpretation of the fact.
Local Rule 56.1 sets forth the requirements for a party's concise statement of facts, and requires a citation to particular evidence supporting a party's statement, acceptance, or the denial of a material fact. Local Rule 56.1(e) provides in part that "the court has no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties."
Local Rule 56.1(f) provides that material facts set forth in a concise statement of the moving party or in response to the moving party's concise statement that are not specifically denied or otherwise controverted by a separate concise statement of the opposing party will be deemed admitted. The court is not required to search the record to determine whether any factual disputes exists, and an opposing party's failure to designate and reference triable facts, in light of the requirements of Fed.R.Civ.P. 56(e), Local Rule 56.1, and governing precedent may be fatal to the opposition. See Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988).
III. DISCUSSION
Defendants move for summary judgment based on the following arguments:
1) plaintiff's Fourth Amendment claim fails to state a claim for relief;
2) plaintiff's Eighth Amendment claim fails to state a claim for relief;
3) plaintiff's § 1983 claim against defendant Burkhart fails because he did not establish any of the alleged unconstitutional policies, the alleged policies were not the cause of Mr. Thomason's intracerebral hemorrhage, he did not commit any of the acts alleged, and he cannot be held vicariously liable;
4) plaintiff's § 1983 claims against defendant Klamath County fail because none of the alleged policies or practices existed, the alleged policies and practices were not the cause of Mr. Thomason's intracerebral hemorrhage, and none of the County's employees committed any constitutional violations;
5) plaintiff's wrongful death action against defendants Klamath County and Burkhart fails because defendant Burkhart as an agent of Klamath County is immune from liability, the alleged acts of negligence could not have caused Mr. Thomason's death, defendant Burkhart was not negligent in any of the ways alleged by plaintiff, and the decisions about the education provided to detention center deputies are policy decisions which give rise to discretionary immunity;
6) plaintiff's wrongful death action against defendants Bury and Klamath Family Practice Center, P.C. fails because defendant Bury is immune from suit as an agent of the County under the Oregon Tort Claims Act (OTCA), the acts alleged did not cause Mr. Thomason's death, defendant Bury was not negligent in any of the ways alleged, and the creation of the detention center's standing orders was a discretionary act for which Klamath County is immune under the OTCA;
7) plaintiff's claim for intentional infliction of emotional distress (IIED) fails because it fails to state a claim against any of the defendants, it is barred by the two year statute of limitations, there is no evidence to support the claim, and the acts alleged are outside the scope of employment which precludes County liability.
In response, plaintiff argues that:
1) plaintiff concedes that a § 1983 claim for lack of medical care does not arise under the Fourth or the Eighth Amendments;
2) the evidence demonstrates that the defendants showed deliberate indifference to Mr. Thomason's serious medical needs and that the delay and denial of medical care caused his death;
3)whether defendant Burkhart knew or should have known of the defective polices that would lead to an injury is a jury question the denial or delay of medical treatment due to budget constraints constitutes deliberate indifference — the Sheriff's Department maintained other unconstitutional policies such as failure to have appropriate standing medical orders, failure to train and hire competent medical staff, ignoring serious medical needs, and allowing untrained people to diagnose and treat serious medical disorders;
4) the affidavit of Dr. Jacobsen creates a genuine issue of fact regarding whether the defendants' policies caused Mr. Thomason's death;
5) defendant Burkhart may be held personally liable by setting the policies or by ignoring unconstitutional practices at the jail;
6) there is sufficient evidence to demonstrate a policy of deliberate indifference to serious medical needs lead to Mr. Thomason's death;
7) the affidavits of Mr. Anderson and Mr. Garcia show that County deputies acted with deliberate indifference and that there actions caused Mr. Thomason harm;
8) plaintiff concedes that defendants Burkhart, Bury, and Klamath Family Practice Center, in the event they are deemed agents and employees of the County, may not be sued individually if the defendants were acting within the scope of their employment, but they may still be held liable under § 1983 for deliberate indifference;
9) plaintiff should prevail on the wrongful death claims because the affidavit of Dr. Jacobsen proves there was no medical examination or treatment of Mr. Thomason, inmate witnesses prove deputies failed to respond to the requests of Mr. Thomason for medical treatment, deputies and nurses failed to consider Mr. Thomason's known withdrawal symptoms could cause physical damage or death, deputies and nurses failed to adequately inform themselves of the dangers of alcohol withdrawal, and defendant Burkhart failed to provide a method of treatment and examination for medical problems of prisoners consistent with Judge Hogan's order;
10) discretionary immunity does not apply to the provision of medical care for pretrial detainees;
11) plaintiff agrees that defendants Bury and Klamath Family practice are agents of the County acting within the course and scope of their employment and may not be individually named on state law claims — plaintiff moves to amend to name the County on the state law claims and name the individuals in the § 1983 claim;
12) Dr. Jacobsen's affidavit creates material issues of fact regarding Mr. Thomason's cause of death;
13) Dr. Jacobsen's affidavit establishes that the standing orders were insufficient;
14) defendant Bury was negligent in failing to evaluate Mr. Thomason;
15) Dr. Jacobsen establishes that one of the reasons that Mr. Thomason dies was that defendant Bury allowed incompetent nursing and non-nursing personnel to diagnose and treat Mr. Thomason;
16) the creation of the medical standing order is not protected by immunity;
17) the County is the proper defendant for plaintiff's IIED claim and the affidavits of Mr. Anderson and Mr. Garcia support such a claim;
18) plaintiff's original complaint contained the factual basis for an IIED claim and the complaint was filed before the two year statute of limitations; and
19) deputies were acting within the scope of their employment when they refused to give Mr. Thomason medical treatment and inflicted emotional distress on him.
In reply, defendants argue that:
1) there is no reliable scientific evidence linking alcohol withdrawal to Mr. Thomason's intracerebral hemorrhage;
2) a mere possibility of a causal link is insufficient;
3) a causal connection does not exist with respect to defendant Burkhart;
4) plaintiff failed to plead a failure to train claim;
5) Dr. Jacobsen's affidavit is insufficient to create an issue of fact regarding failure to train and deliberate indifference;
6) there is no evidence that any alleged cost-cutting measures caused Mr. Thomason's death or otherwise denied him medical treatment;
7) defendant Burkhart is immune from plaintiff's wrongful death claim under the OTCA;
8) discretionary immunity applies to plaintiff's state tort claims;
9) defendants Burry and Klamath Family Practice center are immune under the OTCA; and
10) the alleged conduct be the deputies that forms the basis of the IIED claim did not occur within the scope of their employment allegations of negligent or indifferent denial of medical treatment do not support an IIED claim.
Causation of Mr. Thomason's Death
Plaintiff brings state law claims for wrongful death alleging the negligence of defendants Klamath County, Carl Burkhart, Charles Bury, and Klamath Family Practice Center, P.C., in failing to provide adequate medical care caused Mr. Thomason's death. Under Oregon law, in a negligence action, a defendant is liable for a plaintiff's injuries only when the defendant's conduct was a substantial factor in causing those injuries.Brennen v. City of Eugene, 285 Or. 401, 413 (1979). When there are two or more possible causes of an injury and the defendant is responsible for only one, the plaintiff must show that the alleged injury was caused in whole or in part by the cause for which the defendant is responsible, and if it is just as likely that the injury resulted from one cause or the other, the plaintiff cannot prevail. Coyne v. Cirilli, 45 Or. App. 177 (1980).
Plaintiff brings a § 1983 claim against defendants Klamath County and Carl Burkhart alleging that 1) defendants failure to provide Mr. Thomason with adequate medical treatment for severe alcohol withdrawal during his confinement in the Klamath County Jail caused Mr. Thomason severe physical and emotional distress prior to his becoming unconscious, and 2) that if defendants had provided adequate medical treatment this would have prevented the stroke and brain hemorrhage which lead to Mr. Thomason's death. To hold the defendants liable for a constitutional violation under § 1983, plaintiff must prove, in part, that the defendants' conduct was the cause in fact and proximate cause of the plaintiff's injuries. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), cert. denied, 520 U.S. 1117 (1997); See City of Canton v. Harris, 489 U.S. 378 (1989).
The undisputed facts shows that:
Mr. Thomason's intracerebral hemorrhage was not caused by any of the circumstances of his lodging at the jail. The provision or non-provision of Lithium or Dilantin did not cause Mr. Thomason's intracerebral hemorrhage. Transporting Mr. Thomason to an outside treatment facility at an earlier time would not have prevented his intracerebral hemorrhage. There are many different causes of intracerebral hemorrhages. The only way to determine the cause of Mr. Thomason's intracerebral hemorrhage would be to do a brain autopsy. The court finds that the undisputed facts establish that defendants alleged failure to provide medical care to Mr. Thomason did not cause his intracerebral hemorrhage and death. Therefore, defendants are entitled to summary judgment on the second part of plaintiff's § 1983 claim and on all plaintiff's wrongful death claims.
§ 1983 Claim for Failure to Provide Adequate Medical Care Prior to Mr. Thomason Becoming Unconscious
The first portion of plaintiff's § 1983 claim against defendants Klamath County and Carl Burkhart alleges that defendants failure to provide Mr. Thomason with adequate medical treatment for severe alcohol withdrawal during his confinement in the Klamath County Jail caused Mr. Thomason severe physical and emotional distress prior to him becoming unconscious. Plaintiff concedes that this claim is based on the Fourteenth Amendment.
In response to defendants arguments, plaintiff presents evidence that the County and Burkhart had a policy of failing to train personnel at the jail. Plaintiff did not plead this theory, and the court finds that the defendants would be prejudiced if plaintiff were permitted to pursue this theory. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1291 (9th Cir. 2000), cert. denied, 533 U.S. 950 (2001). Therefore, the court will not consider this evidence in ruling on the motion for summary judgment.
Defendants Burkhart and Klamath County move for summary judgment on this claim arguing that Burkhart did not establish any policies or practices alleged by plaintiff, the County had constitutional policies in place, Burkhart did not commit any of the acts alleged by plaintiff and he cannot be held vicariously liable, plaintiff cannot establish the existence of an unconstitutional policy or practice, there is no evidence that the deputies acted with deliberate indifference, the budgetary concerns expressed to the staff by Captain Lawson cannot be used to hold Burkhart liable, there is no evidence that there was a policy of knowingly denying treatment to save costs, the failure to implement Judge Hogan's order does not constitute deliberate indifference as Burkhart relied upon the advice of counsel not to implement that order, and Burkhart is entitled to qualified immunity.
Supervisory Liability
A supervisor, who does not personally participate in the constitutional violation, may be held liable under § 1983 if the supervisor implements
"a policy that is so deficient that the policy itself is a repudiation of constitutional rights and is the moving force behind the constitutional violation. . . . An official policy is:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [government entity] . . . or by an official whom the [entity] ha[s] delegated policy-making authority; or
2. A persistent, widespread practice of . . . officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents [the entity's] policy.Cuzzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 289 (5th Cir. 2002).
Municipal Liability
Municipalities are not liable under respondeat superior principles for constitutional violations of their employees, simply because of the employment relationship. Monell v. New York City Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 692-694 (1978). Municipal liability results "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. . . ." Id. at 694;Mateyko v. Felix, 924 F.2d 824, 826 (9th Cir.), cert. denied, 502 U.S. 814 (1991).
As a prerequisite to establishing municipal liability under section 1983, a plaintiff must prove one of three conditions.Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (citation omitted), cert. denied, 520 U.S. 1117 (1997). One, that a municipal employee committed the alleged constitutional violation pursuant to a formal governmental policy or a long standing practice or custom which constitutes the standard operating procedure of the municipal entity. Id. Any long standing practice or custom must be so persistent and widespread that it constitutes a permanent and well settled policy. Id. Such a long standing practice or custom cannot be based on isolated or sporadic incidents, but must be based on practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy. Id.
Two, "that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official government policy. Whether a particular official has final policy making authority is a question of state law." Id.
Third, a plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it. Id. To establish ratification, the plaintiff must show that an official with responsibility for establishing policy with respect to the subject matter in question made "a deliberate choice to follow a course of action . . . from among various alternatives . . .".Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992) (citations omitted), cert. denied, 510 U.S. 932 (1993).
The existence of a policy alone is insufficient to trigger municipal liability. City of Canton, 489 U.S. at 388-389. The plaintiff must also demonstrate that the policy evidences deliberate indifference as to constitutional rights. Id. at 389. This occurs when the need for more or different action is so obvious, and the inadequacy of the procedures so likely to result in the violation of constitutional rights, that the policymakers can reasonably be said to have been deliberately indifferent to the need. Id. at 390. Whether a local government entity has displayed deliberate indifference is generally a question for the jury. Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (citation omitted).
Municipal liability results only when a policy or custom is fairly attributable to the municipality as its own, and is the moving force behind the particular constitutional violation.See Monell, 486 U.S. at 683; Polk County v. Dodson, 454 U.S. 312 (1981). There must be a direct causal link between the policy or custom and the alleged constitutional violation. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). So long as the causal link is not too tenuous, the question of whether the municipal policy or custom caused the constitutional deprivation should be left to the jury. Bielevicz v. Dubinon, 915 F.2d 845, 851 (3rd Cir. 1991) (citations omitted).
Plaintiff has presented evidence that:
Mr. Thomason had serious medical conditions and needs during his incarceration. The jail staff, including the deputies and nurses, were aware of Mr. Thomason's serious medical conditions and needs. Mr. Thomason was taking Dilantin for seizures and suffered from dts when withdrawing from alcohol. Mr. Thomason was intoxicated at the time of booking. Deputies and nurses on duty during Mr. Thomason's incarceration knew that he was suffering from dts, vomiting, and other symptoms associated with alcohol withdrawal. They were also aware that Mr. Thomason's condition was deteriorating. Mr. Thomason's records showed a history of complications with alcohol withdrawal. Jail staff had access to Mr. Thomason's records from a previous incarceration as well as records from his hospitalization and treatment for alcohol withdrawal at Merle West Medical Center. Mr. Thomason also made the jail staff aware of his need for medication and medical treatment. Other inmates made the jail staff aware of Mr. Thomason's need for medical treatment and that he had suffered a seizure.
Mr. Thomason was not given any medication until four days after his arrival at the jail, in violation of the jail's medical standing order. When Mr. Thomason was given medication, the amount was inadequate, in violation of the jail's medical standing order. When Mr. Thomason requested medication and requested to go to the hospital these requests were ignored by jail staff, and deputies laughed at Mr. Thomason's request. Deputies placed Mr. Thomason in an isolated cell so they could not hear his cries for help. Mr. Thomason was not examined by jail staff when he was booked or after another inmate informed the nurse that Mr. Thomason had a seizure. Nurses did not contact Dr. Bury or the hospital after they were informed that Mr. Thomason had a seizure. After receiving Mr. Thomason's hospital records, the nursing staff did not contact Dr. Bury to do a medical examination and form a treatment plan. Mr. Thomason was seen for the first time by a nurse in the jail on January 20. There is no record that a physical examination was done or that vital signs were documented. There is no evidence that Dr. Bury was ever contacted regarding Mr. Thomason's condition. The jail staff failed to follow medical standing orders. Mr. Thomason was not evaluated upon booking.
It was the practice at the jail to only give medication at the request of the inmates, in violation of the medical standing order. Sheriff Burkhart was in charge of the jail, including the provision of medical treatment to inmates. Sheriff Burkhart approved the jail budgets which had a fixed amount for medical costs. Medical costs at the jail were out of control and the jail had a practice of releasing detainees to save medical costs. Sheriff Burkhart was concerned that he could be held personally financially liable for going over budget. The jail preferred not to send detainees to Bury's office, but to have them seen at the jail if it was not an emergency. Nurses were encouraged not to make any more outside contacts then necessary to stay within the budget. Treatment by the nurses did not impact the budget. Budget constraints were a concern of the jail administration as far as medications were concerned. Nurse Hunt-Kelly was questioned about whether medications were necessary. The administration was "on" nurse Hunt-Kelly about medication costs. When Mr. Thomason became unresponsive, the jail staff signed a form releasing Mr. Thomason on his own recognizance before he was transported to the hospital. The County Jail has had problems in the past regarding the provision of medical care to detainees as evidenced by Judge Hogan's order and the Lecomte suit. Burkhart did not believe that Judge Hogan's order regarding the provision of medical care applied to the new jail.
Mr. Thomason's alcohol withdrawal syndrome could have been interrupted any time during the first 3 or 4 days if Mr. Thomason had received appropriate treatment, including aggressive use of medications. Appropriate medical treatment would have prevented the progression of Mr. Thomason's alcohol withdrawal symptoms.
The court finds that plaintiff has presented sufficient evidence to create issues of facts regarding whether defendant's acted with deliberate indifference toward Mr. Thomason's serious medical needs, whether defendants established a policy of withholding medication for budgetary reasons, whether such a policy, if it existed, constituted deliberate indifference toward Mr. Thomason's constitutional rights, and whether the alleged policy caused a violation fo Mr. Thomason's constitutional rights. Therefore, defendants' motion for summary judgment on the remaining part of plaintiff's claim is denied.
Qualified Immunity
Qualified immunity shields government agents from suit for damages if a reasonable official could have believed that his or her conduct was lawful, in light of clearly established law and the information possessed by the official. Anderson v. Creighton, 483 U.S. 635, 637-39, 641 (1987); Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam). This standard shields all government officials except those who are either plainly incompetent or who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341 (1986). To determine if a defendant is entitled to qualified immunity, the court employs the sequential analysis set forth by the Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001).
First, the court must ask whether, taken in the light most favorable to the plaintiff, do the facts alleged by the plaintiff establish a constitutional violation. Saucier, 533 U.S. at 201;Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir. 2002) (en banc). If no constitutional right would have been violated under the facts alleged, then the analysis ends. Saucier, 533 U.S. at 201.
If a violation could be established under the facts alleged, the court will then consider whether the right was clearly established. Saucier, 533 U.S. at 201; Robinson, 278 F.3d at 1013. This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition . . .".Id. The court must determine whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. at 202. If the law does not put an officer on notice that his conduct was clearly unlawful, summary judgment based on qualified immunity is appropriate. Id.
Whether an official protected by qualified immunity may be held liable for allegedly unlawful actions depends on the objective legal reasonableness of the actions, assessed in the light of the clearly established law at the time. Anderson, 483 U.S. at 639;Floyd v. Laws, 929 F.2d 1390, 1393 (9th Cir. 1991). As long as the defendant could reasonably have thought his action was consistent with the rights he was alleged to have violated, the defendant is entitled to qualified immunity. Anderson, 483 U.S. at 638.
Plaintiff has the burden of showing that the defendant violated clearly established constitutional rights. Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983). Since the immunity is immunity from suit, the determination is to be made at the earliest possible stage in litigation. Harlow, 457 U.S. at 818;Anderson, 483 U.S. at 646, n. 6.
The standard requires a two-part analysis: (1) was the law governing the official's conduct clearly established; and (2) under that law, could a reasonable official have believed the conduct was lawful. Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). Both questions are to be decided by the court. Act Up!, 988 F.2d at 873; Chapman v. Nichols, 989 F.2d 393, 398 (10th Cir. 1993).
To determine the clearly established law at the time of the alleged conduct, first requires a review of the precedent in the Ninth Circuit and the United States Supreme Court. Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 490 (9th Cir. 1986). In the absence of binding precedent, the court may review other decisional law. Id. Government officials are not held to the standards of legal scholarship associated with law professors and academicians. Id.; Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir. 1986), cert. denied, 483 U.S. 1020 (1987).
The contours of the right allegedly violated must be sufficiently clear so that a reasonable official would understand that his or her conduct violated constitutional rights, and the right allegedly violated must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful. Gooden v. Howard County, Md., 954 F.2d 960, 968 (4th Cir. 1992). (citation omitted). This does not require that the very action in question has been previously held unlawful, but the unlawfulness of the official's conduct "must be apparent" in light of the law existing at the time of the conduct. Anderson, 483 U.S. at 640. Even officers who "reasonably" but mistakenly conclude their conduct was lawful are entitled to immunity. Id. at 641; Hunter, 112 S.Ct. at 595.
At the time of this incident, it was clearly established that a pretrial detainee had a constitutional right to medical treatment. Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003). It was also clearly established that the denial or delay of medical treatment for a prisoner's serious medical condition constitutes deliberate indifference in violation of the Eighth and/or Fourteenth Amendment. See Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). An individual will be held liable if he is aware of and disregards a substantial risk of harm to the detainee. Farmer v. Brennan, 511 U.S. 825, 847 (1994).
The court relies on the same evidence in finding that there are issues of facts regarding whether defendant Burkhart was deliberately indifferent to Mr. Thomason's serious medical needs, whether he put in place a policy of denying or delaying medical care to detainees in violation of the medical standing orders, and whether Burkhart knew that there was a substantial risk of harm to Mr. Thomason in denying or delaying treatment or in providing inadequate treatment. Therefore, defendants' motion based on qualified immunity is denied. See Lolli v. County of Orange, 351 F.3d 410 (9th Cir. 2003).
IIED Claim
Plaintiff alleges that the actions of the deputy sheriffs in the Klamath County Jail, in denying Mr. Thomason medical treatment and in making light of his condition and laughing and belittling him, were done for the purpose of causing him extreme emotional distress and did in fact cause him extreme emotional distress prior to his becoming unconscious.
Defendants argue that plaintiff's claim should be dismissed because it was never brought against the County, but the individually named deputies who are no longer parties, and that any attempt to now name the County as a defendant would be barred by the statute of limitations. The court finds these arguments without merit. Plaintiffs original complaint named the County as a defendant and specifically alleged that the acts of the deputies were committed within the course and scope of their employment and done pursuant to County policies. (Complaint ¶¶ 1, 3, 12, 14, 20-22). Plaintiff's third amended complaint contains similar allegations naming the County as a defendant and alleging that the deputies were acting pursuant to County policies. (Third Amended Complaint ¶¶ 1, 3, 12, 14, 31-33). It is clear, based on the allegations in the complaint, that the County was a defendant to this claim.
Even if it was found that the County was not named as a defendant, the court finds that an amendment to name the County as defendant would relate back and would not be barred by the statute of limitations. Rule 15(c) governs the relation back of amendments. Fed.R.Civ.P. 15(c). Under this rule, an amendment which changes the party or the naming of the party will relate back to the date of the original pleading when:
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . .
(3) . . . within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by the amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
"Notice of the institution of the lawsuit required by Rule 15(c) need not be formal." Swartz v. Gold Dust Casino, Inc., 91 F.R.D. 543, 547 (D.Nev. 1981). In cases where there is "sufficient community interest" between the originally named party and the new party this interest justifies imputing knowledge of the action from the former to the latter. G.F. Co. v. Pan Ocean Shipping Co., Ltd., 23 F.3d 1498, 1502-1503 (9th Cir. 1994). Rule 15(c)'s notice requirement is satisfied where "the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other." Id. at 1503.
Rule 15(c) requires that the new defendant should have known that, but for a mistake concerning identity, the action would have been brought against him. "[S]uch a mistake exists whenever a party who may be liable for the actionable conduct alleged in the Complaint was omitted as a party defendant." Swartz, 91 F.R.D. at 547.
When the omission of the defendant is a conscious choice in strategy, the amended complaint adding that party as a new defendant will not relate back. Louisiana-Pacific Corp. v. Asarco, Inc., 5 F.3d 431, 434-435 (9th Cir. 1993). However, where the omission is due to inadvertence rather than strategy, the amendment will relate back. G.F. Co., 23 F.3d at 1504.
In this case, the IIED claim arises out of the same conduct as the original pleading. It is also clear that the County knew or should have known, under the Oregon Tort Claims Act, that it was the proper defendant to this claim. The County had notice of this claim from the beginning of the action. Therefore, any amendment would relate back and not be barred by the statute of limitations.
Defendants argue that the conduct by the deputies, as alleged, does not constitute an extraordinary transgression of the bounds of socially tolerable conduct.
Whether the conduct alleged is sufficiently extreme or outrageous to be actionable is a fact-specific inquiry, one to be made on a case-by-case basis considering the totality of the circumstances. Lanthrope-Olson v. Dept. of Transportation, 128 Or. App. 405, 408, 876 P.2d 345 (19994). In Rosenthal v. Erven, 172 Or. App. 20, 23-23, 17 P.3d 558 (2001), we described some of the factors potentially relevant to that inquiry:
The Restatement (Second) of Torts and treatises use terms such as outrageous and extreme to describe conduct actionable as IIED, but the facts of decided cases convey more than adjectives do to guide our analysis of this element. Various factors bear upon the offensiveness of the conduct, including whether a special relationship exists between the defendant and the plaintiff, such as that of physician-patient, counselor-client, or common carrier-passenger. . . . Other factors include whether the conduct was undertaken for an ulterior purpose or to take advantage of an unusually vulnerable individual. . . . The setting in which the allegedly outrageous conduct occurs — for example, in a public venue or within the employment context — also can bear on the degree of offensiveness of the conduct. . . .
The relationship between the parties has particular bearing on potential characterization of the conduct as extreme and outrageous. That is so because a defendant's position or role vis-a-vis a plaintiff may be one that imposes on the defendant a greater obligation to refrain from subjecting the victim to abuse, fright, or shock than would be true in arm's length encounters among strangers. . . .Delaney v. Clifton, 180 Or. App. 119, 130-131, review denied, 334 Or. 631 (2002).
Plaintiff has presented the following evidence in support of the IIED claim:
Mr. Thomason had a positive blood alcohol when he was booked into the jail. Jail records showed that Mr. Thomason was taking medication for seizures and that he suffered DTs when withdrawing from alcohol. Jail records showed Mr. Thomason drank a large quantity of alcohol daily prior to his incarceration. When Mr. Thomason was booked into jail he had begun the process of severe alcohol withdrawal. Deputies were aware that Mr. Thomason was going thought dts and that his condition was deteriorating yet they did not give Mr, Thomason medical treatment. Deputies were aware that Mr. Thomason was vomiting all over his jail cell, that he was having tremors in his extremities, and that he had a seizure, and despite this did not give Mr. Thomason medical treatment. Mr. Thomason repeatedly requested that he be given medication and said that he would die. Mr. Thomason begged for his medication. In response deputies laughed at him and did not give him medication. Mr. Thomason requested to be taken to the hospital, but he was not taken there until he became non-responsive. Deputies moved Mr. Thomason to a single drunk tank where they couldn't see him and couldn't hear his cries for help.
The court finds that a special relationship existed in this case between the deputies and Mr. Thomason, a pretrial detainee. The deputies were charged with Mr. Thomason's care, including his medical care. Mr. Thomason was totally dependent upon the deputies for all his basic necessities, including medical treatment. Laughing at an inmate's request for medication, refusing his requests for medical treatment when the detainee is suffering and their condition is deteriorating, as well as isolating the detainee so his cries for help cannot be heard is outrageous and beyond the bounds of socially tolerable conduct.
Defendants argue that the actions of the deputies were committed outside the scope of their employment because the acts were not the type the deputies were hired to perform and did not serve the interest of the County, relying on Vinsonhaler v. Quantum Residential Corp., 189 Or. App. 1 (2003). In determining whether an employee was acting within the course and scope of his employment when he committed an intentional tort,
the issue is not whether the employee acted in the employer's interests when the employee committed the offensive acts themselves or whether those were the kind of acts that the employer hired the employee to perform.
Such circumstances rarely will occur and are not, in any event, necessary to vicarious liability. Rather, the focus properly is directed at whether . . . [there are sufficient facts from which a jury could infer] the employee's conduct that was within the scope of the employee's employment arguably resulted in the acts that caused the plaintiff's injury.
The essential point is that the performance of the employee's duties must be a necessary precursor to the misconduct and that the misconduct must be a direct outgrowth of, and have been engendered by, conduct that was within the scope of the employee's employment. It is not necessary that the misconduct itself be of the kind that the employer hired the employee to perform.Barrington v. Sandberg, 164 Or. App. 292, 295 (1999).
Plaintiff has presented evidence that Mr. Thomason, while in the jail, was under the care of the deputies. Part of their duties was to provide medical care to the detainees. In the performance of their duties they came into contact with Mr. Thomason, who was suffering from dts, vomiting, and other alcohol withdrawal related symptoms. During the performance of their duties Mr. Thomason requested that the deputies provide him with his medication. In response to this request, the deputies allegedly belittled and laughed at Mr. Thomason, and in response to his cries for help, placed him in an isolated cell where his cries could not be heard.
The court finds that plaintiff has presented sufficient evidence to permit the jury to infer that the deputies alleged outrageous conduct was an outgrowth of the exercise of the deputies employment duties, and therefore, hold the County vicariously liable. See Barrington v. Sandberg, 164 Or. App. 292 (1999); See also Bray v. American Property Management Corp., 164 Or. App. 134, review denied, 330 Or. 331 (2000);See also Vandoloah v. AMF Bowling Products, Inc., 2001 WL 34050111 (D.Or.). The court finds this case distinguishable fromVinsonhaler. In that case, there was no evidence that the employee engaged in conduct of any sort that was intended to serve the employer and that the conduct resulted in the sexual harassment. Vinsonhaler, 189 Or. App. at 6. Defendants' motion for summary judgment on plaintiff's IIED claim is denied.
IV. ORDER
Based on the foregoing, it is ordered that defendant's motion to exclude the affidavit testimony of Dr. Jacobsen regarding the causation of Mr. Thomason's death and training of jail nurses is granted and defendant's motion for summary judgment (#73) is granted in part and denied in part.