Opinion
Case No. CV 20-06016 DMG (KSx)
2023-03-03
Jessica FEAO, et al., Plaintiffs, v. Felicia L. PONCE, et al., Defendants.
Jade Smith-Williams, Leslie A. Brueckner, Todd A. Walburg, Bailey and Glasser LLP, Oakland, CA, for Plaintiffs. Jennifer R. Jacobs, AUSA - Office of U.S. Attorney, Los Angeles, CA, for Defendants Felicia L. Ponce, James Pelton, Evelyn Castro, Redentor Cornejo, The United States.
Jade Smith-Williams, Leslie A. Brueckner, Todd A. Walburg, Bailey and Glasser LLP, Oakland, CA, for Plaintiffs. Jennifer R. Jacobs, AUSA - Office of U.S. Attorney, Los Angeles, CA, for Defendants Felicia L. Ponce, James Pelton, Evelyn Castro, Redentor Cornejo, The United States. ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR JUDGMENT ON THE PLEADINGS [65] DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
Before the Court is a Motion for Summary Judgment or Judgment on the Pleadings filed by Defendants Felicia L. Ponce, James Pelton, M.D., and United States of America. [Doc. # 65 ("MSJ").] The MSJ is fully briefed. [Doc. ## 66 ("Opp."), 68 ("Reply").] For the following reasons, the Court GRANTS in part and DENIES in part Defendants' MSJ.
I.
FACTUAL HISTORY
A. Sepasitiano Feao's Surgery and Sentencing
The material facts in this case are mostly undisputed. In 2010, Sepasitiano Feao received a heart transplant at California Pacific Medical Center ("CPMC") in San Francisco. SUF 15, 295, 297. A person who receives a heart transplant has a serious condition, which requires ongoing monitoring, testing, referrals to specialists, and medication. SUF 295. On November 14, 2016, Feao had his annual post-transplant evaluation by Dr. Michael Pham, a member of his care team at CPMC, who noted that Feao's "post-transplant course has been fairly unremarkable." Feao had "known cardiac allograft vasculopathy with mild disease in the proximal and mid right coronary artery," but was asymptomatic and doing well. Feao played basketball and baseball, and while he felt "slightly winded" when very active, this did not limit his activities. Dr. Pham recommended:
The record in this action also occasionally refers to Feao as "Arnold."
The summary of the facts is undisputed, unless otherwise stated. Facts are drawn from Defendants' Statement of Undisputed Facts ("SUF"), as set forth with their Reply. [Doc. # 68-5.]
The parties dispute certain facts only on the basis of objections to the opposing side's evidence. If those objections are overruled, the Court will treat those facts as undisputed for purposes of this motion.
The Court has reviewed the parties' evidentiary objections. To the extent the Court does not address any of them, it is because the Court did not rely on the objected-to evidence in reaching its ruling. Any objections to such evidence are OVERRULED as moot.
• changes to Feao's transplant immunosuppression medications,
• twice-yearly dermatology and dental evaluations, and
• patient education regarding:
SUF 19-22. Dr. Pham's note also stated "Patient will return to clinic in 6 months or earlier as needed." SUF 305.• medication dosing and side effects, and
• the signs and symptoms of cardiac rejection.
On July 22, 2016, Feao was sentenced to 36 months of incarceration after being found guilty of possession with intent to distribute methamphetamines. SUF 17. On February 14, 2017, he was transferred to the Bureau of Prisons ("BOP") Federal Correctional Institution at Terminal Island, California ("FCI Terminal Island") from Santa Rita Jail in Alameda County, California, where he had been incarcerated since at least February 2016. SUF 16, 26, 296. Ponce was, at all times relevant to this case, the Warden at FCI Terminal Island, and was acting within the course and scope of her employment and under color of federal law. SUF 4.
Dr. Pelton was, at all times relevant to this case, employed by the BOP as its Western Regional Medical Director, and was acting within the course and scope of his employment and under color of federal law. SUF 5. Dr. Pelton is licensed in internal medicine and works as a primary care physician. SUF 6. He completed his residency in internal medicine in 1997 and has worked as a physician for BOP ever since. SUF 6, 8. As the Western Regional Medical Director, he oversees an 11-state region that includes 20 institutions housing more than 20,200 inmates. SUF 9. He also served as the Acting Clinical Director at FCI Terminal Island from July 2017, when the previous Clinical Director, Dr. Evelyn Castro, retired, until the end of the period at issue in this case. SUF 10-11. During the time when he was the Acting Clinical Director at FCI Terminal Island, Dr. Pelton spent approximately one week of every month at FCI Terminal Island. SUF 12. A contractor, Dr. Saroj Gulani, provided daily physician services at FCI Terminal Island from mid-2017 through July 2018. SUF 13. At the time Feao was incarcerated at FCI Terminal Island, neither Ponce nor Dr. Pelton had ever managed the care of an inmate with a heart transplant. SUF 299.
Plaintiffs object to Dr. Pelton's declaration submitted in support of the MSJ because it was unsigned. Shortly after Plaintiffs' Opposition was filed, Defendants filed a Notice of Errata attaching Dr. Pelton's declaration with Dr. Pelton's signature, dated October 29, 2022. [Doc. # 67-1.] In their Notice of Errata, Defendants explain that Defendants' counsel erroneously filed an unsigned version of the declaration with the MSJ, but that the signed version was in her possession at the time of filing. Because the error has been corrected, and because the declarations are otherwise identical, Plaintiffs' objections to Dr. Pelton's declaration and the documents it authenticates are OVERRULED.
B. Care at FCI Terminal Island
On February 14, 2017, the day Feao was transferred to FCI Terminal Island, he received a health screening, at which Feao informed FCI Terminal Island staff about his heart transplant. SUF 65. On February 23, 2017, Feao saw Dr. Castro, who was then the Clinical Director at FCI Terminal Island. SUF 66, 10. Feao told Dr. Castro that his condition was stable, with no shortness of breath or chest pain. SUF 68. Dr. Castro requested Feao's medical records from CPMC and spoke by phone with a member of his heart transplant team. SUF 69-70. She made changes to Feao's medications based on recommendations from CPMC and made several other orders, including that Feao be placed on a lower bunk and not perform work that required lifting more than 15 pounds. SUF 71-72. She placed Feao on Care Level 3. SUF 73. She also scheduled him for a chronic care visit on March 17, 2017. SUF 74. Around February 28, 2017, a physician assistant submitted a request for a cardiology consult to evaluate Feao, with a target date of July 31, 2017. Dr. Castro co-signed the request on April 18, 2017. SUF 75. Feao also had a chest x-ray on March 7, 2017, as ordered by Dr. Castro. SUF 76.
BOP assigns inmates and facilities to one of four "Care Levels" based on an inmate's chronic medical and mental health conditions and the facility's ability to care for inmates with particular conditions. SUF 29. In 2017 and 2018, FCI Terminal Island was a Care Level 3 institution, which means that it was determined to be capable of caring for inmates with complex medical conditions, who require frequent clinical care, but is not an inpatient facility (in contrast to Federal Medical Centers, which provide inpatient and outpatient care). SUF 30, 31, 55. Inmates who received an organ transplant more than one year ago default to Care Level 3. See Pelton Decl., Ex. N [Doc. # 65-22].
1. Reports of Shortness of Breath and Dizziness
On April 4, 2017, Feao saw Dr. Castro for a chronic care appointment, at which he reported that he was doing okay but had minor shortness of breath on physical activity. SUF 80. At a sick call visit on May 1, 2017, Feao reported mild shortness of breath lasting a few seconds on physical activity, but said he did not feel it when resting. SUF 83; see also Jacobs Decl., Ex. I ("2017 BOP Medical Records") at 65 [Doc. # 65-15]. On May 3, 2017, a chest x-ray was taken, which the reviewing provider noted was unchanged from the x-ray taken on March 7, 2017. SUF 84.
Page citations herein refer to the page numbers inserted by the CM/ECF system.
On May 17, 2017, Feao had his first consultation with Dr. Ron Sklash, a cardiologist. SUF 86. Dr. Sklash is a general cardiologist, with no sub-specialization in transplant cardiology. Dr. Sklash's progress notes regarding the consultation note that Feao "has felt well without significant angina or dyspnea," that his exam that day showed no signs of heart failure, and that an EKG was performed showing normal sinus rhythm without ischemic changes. SUF 88. He ordered a follow-up echocardiogram for November 2017, for which a BOP clinician submitted a request. SUF 93.
Dr. Sklash was not a BOP employee, but a sub-contractor hired by Correct Care Solutions, LLC ("CCS" or "Wellpath"). See Ruffus Decl. ¶ 4.b [Doc. # 65-10]; see also SUF 37. Wellpath is a contractor of BOP, and is responsible for sub-contracting with specialist physicians and medical providers to treat inmates at FCI Terminal Island. SUF 37.
Another EKG was performed on June 15, 2017 to establish a baseline. The interpretation of that EKG included a finding of "pulmonary disease pattern." SUF 94. Dr. Pelton reviewed the report, but "did not believe it warranted any intervention because it was not significantly different than prior EKGs of [ ] Feao." Pelton Decl. ¶ 21. Dr. Pelton also attests that he was not aware of any significance of the computer-generated finding of "pulmonary disease pattern." Id.
Feao had another general medical evaluation on July 14, 2017, at which he reported no chest pain and no shortness of breath. SUF 96. But on July 26, 2017, he visited sick call to request an optometry check and to note that he "has occasional minor episodes of shortness of breath, on and off x 3-4 weeks," for example when he was walking. A cardiology consultation request was submitted with a target date of August 31, 2017, and the provider also ordered an EKG. 2017 BOP Medical Records at 55-56. The provider, "mid-level provider" Redentor Cornejo, requested that the note be co-signed by Dr. Pelton, and Dr. Pelton reviewed it the same day. Dr. Pelton attests that he does not recall his thought process, but that Feao's report of shortness of breath when walking was "not appreciably different" from Feao's report to his transplant team on November 14, 2016 that he had shortness of breath when he was very active. Pelton Decl. ¶ 22.
On September 21, 2017, Feao submitted a cop-out (via email) to the general Health Services inbox stating "Hi I have been having shortness of breath for the past 3 days so I was wondering if I can come in for a check up. Thank you!" A handwritten September 21, 2017 reply states "If you're having shortness of breath, you need to notify your housing unit officer manager to call for medical emergency. The Medical Staff will response [sic]. Otherwise you need to sign-up for sick call M, T, Thu, F. from 6:15-6:45 a.m." SUF 101; see also 2017 BOP Medical Records at 248. On September 28, 2017, Feao visited Cornejo at sick call to request medical shoes for heel pain, and again reported "occasional episodes of shortness of breath," but none at present. SUF 102. Cornejo requested a podiatry specialist consultation and requested that Dr. Pelton co-sign the note, which he did on October 2, 2017. SUF 103; see also 2017 BOP Medical Records at 46. Dr. Pelton believed that the report of shortness of breath "was only ancillary to the podiatry complaint and not appreciably different than Mr. Feao's long-standing complaints of shortness of breath." Pelton Decl. ¶ 23.
2. Reports of Shortness of Breath and Syncope
Just before 6:00 a.m. on September 30, 2017, Feao visited Health Services to report that he had fallen from his top bunk around 4:30 a.m., as reported by his bunkmates. The notes from his treating RN, Valarie Williams, state that he denied injuries, dyspnea, or chest pains, but "elaborated at length about being six months overdue for an [sic] heart catheterization, than the actual mechanical fall." 2017 BOP Medical Record at 41. Feao also said he "feels it's a sign of rejection," he's "dealt with this for six years," he "was due for a heart cath," and that "ha[s]n't gotten one yet since [he's] been here." Id. at 39. An EKG was performed, and the results reported, among other things, an "incomplete right bundle branch block." SUF 106. Dr. Pelton reviewed both the notes and the EKG results on October 2, 2017, but did not believe that further intervention was required because Feao was uninjured, he was slated for a cardiology consult, and Dr. Pelton's review of the EKG "showed a barely perceptible bundle branch block and certainly nothing that would interfere with breathing." Pelton Decl. ¶ 25.
Neither side addresses in its briefs why Feao was sleeping on the top bunk when Dr. Castro had ordered him a lower bunk.
On October 5, 2017, Feao saw Dr. Gulani for a Chronic Care Clinic encounter. Dr. Gulani's notes say Feao "started some symptoms, like passed out also SOB [shortness of breath]." Feao told Dr. Gulani he had shortness of breath "off and on," but no edema or chest pain. 2017 BOP Medical Records at 30. Dr. Gulani requested a new cardiology consult with a target date of October 13, 2017. SUF 111. Dr. Pelton did not review these notes.
On October 13, 2017, Feao had a chest x-ray. The findings stated, among other things, "no change from the prior studies." SUF 112. Dr. Pelton reviewed the chest x-ray on October 18, 2017. The fact that there were no changes from prior studies indicated to Dr. Pelton that the x-ray did not show anything clinically significant. The presence of sharp costophrenic angles indicated to Dr. Pelton that there was a low likelihood of clinically significant heart failure. Pelton Decl. ¶ 26.
Feao also saw Dr. Sklash on October 13, 2017. Dr. Sklash noted that Feao had shortness of breath "on exertion and one episode of near syncope [passing out]," but no chest pain, fever, chills, or palpitations. His note states Feao "needs R + L Heart Cath[eterization] scheduled at Long Beach Memorial ASAP. To be done by Dr. Van Gieson." 2017 BOP Medical Records at 240. It does not appear that Dr. Pelton reviewed this note. Instead, Dr. Gulani reviewed it on October 17, 2017, and submitted a request for the catheterization, with a target completion date of October 20, 2017. Id. at 242; see also SUF 117.
3. Emergency Health Services Visits and Cardiac Catheterization
On November 9, 2017, Feao was taken by wheelchair for an emergency visit to Health Services. He reported that he had been in bed waiting for chow when he had chest pain and shortness of breath that lasted for one minute. An EKG was performed, which showed the same results as the prior EKG, and the treating RN called Dr. Pelton. Dr. Pelton said he would push through the requested catheterization, and that Feao could be taken back to his unit. 2017 BOP Medical Records at 23; SUF 119. The request for a cardiac catheterization was submitted to Dr. Pelton on November 11, 2017, and he approved it on November 13, 2017. SUF 121.
On November 20, 2017, Feao received a right and left cardiac catheterization, selective coronary arteriography, and left ventriculography. These procedures were performed by Dr. Henry Van Gieson at St. Mary's Medical Center ("SMMC") in Long Beach, California. UF 123. SMMC is a hospital with an approximately 36-bed intensive care unit and has departments in a number of medical specialties, including cardiology and surgery. SUF 124. The summary of the procedure stated that Feao had normal right heart pressures with low baseline cardiac output, normal left ventricular systolic function, and mild atherosclerosis in the proximal right coronary artery, but that his coronaries were otherwise normal in appearance. SUF 125. The discharge instructions did not recommend further care or biopsy, but said to follow up as needed. Dr. Pelton reviewed these instructions on November 20, 2017. SUF 126-27. He reviewed the results on December 15, 2017, and found them to be reassuring. Pelton Decl. ¶ 29.
At 9:43 p.m. on November 28, 2017, Feao again made an emergency visit to Health Services, where he was evaluated by an emergency medical technician. He reported six episodes that day of dizziness, shortness of breath, and near syncope, each lasting about two minutes, and said it had been happening a lot for the last two months. He told the EMT he thought these were symptoms of heart rejection. He was admitted for inpatient monitoring overnight. 2017 BOP Medical Records at 10-11. Around 1:00 a.m. that night, he reported to the nurse monitoring him that he thought he had passed out and felt weak. He was placed near the nurse's station for close monitoring, and the nurse informed Dr. Pelton. Id. at 8. The next day, Feao was evaluated by a mid-level provider, Marcos Aird. Aird told Feao to follow up at sick call as needed and offered to add a diuretic to Feao's medication regimen, which Feao declined. Id. at 5-6. Dr. Pelton does not appear to have reviewed Aird's notes, but he did review the notes from Feao's evaluation by the EMT, as well as the nurse's overnight notes. He attests that he was aware that Feao had just had a heart catheterization, but because the discharge instructions were to follow up as needed, he believed the results were unlikely to be clinically concerning. Pelton Decl. ¶ 28.
On January 3, 2018, Feao had another EKG. Dr. Sklash interpreted the EKG on January 7, 2018, but did not give any recommendations. SUF 143.
On February 23, 2018, Feao had a sick call visit with Cornejo, where he reported that he had run out of refills of certain of his medications, that he had felt slight shortness of breath ever since arriving at FCI Terminal Island, and that he had mild edema in both his lower legs. Cornejo referred Feao for a cardiology consult, with a target date of March 9, 2018. SUF 146. Dr. Gulani co-signed the note. 2018 BOP Medical Records at 63. Feao visited Cornejo at sick call again on February 28, 2018, complaining of shortness of breath on exertion and breathing deeply, fatigue, and upper substernal chest pain for approximately two months. Cornejo expedited certain labs he had already ordered, and requested a chest x-ray. SUF 148-49. Dr. Pelton did not review this note. The results of a chest x-ray taken on February 28, 2018 showed Feao's heart had increased in size compared to the prior examination, but no evidence of congestive heart failure. The interpretation made the recommendation to "consider further evaluation perhaps by cardiac echo examination." SUF 151. Dr. Pelton states that when he reviewed this x-ray, on March 8, 2018, he believes he would have deferred to Dr. Sklash, whom Feao was scheduled to visit the following day. Pelton Decl. ¶ 32.
Feao saw Dr. Sklash on March 9, 2018. Dr. Sklash noted that Feao was "still" having progressive congestive heart failure symptoms, mild edema, and shortness of breath on exertion. He recommended adding two additional medications and scheduling a CT angiogram. SUF 154. Cornejo ordered the medications, scheduled the angiogram with an "urgent" priority, and scheduled a cardiology follow-up for June 2018. Dr. Gulani co-signed the note. SUF 155. On March 12, 2018, lab results showed that Feao's B Type Natriuretic Peptide ("BNP") levels were 174 pg/mL. SUF 156. Although Dr. Pelton noted in reviewing these results that BNP is a marker for heart failure, Dr. Sklash had previously noted that Feao was having symptoms of congestive heart failure, so Dr. Pelton concluded that the results did not add new information to Dr. Sklash's previous conclusions. Pelton Decl. ¶ 33.
On March 14, 2018, Feao visited Health Services for a routine EKG, where he was treated by an EMT. Feao reported that he had been having shortness of breath when reading a book or watching TV for the last six weeks, and that they had grown so severe that he felt like he would pass out. Feao told the EMT that his medical team in San Francisco was "very concerned with [his] current symptoms, but [ ] BOP seems not to care." The EMT advised Feao to return immediately if his condition worsened, and requested Dr. Pelton co-sign the note. 2018 BOP Medical Records at 46-47. Dr. Pelton co-signed the note on March 15, 2018. Because new medications and an angiogram had already been ordered, Dr. Pelton was not aware of anything further that needed to be done. Pelton Decl. ¶ 35.
4. Reports of Other Health Complaints
Feao also submitted cop-outs and made sick call visits at which he did not report shortness of breath or dizziness. In an April 13, 2017 cop-out to Dental, Feao states his "desire to have my teeth cleaned and whatever treatment needed. Thank you!" A note on the cop-out states he should be scheduled out of order based on his cardiologist's recommendation for cleaning every six months. See 2017 BOP Medical Records at 263. In a cop-out to Health Services, Feao states "Hi, My vision has gone completely bad and I have put a few cop-outs and still no reply. Is there anyway I can see someone for my vision? Thank you!" Jacobs Decl., Ex. I (2017 BOP Medical Records) at 234 [Doc. # 65-15]. A handwritten reply dated July 12, 2017 states "Your PA is currently out of the office. You may wait for him to return to address previous sick calls or report to sick call to be triaged and placed on another provider's call out." Another copy of the same cop-out has a different, illegible reply. See 2017 BOP Medical Records at 235. In another Dental cop-out, Feao states "Hi, I am due for my routine teeth cleaning that is part of my heart transplant order for every 6 months. Please let me know when I come in for th [sic] cleaning. Thank you!" The reply, sent on October 2, 2017, states that his name has been added to a national routine treatment waitlist, and that he would be scheduled as time and staffing permit for routine care. The reply also noted that his teeth were last cleaned on April 13, 2017. 2017 BOP Medical Records at 243; see also id. at 155 (records of cleaning). Feao also made several sick call visits regarding foot pain, discussed supra, and put in a cop-out regarding size 12 medical boots sometime in 2018. See Jacobs Decl., Ex. J ("2018 BOP Medical Records") at 180 [Doc. # 65-16].
Plaintiffs' Opposition states that Feao filed cop-outs, but provides no pinpoint citations to any cop-outs or description of what the cop-outs contained. The Court has not located any additional cop-outs in the record.
5. March 2018 Hospitalization
At 6:18 p.m. on March 26, 2018, Feao again suffered shortness of breath lasting two minutes with accompanying chest pain that he rated a seven out of ten pain. He had also lost 22 pounds during the previous two weeks. He was picked up by an ambulance, where he was evaluated by an EMT and an EKG was performed. The EKG was abnormal, and the EMT called Dr. Pelton, who advised the EMT to send Feao to an emergency room. SUF 167, 330-31. Upon his arrival at SMMC, he reported that he had been having shortness of breath and chest pain for the past two months, worsening that day, as well as ankle swelling. SUF 169. The emergency room physician at SMMC consulted with the on-call doctor from CPMC's heart transplant center, who recommended that Feao be admitted at SMMC for telemetry monitoring, echocardiogram, and cardiac catheterization. SUF 170. Feao's physician at SMMC, Dr. Steven Ching, spoke with the on-call cardiologist from CPMC again on March 27 and March 29, and they formed a plan to transfer Feao to a hospital with a transplant center for more specialized care. SUF 172. SMMC's Case Management Department attempted to transfer Feao to several local hospitals, including Cedars Sinai Medical Center, the University of Southern California Medical Center, Loma Linda University Medical Center, and UCLA's Ronald Reagan Medical Center, but Cedars Sinai, USC, and UCLA all declined to take him.
USC Medical Center was unable to accommodate Feao because it does not have a jail ward. SUF 175. UCLA also stated it does not accept patients who are incarcerated. Jacobs Decl., Ex. L ("SMMC Medical Records") at 31 [Doc. # 65-18]. The record is not clear as to why he was denied transfer to Cedars Sinai.
On March 30, 2018, while the transfer request to Loma Linda was pending, Feao was seen by Dr. Mark Lee, a cardiologist at SMMC, who found evidence of an intermittent complete heart block and concluded that Feao would probably require a pacemaker implant. SUF 180. Dr. Ching spoke again with the transplant team at CPMC, who agreed that a pacemaker should be placed. SUF 181. Case Management Department notes state that after that discussion, Dr. Ching informed the Case Management Department that Feao's cardiologist in San Francisco stated that transfer was no longer necessary. SMMC Medical Records at 31. Dr. Ching's notes reflect that he informed the CPMC specialist that Feao had a new onset of a complete heart block, and that the CPMC specialist agreed that this was likely the cause of Feao's symptoms, and that Feao's transplant "is so far out that rejection would be less likely to be a cause of his symptoms at this time." Dr. Ching notes that the CPMC specialist agreed with placement of a pacemaker as soon as possible at SMMC, and that Feao "[did] NOT need to necessarily be transferred to a tertiary care center for this." Id. at 27. The parties dispute whether these notes mean that Feao's providers at CPMC intended that he would be transferred to a tertiary care center after his pacemaker implant. It is uncontroverted, however, that the attempt to transfer Feao to a tertiary care center was abandoned after this point. SUF 182. On April 3, 2018, Feao underwent a pacemaker implantation procedure at SMMC. SUF 183. He was discharged from SMMC to FCI Terminal Island on April 4, 2018. SUF 184.
Upon his return to FCI Terminal Island, Feao saw a BOP RN, Elizabeth Lopez. Feao told her he was doing fine and asked to return to his unit. SUF 191. Dr. Pelton co-signed Lopez's note on April 9, 2018. SUF 192. On April 10, 2018, Feao had his previously-scheduled CT angiogram, which showed no evidence of a pulmonary embolism. SUF 199. On April 13, 2018, Dr. Gulani submitted a request for a pacemaker consult with Dr. Sklash, and that same day, Feao was seen by Dr. Sklash, who recommended that Feao continue his current medications and schedule a routine pacemaker check. SUF 194-95.
On May 4, 2018, Feao had another EKG as a result of "chest discomfort." Dr. Sklash read the results of the EKG and concluded that it showed "no arrhythmias or changes from prior." SUF 204-05. The report was reviewed by Dr. Franklin Rutledge. SUF 206. Feao did not report any other health problems during the remainder of May 2018. SUF 207.
On June 1, 2018, Feao had another cardiology consult with Dr. Sklash, who noted that he was having "recurrent syncopal episodes similar to prior" and shortness of breath on exertion. Dr. Sklash speculated that the pacemaker might need a change in settings, and recommended a pacemaker check "asap—either in my office or onsite with rep next month." SUF 208. Dr. Pelton did not review this note; it was reviewed by Dr. Rutledge. SUF 209.
6. June 2018 Hospitalization and Death
On June 18, 2018, at 11:44 a.m., a BOP physician's assistant ordered an EKG for Feao due to his three-day history of dizziness and shortness of breath. SUF 210. A chest x-ray was also performed. SUF 211. At 1:06 p.m., Feao saw Dr. Gulani, who sent him to the emergency room at SMMC to evaluate his complaints of dizziness, lightheadedness, shortness of breath, edema, discomfort, loss of consciousness, and chest pressure. SUF 213.
On June 19, 2018, Feao told his physicians at SMMC that his symptoms had initially improved after the pacemaker implant, but that over the subsequent months they had again deteriorated. SUF 215. Dr. Gulani's notes from June 19, 2018 show that as of 1:57 p.m., Feao was in the ICU at SMMC with congestive heart failure and an elevated troponin level. SUF 216. That night, Dr. Mina Jamalleh Abu Gosh, who was treating Feao at SMMC, received a call from Dr. Jared Herr at CPMC's heart transplant center. Dr. Herr told Dr. Abu Gosh about "the emergent need" to transfer Feao to a tertiary care center, given the concern for transplant rejection. Dr. Abu Gosh's notes show that she "spoke with [Case Management]/House staff supervisor and was informed about the complexity of the Terminal Island system and that Dr. [Juan] Polanco will be the best person to talk to." She spoke to Dr. Polanco about the need for a transfer, who also informed her about the "complex terminal island [sic] system." Dr. Polanco told Dr. Abu Gosh that he would talk to Dr. Gulani first thing the following day to try to arrange the transfer process. SMMC Medical Records at 33.
From June 20 to June 26, SMMC and Wellpath once again attempted to transfer Feao to Cedars Sinai, Loma Linda, and USC. On June 20, 2018, Cedars Sinai refused to accept him because it did not have a contract with the insurance company. SMMC Medical Records at 38. On June 21, 2018, a transferee cardiologist at Loma Linda refused to accept Feao because he needed to be seen at CPMC. SUF 227. On June 21, 2018, Dr. Gulani and Dr. Polanco discussed the possibility of transferring Feao to a San Francisco prison so that Feao could be treated at CPMC. SMMC Medical Records at 37. On June 22, 2018, USC declined to accept Feao because of a lack of security. SUF 228. Beth McLain, a Wellpath employee, reported to SMMC Case Management staff that Dr. Gulani would be meeting with BOP to determine if Feao could be treated at CPMC. Dr. Abu Gosh then followed up with Loma Linda to attempt to transfer Feao again. SMMC Medical Records at 37. Although Loma Linda initially declined to reconsider, it eventually agreed to accept Feao on June 23, 2018, but Feao was not stable enough to transfer. When, on June 25, Feao was cleared for transfer, the SMMC Case Management department received a call from Loma Linda's transfer center, stating that Loma Linda had not received a call from FCI Terminal Island regarding the transfer. SMMC Medical Records at 36. SMMC records show that an SMMC Case Management employee called Wellpath on June 26 to attempt to obtain financial approval for air transport for Feao, but that financial clearance was obtained later that day. A "transfer back" agreement between Loma Linda and SMMC, pursuant to which SMMC agreed to accept Feao back as a patient when the level of care provided at Loma Linda was no longer required, was also not signed until June 26, 2018. Id. at 35. Later that day, Feao was air-lifted to Loma Linda in San Bernardino County. SUF 251.
During Feao's hospitalization at SMMC, he suffered multiple episodes of cardiac arrest. SUF 250. After the transfer, on July 4, 2018, Feao suffered another cardiac arrest at Loma Linda, and passed away. SUF 252. He was 29 years old. SUF 342. An autopsy showed the likely cause of death was "severe transplant vasculopathy in the setting of mild, low grade, acute cellular rejection," with "myocardial infarction" as a contributing factor. SUF 253. Feao's projected date of release from prison was approximately September 24, 2018. SUF 18.
7. Referrals to Specialists at FCI Terminal Island
Andrew Ackley, who was FCI Terminal Island's Health Services Administrator from March 2018 to March 2021, attests that if an inmate's care is or becomes outside the scope of a specialist's abilities, BOP relies on the specialist to recommend additional care, including recommendations for referrals to other specialists. Ackley Decl. ¶¶ 3, 14 [Doc. # 65-8]. Dr. Pelton likewise attests that he relied on Dr. Sklash to make recommendations regarding Feao's care, including referrals to a sub-specialist. Pelton Decl. ¶ 44. In Dr. Pelton's experience, specialists do make such referrals when they believe subspecialty care is required. Id.
8. Ponce's Involvement in Feao's Medical Care
Ponce's role as Warden at FCI Terminal Island included overseeing the running of the entire institution. SUF 263. She has no medical education or training. SUF 264. Instead, she deferred to her staff to make decisions regarding inmates' medical care. SUF 269. She has no recollection of ever interacting with Feao, or of receiving any complaints from Feao regarding his medical care. SUF 273-74. Her only recollection of any time she was involved in Feao's medical care was when she authorized his transport via airlift from SMMC to Loma Linda. SUF 275. She also approved each of Feao's transfers to SMMC. SUF 358.
C. Expert Opinions
Defendants' retained expert, Dr. Garth Gulick, is board-certified in family medicine, and is a certified correctional health professional physician. Gulick Decl. ¶ 1 [Doc. # 65-24]. Dr. Gulick opines that the care provided by BOP's physicians and mid-level providers to Feao was within the applicable standard of care for general physicians and mid-level providers practicing in correctional facilities. Id. at ¶ 79. He states that primary care providers who refer patients to specialists rely on the specialist to make recommendations regarding referrals to sub-specialists, and since Dr. Sklash did not make such a recommendation, it was reasonable for the BOP providers to rely upon his expertise. Id. at ¶ 81. He notes that the BOP providers followed all Dr. Sklash's recommendations, as well as those of Feao's providers at SMMC. Id. at ¶¶ 82-83. Dr. Gulick opines that Feao's death was "completely independent from any of the decisions made by BOP providers or staff." Id. at ¶ 84.
Plaintiffs' retained expert, Dr. Michael Lee, is board-certified in cardiology and interventional cardiology. Lee Decl. ¶ 1 [Doc. # 66-4]. Dr. Lee states that he is "familiar with the standard of care for the treatment of heart transplant patients." Id. at ¶ 46. An appropriate treatment plan for a patient like Feao would include biannual workups, including cardiac catheterizations, angiograms, and sometimes biopsies, by a heart transplant specialist. Id. at ¶ 48. Dr. Lee focuses on BOP's failure to arrange for Feao to be seen by a heart transplant specialist, and opines that a general cardiologist like Dr. Sklash, without transplant experience, is not equipped to properly monitor a heart transplant recipient. Id. at ¶ 50. Dr. Lee attests that "it is well known throughout the medical field" that a heart transplant patient needs specialized care and is at risk for various complications, including cardiac allograft vasculopathy ("CAV"). Id. at ¶¶ 51-52. Dr. Lee also attests that it is well known "throughout the medical field" that warning signs for such complications include shortness of breath, fainting, dizziness, chest pain, and lower leg edema. Id. at ¶ 53. Despite Feao's repeated complaints of these symptoms, as well as multiple statements to providers that he believed those symptoms were signs of heart rejection, Feao was never referred to a transplant specialist. Dr. Lee states that Feao needed emergency treatment as of March 14, 2018, when he reported to Health Services that he was experiencing shortness of breath while resting. Id. at ¶ 60. Dr. Lee opines that, if Feao had been transferred to a cardiac transplant center on March 26, 2018, he would have undergone a pacemaker implantation as well as procedures specified for heart transplant patients, including cardiac catheterization, coronary angiography, and heart biopsy. Id. at ¶¶ 62-63. Dr. Lee also faults BOP's failure to refer Feao to a transplant center between April 2018 and June 2018, during which time Feao's heart continued to deteriorate. Id. at ¶ 67. Dr. Lee opines that Dr. Pelton should have investigated Feao's complaints of rejection-related symptoms and the adequacy of Dr. Sklash's treatment of those complaints. Id. at ¶ 70. Dr. Pelton's failure to arrange for Feao to be transferred to a transplant center created a medical emergency for Feao. Id. at ¶ 71. He attests, "with a high degree of medical certainty," that BOP's failure to provide Feao with the specialized care required for a heart transplant patient contributed to Feao's death. Id. at ¶ 75.
II.
PROCEDURAL HISTORY
Plaintiffs Jessica Feao and C.F. are Sepasitiano's wife and minor daughter, and Jessica is the successor-in-interest of Sepasiatiano's estate. SUF 1-3. Plaintiffs filed this action on July 6, 2020, asserting claims under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against Ponce, Dr. Pelton, Dr. Castro, and Cornejo (the "Individual Defendants"). [Doc. # 1.] The parties stipulated to allow Plaintiffs to file a First Amended Complaint asserting claims against the United States, which Plaintiffs filed on February 26, 2021. [Doc. # 27.] After Defendants moved to dismiss the First Amended Complaint, the parties again stipulated to permit Plaintiffs to file the operative Second Amended Complaint ("SAC"), which Plaintiffs filed on May 3, 2021. [Doc. #37.]
The SAC asserts Bivens claims for unlawful denial and deprivation of necessary and life-saving medical care against the Individual Defendants, and a claim under the Federal Tort Claims Act ("FTCA") against the United States. The United States filed its Answer to the SAC on May 21, 2021. [Doc. # 39.] Ponce, Dr. Pelton, Dr. Castro, and Cornejo filed a Motion to Dismiss ("MTD") the SAC on May 21, 2021. [Doc. # 40.] On August 3, 2021, the Court granted in part and denied in part the MTD. [Doc. # 50.] The Court concluded that Plaintiffs had not sufficiently alleged that Cornejo and Dr. Castro were involved in the failure to transfer Feao to a tertiary care center where he would have received more specialized treatment. The Court therefore dismissed Plaintiffs' claims against Cornejo and Dr. Castro, with leave to amend. Plaintiffs did not amend their SAC, and Ponce and Dr. Pelton filed their Answer on August 26, 2021. [Doc. # 55.] All remaining Defendants now move for summary judgment on Plaintiffs' claims. Ponce and Dr. Pelton also move for judgment on the pleadings on Plaintiffs' Bivens claim.
III.
LEGAL STANDARD
A. Motion for Judgment on the Pleadings
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). Judgment on the pleadings is properly granted only when, taking all the factual allegations in the complaint as true, "the moving party is entitled to judgment as a matter of law." Fairbanks N. Star Borough v. U.S. Army Corps. of Eng'rs, 543 F.3d 586, 591 (9th Cir. 2008) (quoting Dunlap v. Credit Protection Ass'n, L.P., 419 F.3d 1011, 1012 n. 1 (9th Cir. 2005) (per curiam)). A court must construe the factual allegations in the pleadings in the light most favorable to the non-moving party, but as in a Rule 12(b)(6) motion, it need not accept as true conclusory allegations that are contradicted by matters properly subject to judicial notice or by exhibits incorporated into the complaint by reference. See Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (citing Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004)); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "Generally, district courts have been unwilling to grant a Rule 12(c) dismissal unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984) (citation and internal quotation marks omitted).
B. Motion for Summary Judgment
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to "go beyond the pleadings and by [his or] her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c), (e)); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (en banc) ("Rule 56 requires the parties to set out facts they will be able to prove at trial."). "In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). "Rather, it draws all inferences in the light most favorable to the nonmoving party." Id.
IV.
DISCUSSION
A. Bivens Claim
Defendants contend that Plaintiffs' Bivens claim fails for three reasons. First, Ponce and Dr. Pelton move for judgment on the pleadings, on the basis that the Supreme Court's decision in Egbert v. Boule, 596 U.S. 482, 142 S. Ct. 1793, 213 L.Ed.2d 54 (2022), prohibits the Court from extending a Bivens remedy to Plaintiffs. Second, Defendants move for summary judgment on the basis that Ponce and Dr. Pelton did not violate Feao's constitutional rights. Third, Defendants seek summary judgment on the basis of qualified immunity.
1. Availability of Bivens Claim
Plaintiffs assert their claims against Ponce and Dr. Pelton under Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), in which the Supreme Court recognized a Bivens cause of action for federal prisoners asserting Eighth Amendment claims for deliberate indifference to prisoners' serious medical needs. But Defendants argue that the Supreme Court's decision in Egbert makes Plaintiffs' claim unviable.
a. History of Bivens Claims
In Egbert, the Supreme Court explained that, in three prior cases, it had recognized an implied cause of action against federal government officials for violations of a plaintiff's constitutional rights. Those three cases were Bivens itself, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (recognizing a cause of action for a former congressional staffer's Fifth Amendment sex-discrimination claim), and Carlson. But the Egbert Court also explained that, since Carlson, recognizing a new Bivens cause of action has become " 'a disfavored judicial activity.' " 142 S. Ct. at 1803 (quoting Ziglar v. Abbasi, 582 U.S. 120, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (2017)). Indeed, in three recent cases—Abbasi, Hernández v. Mesa, 589 U.S. 93, 140 S. Ct. 735, 743, 206 L.Ed.2d 29 (2020), and Egbert—the Court has suggested that, if it were asked to decide Bivens today, it would have decided differently, and has made clear that it intends to curb the availability of Bivens remedies. See Egbert, 142 S. Ct. at 1809. Still, the Court has repeatedly declined to overrule Bivens, Davis, and Carlson. See id. at 1803 (the Court has not "dispense[d] with Bivens altogether"); see also Pettibone v. Russell, 59 F.4th 449, 454 (9th Cir. 2023) ("[T]he Supreme Court has not overruled Bivens, Davis, and Carlson.").
Because extending Bivens is disfavored, the Supreme Court has laid out a two-step process lower courts must follow to evaluate whether it is proper to extend a Bivens remedy. Courts first consider whether the case "presents a new Bivens context—i.e., is it meaningfully different from" Bivens, Davis, and Carlson. Egbert, 142 S. Ct. at 1803 (citing Abbasi, 137 S. Ct. at 1859-60). If the claim does arise in a new context, a Bivens remedy will be unavailable if "special factors" indicate Congress would "at least arguably" be better equipped to create a damages remedy. Id.
b. Impact of Egbert
In Egbert, the Court recognized that the two steps described in its previous cases "often" collapse, because one aspect of the test to determine whether a case presents a new context is whether there are "potential special factors that previous Bivens cases did not consider." 142 S. Ct. at 1803 (citing Abbasi, 137 S. Ct. at 1860). Defendants argued at the hearing on this matter that Egbert had the effect of collapsing the inquiry altogether, and dispensed with the "new context" inquiry. Although Egbert does indicate that the existence of "special factors" can itself create a new context, see 142 S. Ct. at 1803, Egbert and the Ninth Circuit decisions interpreting Egbert clarify that the fundamental question in these cases is whether special factors counsel against expanding the remedy. In other words, although the Egbert test would find a "new context" much more often than even the Abbasi test, whether a given case presents a new context remains a live issue.
In Egbert, the Court reversed the Ninth Circuit's extension of a Bivens remedy to an excessive force claim against a Border Patrol agent. 142 S. Ct. at 1805. Although the Court's reasoning is sweeping, the Supreme Court and the Ninth Circuit both agreed that the case presented a new context, so the question presented related to the "special factors" step, not the "new context" inquiry. See id. at 1804. The Court reasoned that a claim against a Border Patrol agent, even one asserted by a United States citizen alleging deprivation of his constitutional rights on his own property, constituted a "national-security context," and that "judicial intrusion" into the "field of border security" counseled against such an extension of Bivens. Id. at 1805-06; see also id. at 1806 (noting that the Court had declined, on similar grounds, to extend a Bivens remedy to the family of a teenager shot by a Border Patrol agent across the United States border in Hernández); but see id. at 1803 (an action against a "new category of defendants" still might constitute a new context). The Court pointed out that an alternative remedy—specifically, the ability to file an administrative grievance against the defendant—was available to the plaintiff, who had in fact taken advantage of it. Id. at 1806. This factor also counseled against extending Bivens.
Two published Ninth Circuit cases have evaluated the availability of a Bivens remedy since the Supreme Court decided Egbert. Although the Ninth Circuit decisions have not focused on the border-security rationale for the Supreme Court's decisions in Egbert, Hernández, and Abbasi, they have retained the two-step process that has long governed the Bivens inquiry.
First, the Ninth Circuit held in Mejia v. Miller, 53 F.4th 501 (9th Cir. 2022), as modified (March 2, 2023), that no Bivens remedy was available in an excessive force case against a Bureau of Land Management ("BLM") officer because the case presented a new Bivens context. The Mejia court focused on two factors: the plaintiff sought a Bivens remedy against a defendant from an agency different from that in Bivens, and unlike in Bivens, the events at issue in Mejia did not occur in or near the plaintiff's home. See Mejia, 53 F.4th at 506 (noting that the plaintiff did not identify a Supreme Court case providing a Bivens remedy against a BLM agent, but "more importantly," the events in Mejia occurred on public lands, where the plaintiff had no expectation of privacy). The court therefore held that the plaintiff had no remedy under Bivens.
Even more recently, the Ninth Circuit concluded in Pettibone v. Russell that an excessive force action against a high-level supervisor at the Federal Protective Service ("FPS") presented a new Bivens context. The defendant in Pettibone was a supervisor with the FPS, who the plaintiffs alleged oversaw the use of unconstitutional tactics against peaceful protesters in Portland, Oregon during protests following the murder of George Floyd in the summer of 2020. The court held that Pettibone differed from Bivens for several reasons. First, the defendant in Pettibone was of a higher rank than the officers in Bivens, and his allegedly unconstitutional actions "took place at a higher level of generality" than those in Bivens. 59 F.4th at 455 (citing Abbasi, 137 S. Ct. at 1860). The defendant in Pettibone was also operating under a different legal mandate than the officers in Bivens: he was carrying out an executive order, issued by then-President Donald Trump, that provided for federal law enforcement officers to be deployed to Portland "to assist with the protection of Federal monuments, memorials, statues, or property" during the protests. Id. at 451. Finally, because the Pettibone defendant was carrying out an executive order, permitting a Bivens remedy "would carry a greater 'risk of disruptive intrusion by the Judiciary into the functioning of other branches' than was present in Bivens." Id. at 456 (quoting Abbasi, 137 S. Ct. at 1860). The court therefore determined that the case presented a new Bivens context. Id.
In both Mejia and Pettibone, the Ninth Circuit held that the plaintiff's claim presented a new context. Defendants are correct that Egbert, Mejia, and Pettibone make clear that "the Court's 'understanding of a "new context" is broad.' " Mejia, 53 F.4th at 505 (quoting Hernández, 140 S. Ct. at 743). But as already noted, the Court has declined to overrule Bivens, Davis, and Carlson. And despite the Supreme Court's repeated warnings that " 'expanding the Bivens remedy is now a 'disfavored' judicial activity,' " "Bivens is 'settled law' in the search-and-seizure context." Id. at 504 (quoting Abbasi, 137 S. Ct. at 1857) (emphasis added).
Likewise, Carlson remains settled law, and federal courts continue to treat it as such. For example, in Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022), the Fourth Circuit held that an Eighth Amendment conditions of confinement claim constituted a "new context," and distinguished from Carlson on the basis that "[t]he claim in Carlson was narrow and discrete, implicating well-established criteria for liability and damages." 54 F.4th at 846; see also id. at 844-845 (Abbasi, Hernández, and Egbert did not overrule Bivens, Davis, and Carlson, but "narrow[ed their] precedential scope" and warned courts "to act with utmost hesitation when faced with actions that do not fall precisely under Bivens, Davis, or Carlson"). In Silva v. United States, 45 F.4th 1134 (10th Cir. 2022), the Tenth Circuit also distinguished from Carlson in holding that a claim alleging use of excessive force by a prison official would impermissibly expand Bivens. 45 F.4th at 1137. In an unpublished memorandum disposition, the Ninth Circuit distinguished from Carlson to hold that a claim that a prison correctional officer labeled the plaintiff a snitch and offered a reward for assaulting him would constitute a new context under Bivens. See Hoffman v. Preston, No. 20-15396, 2022 WL 6685254, at *1 (9th Cir. Oct. 11, 2022). None of these cases indicate that a Bivens cause of action would not be available where the plaintiff's claim "fall[s] precisely under" Carlson. Accord Tate, 54 F.4th at 845. Carlson remains binding law, which must be harmonized with Egbert.
Two concurrences in Egbert acknowledge that the majority's ruling will be difficult to apply. See 142 S. Ct. at 1810 (Gorsuch, J., concurring) (objecting that the majority "leaves a door ajar and holds out the possibility that someone, someday might walk through it even as it devises a rule that ensures no one ever will") (citations omitted); id. at 1823 (Sotomayor, J., concurring in part and dissenting in part) ("[T]oday's opinion will make it harder for plaintiffs to bring a successful Bivens claim, even in the Fourth Amendment context," but "the lower courts should not read it to render Bivens a dead letter."). In the absence of clear guidance to the contrary from the Supreme Court or the Ninth Circuit, this Court will continue to treat Carlson as good law.
c. New Context Inquiry
The question, then, is whether this case presents a "new context" under Bivens. Carlson specifically authorized an action against federal prison officials for the failure to provide medical care to an inmate. But Defendants argue that this case arises in a new context because the denial of medical care differs in kind and severity from that at issue in Carlson. In Carlson, the plaintiff alleged that the defendants failed to provide adequate medical care for her son, who died of an asthma attack while incarcerated. Carlson, 446 U.S. at 16 n.1, 100 S.Ct. 1468. The defendants were aware that the medical facilities and staff at the facility where the decedent was held were "gross[ly] inadequate," but kept the chronically asthmatic decedent at the facility against his doctors' advice. One of the defendants in Carlson was the prison's chief medical officer, who the plaintiff alleged "did not provide any emergency procedure for those times when a physician was not present." See Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978). When he had an asthma attack, the defendants failed to provide him with competent medical care for eight hours, administered a drug that was contra-indicated and worsened the attack, and used an inoperative respirator to attempt to treat him. The complaint alleged that the failure to provide care was in part motivated by racism. 446 U.S. at 16 n.1, 100 S.Ct. 1468. Defendants contend that, unlike in Carlson, Plaintiffs here seek a remedy for a long-term denial of care for a chronic condition, and that this constitutes a meaningful difference. Defendants also argue that, unlike in Carlson, they did provide Feao with the recommended care.
This case is not meaningfully different from the claim in Carlson. The rank of the officers involved is the same: Dr. Pelton is sued for actions he took as the Acting Clinical Director at FCI Terminal Island, just like the chief medical officer defendant in Carlson. Plaintiffs here, like the plaintiff in Carlson, assert claims under the Eighth Amendment for denial of proper medical care to their relative, resulting in the relative's death. As in Carlson, the standard under which Defendants were operating—deliberate indifference to a prisoner's serious medical need—has long been clear. Accord Abbasi, 137 S. Ct. at 1864 (distinguishing from Carlson on the basis that in Carlson, the "deliberate indifference" standard was well-established). And although Defendants argued at the hearing that imposing liability on prison doctors and nurses might make hiring difficult, and that this posed an unacceptable "risk of disruptive intrusion by the Judiciary into the functioning of other branches," see id. at 1860, the Court rejected a similar argument in Carlson. See 446 U.S. at 19, 100 S.Ct. 1468 (qualified immunity provides adequate protection against the possibility that imposition of liability against individuals "might inhibit their efforts to perform their official duties").
The Court finds infra that Ponce is entitled to summary judgment on the merits of Plaintiffs' claims against her, so focuses the analysis here on the claim against Dr. Pelton.
To support their theory that a different illness constitutes a meaningful difference, Defendants cite to several unpublished district court cases in which courts have concluded other claims of deliberate indifference to a federal prisoner's serious medical need constitute a "new context." None of those cases are binding authority, and none hold that Egbert or its precursors require the categorical denial of a Bivens remedy to federal prisoners asserting Eighth Amendment deliberate indifference claims. In addition, the cases cited by Defendants all differ from Carlson in more substantial ways than does Plaintiffs' claim here. None, for example, allege a denial of care that resulted in the inmate's death. See Washington v. Fed. Bureau of Prisons, No. CV 5:16-3913-BHH, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022) (deliberate indifference claim arising out of alleged failure to provide medical and personal assistance necessitated by the plaintiff's blindness constituted a new context); Davis v. FCI-Schuylkill, No. 1:22-CV-1270, 2022 WL 4348462, at *2 (M.D. Pa. Sept. 19, 2022) (failure to prevent exposure to COVID-19); Manzo v. Mateware, No. 3:19-CV-812-S-BK, 2021 WL 6284098, at *4 (N.D. Tex. Dec. 13, 2021), report and recommendation adopted, 2022 WL 48395 (N.D. Tex. Jan. 5, 2022), aff'd sub nom. Manzo v. Mateware, No. 22-10091, 2022 WL 5101930 (5th Cir. Oct. 4, 2022) (claim for failure to treat detached retina); Martinez v. United States Bureau of Prisons, No. ED CV 02-160-TJH (AFMx), 2019 WL 5432052, at *9 (C.D. Cal. Aug. 20, 2019), report and recommendation adopted, No. ED CV 02-160-TJH (AFMx), 2019 WL 5424414 (C.D. Cal. Oct. 22, 2019), aff'd, 830 F. App'x 234 (9th Cir. 2020) (claim for failure to treat hypertension, resulting in lightheadedness and nausea). These decisions all zero in on the difference in the type and extent of the plaintiffs' injuries in performing the new context analysis. See Washington, 2022 WL 3701577, at *5 ("Plaintiff's Bivens claims do not involve a medical emergency, as did Carlson, but rather focus on a long term and ongoing course of medical treatment of Plaintiff's chronic, non-fatal condition."); Davis, 2022 WL 4348462, at *2-3 ("Carlson concerned alleged failure to treat an illness; this case concerns an alleged failure to prevent an illness."); Vaughn v. Bassett, No. 1:19-CV-00128-C, 2022 WL 4299720 (W.D. Tex. Sep. 19, 2022) (no Bivens remedy for caved-in cheekbone from softball accident because "although the Court does not downplay Plaintiff's injury and alleged permanent disfiguration, his overall injury is measurably less serious than that in Carlson, as he obviously does not allege a significant failure of the medical delivery system that led to the prisoner's death.").
On appeal, the Ninth Circuit affirmed the district court's ruling that the plaintiff's claim for failure to treat his hypertension did not constitute deliberate indifference, but did not address the district court's Bivens ruling.
The Court respectfully disagrees with Washington in that Carlson did, in fact, involve claims regarding officials' long-term failure to provide appropriate treatment, in addition to claims relating to the emergency that led to the prisoner's death.
Other courts have recently concluded, even after Egbert, that actions asserting deliberate indifference to a federal prisoner's serious medical needs do not present a new context different from that in Carlson. See, e.g., Foreman v. United States of America, No. 22-10401, 2023 WL 1991561, at *4 (E.D. Mich. Feb. 14, 2023) (deliberate indifference to plaintiff's need for rehabilitative therapy after contracting COVID-19 not a new Bivens context); Hammack v. Schneider, No. 19-CV-00230-JPG, 2023 WL 143312, at *3 (S.D. Ill. Jan. 10, 2023) (failure to treat plaintiff's Dupuytren's Contracture, resulting in loss of use of his hand, not a new Bivens context). Moreover, in Ziglar, which makes clear that "the new-context inquiry is easily satisfied," the Court nevertheless noted that "some differences . . . will be so trivial they will not suffice to create a new Bivens context." 137 S. Ct. at 1865. This Court is not persuaded that the long-term mismanagement of a serious condition, resulting in an inmate's death, is meaningfully different from the more immediate mismanagement at issue in Carlson, at least for purposes of determining whether a Bivens remedy should be available. Indeed, such a conclusion would essentially limit Carlson to its facts. Defendants cite to no other distinctions that make this a "new context" for purposes of determining the availability of a Bivens remedy.
At the hearing on this matter, Defendants criticized the Foreman decision for relying on dicta in two postEgbert decisions from the Sixth Circuit for the principle that Carlson remains good law. The Court does not find Defendants' criticism persuasive. The Foreman court accurately characterizes the authority on which it relies in attempting to correctly apply Egbert and Carlson. Defendants also criticized Hammack for the court's statement that the "analytical framework used in Abbasi remained unchanged by Egbert." 2023 WL 143312, at *3. But as the Court has already concluded, the two-step framework applied by the Hammack court remains good law. Accord Kidd v. Mayorkas, 645 F.Supp.3d 961, 967-68 (C.D. Cal. 2022) (reasoning that Egbert did not displace the existing two-step framework for evaluating Bivens claims).
d. Special Factors Inquiry
Even if this case did present a new context, none of the special factors identified by Defendants militate against providing a Bivens remedy here. Defendants contend in their briefs that the following three special factors support their challenge to the Bivens claim: (1) the availability of alternative remedies (i.e., the prison grievance system and Plaintiffs' FTCA claim), (2) Congress's failure to provide a damages remedy for deliberate indifference in the Prison Litigation Reform Act ("PLRA"), and (3) the risk of judicial interference in prison administration.
At the hearing on this matter, Defendants emphasized again the potential disruption to the functioning of the prison system that would be caused by this "expansion" of Bivens. The Court disagrees that application of Bivens in this case would constitute an expansion and, as discussed infra, the Carlson Court expressly addressed this issue in 1980.
Defendants' arguments are not persuasive. First, no alternative remedies appear to be available to these Plaintiffs. Although Defendants provide evidence that a prison grievance system is available to inmates, and was available to Feao, there is no evidence that the system is available to Plaintiffs, or could provide them with any remedy. And the Carlson Court expressly held that an FTCA claim is not a substitute for a Bivens action, but that Congress intended both remedies to be available to plaintiffs. See Carlson, 446 U.S. at 20, 100 S.Ct. 1468 (noting that when Congress amended the FTCA in 1974, the congressional comments accompanying the amendment stated that "this provision should be viewed as a counterpart to the Bivens case and its progenty" [sic] by creating complementary causes of action against the government and individual defendants).
At the hearing, Defendants argued that Mejia instructs that an FTCA claim can be an alternative to a Bivens claim. But on March 2, 2023, the Ninth Circuit issued an amended opinion in Mejia that removes this language.
Defendants' arguments regarding the passage of the PLRA also miss the mark. Defendants cite to Abbasi, in which the Supreme Court held that claims of alleged abuse of individuals detained shortly after the September 11 attacks constituted a new Bivens context despite "significant parallels" to Carlson, and that special factors counseled against an extension in that context. Id. at 1864. The Court noted that Congress had passed the PLRA approximately 15 years after Carlson was decided, and had not included "a standalone damages remedy against federal jailers" despite a specific opportunity to do so. The Court reasoned that, based on this inaction, "[i]t could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment." Id. (emphasis added). But this case does not involve another type of prisoner mistreatment—it involves the same type of mistreatment at issue in Carlson. Thus, the reasoning in Abbasi does not support Defendants' argument.
In fact, this reasoning suggests that the Abbasi Court understood Congress to have "had specific occasion to consider" the question of whether Carlson remedies were appropriate, see id., and to have made the decision to leave them in place.
Finally, while it is true that permitting Bivens claims against prison officials for failure to provide necessary medical care results in some judicial involvement in prison management, the Supreme Court has previously recognized that prison officials' responsibility to provide adequate medical care "ordinarily does not conflict with competing administrative concerns." Hudson v. McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (distinguishing cases alleging inadequate provision of medical care from claims of excessive force by prison officials). Moreover, Carlson addressed this concern, and concluded that it did not counsel against provision of a remedy. See 446 U.S. at 19, 100 S.Ct. 1468 (noting that qualified immunity "provides adequate protection" from the possibility that the need to defend against lawsuits might inhibit prison officials' performance of their official duties). This factor is therefore not a special factor that prior courts did not consider before extending a Bivens remedy.
Defendants have identified no other special factors that might counsel against a Bivens remedy in this case. Because the Court concludes that this is not a new Bivens context and, even if it was, none of the special factors identified by Defendants militate against such a remedy, the Court turns to the merits of Plaintiffs' Bivens claim.
2. Deliberate Indifference
Under the Eighth Amendment, prison doctors and medical staff may be liable for the unlawful infliction of cruel and unusual punishment where the inmate plaintiff establishes "unnecessary and wanton infliction of pain." Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). In the context of constitutionally deficient medical treatment, this requires the inmate to show "deliberate indifference to serious medical needs," which, in turn, consists of a two-part test. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Defendants move for summary judgment on the basis that Plaintiffs cannot satisfy the deliberate indifference prong.
Defendants concede that Feao's condition constituted a "serious medical need." See MSJ at 31. To defeat summary judgment on this issue, then, Plaintiffs must show both (1) "a purposeful act or failure to respond to [his] pain or possible medical need" and (2) the resulting harm. Jett, 439 F.3d at 1096. "Indifference 'may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.' " Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (en banc)).
"The requirement of deliberate indifference is less stringent in cases involving a prisoner's medical needs than in other cases involving harm to incarcerated individuals because '[t]he State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.' " McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (alteration in original) (quoting Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). Nonetheless, where the prison staff "inadvertent[ly]" or "negligent[ly]" "fail[s] to provide adequate medical care," the prisoner has not established an Eighth Amendment violation, and where "the harm is an 'isolated exception' to the defendant's 'overall treatment of the prisoner [it] ordinarily militates against a finding of deliberate indifference.' " Jett, 439 F.3d at 1096 (third alteration in original) (quoting McGuckin, 974 F.2d at 1059-60).
a. Dr. Pelton
Defendants argue that Dr. Pelton referred Feao to a cardiologist, and relied on Dr. Sklash to make recommendations regarding Feao's care, including referrals to sub-specialists if warranted. In their Opposition, Plaintiffs rely heavily on Dr. Lee's testimony regarding Dr. Pelton's failure to refer Feao to a transplant cardiologist, rather than a general cardiologist, and his failure to arrange for Feao to be seen by a heart transplant specialist every six months.
Dr. Lee attests that it is well-known throughout the medical field that a heart transplant patient needs specialized care, and opines that a general cardiologist like Dr. Sklash is not equipped to properly monitor a heart transplant recipient. Lee Decl. ¶ 50. Dr. Lee also attests that it is well-known that shortness of breath, fainting, dizziness, chest pain, and lower leg edema are all symptoms of organ rejection and other complications of heart transplants. Id. at ¶ 53. It is uncontroverted that Feao complained of these symptoms throughout his time at FCI Terminal Island, and told his providers multiple times that he believed those symptoms were signs of heart rejection. Dr. Pelton co-signed notes reflecting Feao's belief that his symptoms were a sign of heart rejection. See, e.g., Pelton Decl. ¶ 25. But after he co-signed a note from an October 2017 visit in which Feao reported shortness of breath for the last three days, Dr. Pelton concluded that the report of shortness of breath "was [. . .] not appreciably different than Mr. Feao's long-standing complaints of shortness of breath," despite the fact that Feao's prior complaints were of shortness of breath on exertion. Pelton Decl. ¶ 23. It is also uncontroverted that Feao complained of steadily worsening symptoms. As of March 14, 2018, Feao reported to Health Services that he was experiencing shortness of breath even while resting. Dr. Lee states that Feao needed emergency treatment at this point, Lee Decl. ¶ 60, but he was sent back to his unit instead. Dr. Pelton also co-signed that note, and relied on Feao's upcoming appointment with Dr. Sklash to address it instead of investigating himself.
Based on Dr. Lee's testimony, a reasonable jury could conclude that Dr. Pelton was deliberately indifferent in failing to send Feao to a transplant cardiologist for biannual care, either at the outset of his treatment or after Feao began to show signs of rejection. While Defendants are correct that "[t]ypically, a difference of opinion between a physician and the prisoner—or between medical professionals—concerning what medical care is appropriate does not amount to deliberate indifference, [. . .] that is true only if the dueling opinions are medically acceptable under the circumstances." Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019) (citations omitted). Dr. Lee attests that it is well known throughout the medical community that specialized care is required for transplant patients, and that general cardiologists cannot provide that specialized care. Drawing all reasonable inferences in Plaintiffs' favor, a jury could agree that Dr. Pelton's failure to refer Feao to an appropriate specialist was medically unacceptable. The fact that Feao was in fact referred to a cardiologist who did not specialize in the care of heart transplant patients does not absolve Dr. Pelton of his responsibility to ensure that Feao received appropriate care. Accord Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994) ("We decline to adopt a rule that in effect would exempt general practitioners from being found deliberately indifferent to a patient's serious medical needs as long as that general practitioner at some point refers the patient to a specialist, regardless of the extent of contact that general practitioner has with the patient.").
The Court is not persuaded, however, by Plaintiffs' argument that Dr. Pham's statement that "Patient will return to clinic in 6 months or earlier as needed" demonstrates that Dr. Pelton failed to provide recommended care. This statement, at the end of a two-page letter, may not have put Dr. Pelton on notice that Feao was supposed to see a transplant specialist every six months. Instead, the Court concludes that Dr. Pham's statement and Dr. Lee's opinion create a triable issue of fact on this claim.
In addition, Dr. Lee opines that Feao should have been transferred to a cardiac transplant center at least sometime between March 26, 2018, when the prospect of a transfer to a tertiary care center was first raised, and June 2018. Lee Decl. ¶ 67. Dr. Lee attests that Dr. Pelton should have investigated Feao's complaints of rejection-related symptoms and the adequacy of Dr. Sklash's treatment of those complaints. Id. at ¶ 70. The decision to cancel the request to transfer Feao to Loma Linda in March 2018 is evidence that doctors at SMMC also believed that Feao could be treated there as of March. While this evidence may weigh in Defendants' favor, a reasonable juror could still conclude, based on Dr. Lee's testimony, Feao's repeated complaints, Dr. Pelton's lack of experience with transplant patients, and the record of attempts to transfer Feao to a tertiary care center, that at this point at least, Dr. Pelton should have taken steps to ensure Feao was seen by an appropriate specialist. Plaintiffs have therefore demonstrated that a triable issue of fact remains as to whether Dr. Pelton was deliberately indifferent to Feao's serious medical needs. The Court DENIES Defendants' MSJ as to Plaintiffs' Bivens claim against Dr. Pelton.
b. Ponce
Defendants also seek summary judgment on Plaintiffs' Bivens claim against Ponce, on the basis that Ponce was not involved in Feao's medical care. Although the Court has previously ruled on a motion to dismiss that Plaintiffs had adequately alleged facts showing that the warden could be held liable for failure to provide adequate medical care, in response to Defendants' summary judgment motion, Plaintiffs have come forward with no evidence that Ponce was aware of any problems with Feao's care. Cf. Trap v. United States, No. CV 13-3-DMG (JPRx), 2017 WL 8793328, at *21 (C.D. Cal. Oct. 31, 2017) (noting the plaintiff's multiple complaints to prison officials regarding his medical conditions, pain, and inability to procure timely or adequate treatment, and his personal physician's alternative treatment recommendation). Moreover, although the Court concludes that Dr. Lee's opinion creates a triable issue of fact as to whether a medical practitioner like Dr. Pelton should or would have known that a heart transplant patient must be treated by a transplant cardiologist, Plaintiffs have presented no evidence on which a reasonable jury could decide that an individual with no medical training would have known that. They have likewise presented no evidence to show that Ponce was aware of the efforts to transfer Feao to a tertiary care center until she signed off on his transfer to Loma Linda in June 2018. The Court thus concludes that no reasonable jury would have an evidentiary basis to find that Ponce was deliberately indifferent to Feao's serious medical need. Defendants' MSJ as to Ponce is therefore GRANTED.
3. Qualified Immunity
For the defense of qualified immunity to apply, Dr. Pelton's conduct must not have been "clearly established" as unlawful. Plaintiffs bear the burden of "showing that the rights allegedly violated were clearly established." Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017), cert. denied sub nom. Shafer v. Padilla, 584 U.S. 1002, 138 S. Ct. 2582, 201 L.Ed.2d 295 (2018). A clearly established right cannot merely be implied by precedent, and plaintiffs may not defeat qualified immunity by describing violations of clearly established general or abstract rights outside "an obvious case." White v. Pauly, 580 U.S. 73, 137 S. Ct. 548, 551-52, 196 L.Ed.2d 463 (2017) (quoting Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)); see also Rivas-Villegas v. Cortesluna, 595 U.S. 1, 142 S. Ct. 4, 8, 211 L.Ed.2d 164 (2021) (per curiam) (the principles established by a case should not be "cast at a high level of generality"). Nonetheless, the standard does not "require a case directly on point for a right to be clearly established," so long as "existing precedent" places "the statutory or constitutional question beyond debate." Kisela v. Hughes, 584 U.S. 100, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (per curiam). In conducting the qualified immunity analysis, the Court "resolv[es] all disputes of fact and credibility in [Plaintiffs'] favor." Kirkpatrick v. County of Washoe, 843 F.3d 784, 788 (9th Cir. 2016).
At the time of Feao's treatment and death, it was clearly established that prison officials "violate the Constitution when they [. . .] choose a course of treatment that is "medically unacceptable under the circumstances." Sandoval v. Cnty. of San Diego, 985 F.3d 657, 679 (9th Cir.), cert. denied sub nom. San Diego Cnty. v. Sandoval, — U.S. —, 142 S. Ct. 711, 211 L. Ed. 2d 400 (2021) (quoting Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012)). Dr. Lee has provided evidence that the care provided to Feao was medically unacceptable, and that Dr. Pelton should have known that to be true. See Lee Decl. ¶¶ 72, 51-53. Indeed, the Eighth Circuit has previously held that denial of cardiac biopsies and catheterizations to an inmate who had previously had a heart transplant, among other instances of denial of care, would constitute an unconstitutional denial of care. See Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir. 1996) (affirming denial of summary judgment on the basis that the defendants' failure to provide recommended care to heart transplant patient could support finding of deliberate indifference). Because there is a triable issue of fact as to whether Dr. Pelton's chosen course of care was medically unacceptable, Dr. Pelton is not entitled to qualified immunity. The Court therefore DENIES Defendants' MSJ as to qualified immunity for Dr. Pelton.
B. FTCA Claim
The FTCA provides a limited waiver of the United States' sovereign immunity for injury . . . caused by the negligence or wrongful act or omission of any employee of the Government while acting in the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1). Here, California law governs the Court's analysis.
To prevail in an FTCA action for medical negligence, Plaintiffs must "produce[ ] sufficient evidence to allow the jury to infer that in the absence of the [Government's] negligence, there was a reasonable medical probability that [he] would have obtained a better result." Mayes v. Bryan, 139 Cal. App. 4th 1075, 1093, 44 Cal.Rptr.3d 14 (2006). The standard of care requires "that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." Veasley v. United States, 201 F. Supp. 3d 1190, 1200 (S.D. Cal. 2016) (quoting Mann v. Cracchiolo, 38 Cal. 3d 18, 36, 210 Cal.Rptr. 762, 694 P.2d 1134 (1985)). Expert testimony is required "to prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson." Johnson v. Superior Court, 143 Cal. App. 4th 297, 305, 49 Cal.Rptr.3d 52 (2006).
"The existing standard [for negligence] does not fault a medical professional for choosing among different methods that have been approved by the profession even if the choice later turns out to have been the wrong selection or not favored by other members of the profession." Veasley, 201 F. Supp. 3d at 1200 (quoting N.N.V. v. Am. Ass'n of Blood Banks, 75 Cal. App. 4th 1358, 89 Cal.Rptr.2d 885 (1999)). "Mere error of judgment, in the absence of a want of reasonable care and skill in the application of his medical learning to the case presented, will not render a doctor responsible for untoward consequences in the treatment of his patient . . . ." Id. (quoting Huffman v. Lindquist, 37 Cal. 2d 465, 234 P.2d 34 (1951)).
A. Standard of Care
Here, for the reasons already stated with respect to the deliberate indifference analysis, a reasonable jury could find that the BOP's course of treatment of Feao did not meet the standard of care. With respect to this claim, Defendants contend primarily that Dr. Lee is not qualified to testify regarding the standard of care applicable to Dr. Pelton because Dr. Lee is an interventional cardiologist and Dr. Pelton is a general practitioner. To the extent Defendants contend that Dr. Lee cannot testify regarding the standard of care applicable to a less-specialized doctor treating a patient whose illness is within Dr. Lee's specialty, the California Supreme Court rejected that argument in Mann v. Cracchiolo. In that case, the defendants argued that a neurosurgeon was not qualified to opine on the standard of care applicable to radiologists reading x-rays. See Mann v. Cracchiolo, 38 Cal. 3d 18, 38, 210 Cal.Rptr. 762, 694 P.2d 1134 (1985), overruled on other grounds by Perry v. Bakewell Hawthorne, LLC, 2 Cal. 5th 536, 213 Cal.Rptr.3d 764, 389 P.3d 1 (2017). The Court held that, to the contrary, "a neurosurgeon is obviously aware not only of the practice of his speciality [sic] but also the symptomology which leads other specialists to treat patients coming within his speciality and to refer patients to neurosurgeons." Id. at 38-39, 210 Cal.Rptr. 762, 694 P.2d 1134. The Court reversed the trial court's grant of summary judgment to the defendants. Similarly, in Lattimore v. Dickey, the trial court granted summary judgment on the basis that a doctor certified in family medicine and emergency medicine was not competent to testify about the standard of care applicable to general surgeons. The California Court of Appeal reversed, holding that the family practitioner's qualifications demonstrated sufficient skill and experience to be able to opine on the standard of care applicable to a doctor treating a patient experiencing internal bleeding or otherwise in need of immediate treatment. See Lattimore v. Dickey, 239 Cal. App. 4th 959, 970, 191 Cal.Rptr.3d 766 (2015).
This Court has also rejected the same argument in another case. See Trap, 2017 WL 8793328, at *36 (allowing evidence on a motion for summary judgment from a neurosurgeon regarding the standard of care applicable to a primary care doctor).
Although Dr. Lee's declaration does not specifically state that he is familiar with the standard of care for primary care providers or mid-level providers, he attests that "it is well known throughout the medical field" that a heart transplant patient needs specialized care and is at risk for various complications, including those suffered by Feao. Lee Decl. ¶¶ 51-52. Defendants' arguments regarding Dr. Lee's over-qualification go to the weight of his testimony, not its admissibility. See Lattimore, 239 Cal. App. 4th at 970, 191 Cal.Rptr.3d 766 ("Whether [expert's] knowledge in the[ ] [defendant practitioner's] areas would be sufficient to convince a trier of fact is irrelevant at this stage [summary judgment] of the proceedings"); Chadock v. Cohn, 96 Cal. App. 3d 205, 208, 157 Cal.Rptr. 640 (1979) ("[I]f a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of degree of his knowledge goes to the weight of his testimony rather than to its admissibility."). For the reasons set out supra, the Court concludes that a reasonable jury could find that the BOP's care for Feao fell below the standard of care.
B. Causation
If a jury finds for Plaintiffs on the issue of negligence, Plaintiffs must also prove that, in the absence of Defendants' negligence, there was a "reasonable medical probability that [Feao] would have obtained a better result." Mayes, 139 Cal. App. 4th at 1093, 44 Cal.Rptr.3d 14.
Dr. Lee attests, "with a high degree of medical certainty," that BOP's failure to provide Feao with the specialized care required for a heart transplant patient contributed to Feao's death. Lee Decl. ¶ 75. But BOP argues that Dr. Lee has failed to articulate specific reasons why BOP's failures caused Feao's death. BOP also maintains that Plaintiffs' own evidence shows that a heart transplant patient's average life expectancy is approximately eight to ten years from the time of the transplant, and that Feao died just under eight years after his heart transplant. Both arguments are unavailing.
According to Dr. Lee, bi-annual heart catheterizations, angiograms, and biopsies (if indicated) are necessary care for heart transplant patients. Lee Decl. ¶ 48. He also opines that, if Feao had been transferred to a cardiac transplant center in March 2018, he would have undergone a pacemaker implantation (which he did eventually undergo) as well as procedures specified for heart transplant patients, including cardiac catheterization, coronary angiography, and heart biopsy (which he did not undergo). Id. at ¶¶ 62-63. And Plaintiffs' evidence regarding a heart transplant patient's life expectancy merely indicates that Feao's death was within the range of expectations, not that Feao could not have been expected to live longer than he did had he received proper care. A reasonable jury could conclude, based on Dr. Lee's testimony, that BOP's failure to provide adequate care to Feao contributed to his untimely death.
Although Defendants argue in their Reply that Feao did receive a cardiac catheterization in November 2017 and an angiogram in April 2018, Defendants adduce no evidence that specifically answers Dr. Lee's opinion that the failure to provide regular, bi-annual catheterizations and angiograms contributed to Feao's death. Nor do Defendants adduce any evidence that the angiogram ordered for Feao, which was ordered specifically to diagnose a possible pulmonary embolism, would have showed evidence of CAV or other complications of a heart transplant. Defendants' argument in their brief does not undermine Dr. Lee's evidence. Even if it did, on Defendants' MSJ, it is Defendants' burden to show there is no dispute of fact, as opposed to a factual dispute.
Because Plaintiffs have demonstrated the existence of material factual disputes regarding all the elements of their FTCA claim, the Court DENIES Defendants' MSJ as to that claim.
V.
CONCLUSION
For the foregoing reasons, Defendants' MSJ is GRANTED as to Plaintiffs' Bivens claim against Ponce, but is otherwise DENIED. The parties shall meet and confer and, by no later than March 13, 2023, propose new dates and deadlines for the jury trial as to the Bivens claim and the court trial as to the FTCA claim. Thereafter, the Court will issue an amended Scheduling and Case Management Order.