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Stafford v. Carter

United States District Court, S.D. Indiana, Indianapolis Division

September 13, 2018




         This case arises out of a challenge to the medical care that inmates receive while incarcerated in Indiana Department of Corrections (“IDOC”) facilities. A class of Plaintiffs who suffer from chronic Hepatitis C infection (“HCV”) contends that IDOC's policies regarding HCV treatment have resulted in the withholding of effective treatment to the vast majority of HCV-infected inmates. Plaintiffs have raised three claims against three IDOC officials, (collectively, “Defendants”): Robert E. Carter, Jr., the Commissioner of IDOC, Dr. William VanNess, IDOC's Chief Medical Officer, [1] and Monica Gipson, R.N., IDOC's Director of Health Care Services. Plaintiffs contend that IDOC's treatment of individuals with chronic HCV violates the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. Plaintiffs have moved for summary judgment on their Eighth Amendment claim, and Defendants have cross-moved for summary judgment on all claims. For the reasons that follow, the Court GRANTS Plaintiffs' Motion as to liability on the Eighth Amendment claim, and DENIES Defendants' Cross-Motion on all claims.


         Evidentiary Objections

         Plaintiffs raise a number of objections to evidence cited by Defendants, which the Court considers before analyzing the substantive arguments in the cross-motions for summary judgment. This is necessary because the resolution of evidentiary objections impacts the scope of information that the Court can consider in deciding the cross-motions.

         A. Expert Testimony of Dr. Neil Fisher

         In their briefing in support of the cross-motions for summary judgment, both Plaintiffs and Defendants cite deposition testimony of Dr. Neil Fisher, the Corporate Medical Director for Quality Management and Pharmacy for Wexford Health Sources, Inc. (“Wexford”). [Filing No. 179-5 at 1.] Plaintiffs, however, object to certain of Defendants' cited portions of Dr. Fisher's testimony. [Filing No. 179 at 3.] Plaintiffs argue that these portions constitute expert opinion testimony, which Defendants were required to, but did not, disclose to Plaintiffs. [Filing No. 179 at 3-15 (citing Federal Rule of Civil Procedure 26(a)).] Defendants acknowledge that they never disclosed Dr. Fisher as an expert witness, but they contend that they were not required to do so. [Filing No. 180 at 6-8.]

         1. Federal Rule of Civil Procedure 26

         Under Fed.R.Civ.P. 26(a)(2)(A), “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” This disclosure, depending on the circumstances, must be accompanied either by a written report or a statement including the subject matter and a summary of the facts and opinions on which the witness is expected to testify. Fed.R.Civ.P. 26(a)(2)(B), (C). If a party fails to timely provide information required by Rule 26(a), “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The Seventh Circuit has held that the threat and availability of exclusion “put[s] teeth into the rule.” Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998).

         While Defendants acknowledge that they never disclosed Dr. Fisher as an expert witness, they argue that Rule 26 implicitly includes a disclosure exception in circumstances where a co-defendant has disclosed the requisite information. [Filing No. 180 at 6-8.] They contend that because Wexford properly disclosed Dr. Fisher as one of its expert witnesses, Defendants were not required to. [Filing No. 180 at 6-8.] Plaintiffs, on the other hand, stress that the language of Rule 26 creates no such exception. [Filing No. 179 at 7.] They also emphasize that the language of the Rule requires that a party must disclose a witness that “it”-meaning that party, not another party-may use at trial. [Filing No. 179 at 7.]

         The Court agrees with Plaintiffs that Rule 26 does not create an implicit “co-defendant” exception to the disclosure requirement. The Court declines to read such a broad exception into the plain language of the Rule, and, in any event, a Committee Note accompanying the 1993 amendment to Rule 37(c) confirms that no such exception is implied. In discussing what may constitute a harmless violation of Rule 26, the Note identifies as a type of violation “the failure to list as a trial witness a person so listed by another party.” Advisory Committee Note, Fed.R.Civ.P. 37(c). In other words, the Note contemplates that a co-defendant's non-disclosure would be a violation of Rule 26.

         Defendants argue that, notwithstanding the Rule's plain language, the Seventh Circuit created such an exception in S.E.C. v. Koenig, 557 F.3d 736 (7th Cir. 2009). In Koenig, the defendant hired an expert witness who prepared a report and was subject to deposition. Koenig, 557 F.3d at 743. The defendant ultimately did not present the expert's report or testimony at trial, but plaintiff SEC introduced the testimony via a video deposition. Id. The defendant argued that the district court erred in allowing that testimony to be introduced, because the SEC did not include the expert on its list of potential witnesses. Id. The Seventh Circuit disagreed. Id. at 744. The court stressed that the Rule “facilitates preparation for expert testimony, ” and that “[d]isclosure…permits lawyers to ask for other experts' views on the soundness of the conclusions reached by the testimonial experts.” Id. According to the court, none of those considerations required notice regarding the SEC's desire to call the expert witness, because the defendant's legal team had the report, had been at the deposition, “and for all [the court knows] had a platoon of non-testimonial experts analyze everything [the expert] wrote and said…” Id. Relying heavily on the fact that the disclosure had been made by the adverse party, the court concluded that whether an adverse party “wants to question an expert whose identity has already been revealed is not a subject within the scope of Rule 26(a)(2).” Id. at 744.

         The Court does not read Koenig as establishing the broad exception advocated by Defendants. Koenig's reasoning relied heavily on the adverse status of the disclosing and non-disclosing parties, stressing that the purpose of Rule 26 is to allow lawyers “who are not themselves experts in…bodies of specialized knowledge…to prepare intelligently for trial, ” and to allow them to “ask for other experts' views on the soundness of the conclusions reached by the testimonial experts.” Koenig, 557 F.3d at 744. The Seventh Circuit reasoned that these concerns are not implicated when an expert report is used by the originating party's adversary, because the originating party always has notice and the opportunity to scrutinize the findings of its own expert. Here, of course, the situation is not on all fours with Koenig. Defendants are not seeking to introduce expert testimony generated by Plaintiffs themselves, but instead are seeking to introduce expert testimony originated by a co-defendant.

         In this case, the fact that the expert testimony was disclosed by a co-defendant matters, and it highlights why the court's conclusion in Koenig does not extend to these circumstances. While the Koenig court concluded that concerns regarding the ability to prepare intelligently for trial and to ask for other expert's views were not implicated, they are squarely implicated here. Several months prior to the close of discovery, Wexford (the party that disclosed Dr. Fisher, its own employee, as an expert witness) reached a settlement agreement with Plaintiffs. [Filing No. 142 at 1.] Therefore, while discovery was ongoing, both Defendants and Plaintiffs had every indication that Wexford would no longer be a defendant in the event that this case proceeded to trial. [Filing No. 145 (setting close of discovery at March 16, 2018); Filing No. 142 at 1 (January 23, 2018 settlement conference in which agreement was reached).] Plaintiffs contend that, based on the settlement agreement and the fact that Defendants gave no indication that they intended to rely on the testimony of a putative non-party's expert witness, they conducted no further discovery into Dr. Fisher's background, opinions, positions, or credibility. [Filing No. 179 at 11.] The Court declines to extend the holding in Koenig to these dissimilar facts. And, based upon the text of the Rule and the Advisory Committee Note cited above, the Court concludes that Defendants' failure to disclose Dr. Fisher as an expert witness constitutes a violation of Rule 26.

         2. Exclusion under Federal Rule of Civil Procedure 37

         Rule 37(c)(1) makes exclusion of the witness the presumed remedy, except where the failure to disclose is “substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1); Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996). Defendants argue that any failure to disclose in this instance was harmless, because (1) Dr. Fisher is disclosed on both Plaintiffs' and Defendants' witness lists, and (2) the settlement agreement requires that Wexford furnish witnesses for deposition and trial. [Filing No. 180 at 8.] Plaintiffs argue that they were harmed by the failure to disclose because they had no reason to scrutinize the testimony of a putative non-party's expert witness, and they therefore did not obtain any rebuttal reports or conduct any further investigation as to Dr. Fisher.

         The burden to show that non-disclosure was harmless is on the party who failed to disclose the relevant witness. See Finley, 75 F.3d at 1230. “A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose.” David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). Rather, several factors should guide the Court's consideration: (1) unfair surprise or prejudice to the opposing party; (2) the offending party's opportunity to cure such prejudice; (3) likelihood of trial disruption; and (4) any bad faith motivating the offending party's tardy disclosure. Id.; see also McAtee v. Buca Restaurants, Inc., 2011 WL 6016648, at *3 (S.D. Ind. Dec. 2, 2011).

         In the typical case, a defendant's failure to disclose an expert witness previously identified by another defendant may well be harmless. See Koenig, 557 F.3d at 744. But in this case, Plaintiffs contend that they were harmed by the failure, because prior to the close of discovery, the parties had every indication that Wexford would not proceed to trial. Plaintiffs contend that they proceeded with discovery based on that settlement, and therefore did not conduct rebuttal discovery as to expert testimony by Dr. Fisher. Defendants seem to argue that Plaintiffs should have proceeded with discovery under the assumption that all of Wexford's previously disclosed expert witnesses would be used by the remaining defendants. Of course, such an assumption would generally place plaintiffs under a significant burden to conduct expensive and time-consuming expert discovery that may prove unnecessary or irrelevant. And in this case, such a requirement would undermine much of the litigation efficiency that weighed in favor of settlement in the first place. While Dr. Fisher appears on both Plaintiffs' and Defendants' witness lists, he is not disclosed as an expert witness, and his appearance as a lay witness would be expected, given his status as Wexford employee. And although the settlement agreement requires Wexford to participate in any ongoing discovery, it only specifies that Wexford “furnish witnesses for deposition” and “cooperate in good faith with future and ongoing discovery requests.”

         Quite simply, when the settlement became known, Defendants could have avoided any harm by notifying Plaintiffs that they nonetheless intended to utilize the testimony of Wexford's expert witnesses. Defendants have not shown that their failure to disclose was substantially justified or harmless, and the proper remedy under Rule 37 is exclusion of the “expert” portions of Dr. Fisher's testimony, both for purposes of these Motions and at trial.[2]

         Having concluded that exclusion of the expert testimony is appropriate, the Court must determine which statements are subject to exclusion. The parties appear to agree that Dr. Fisher has provided both lay and expert testimony. Federal Rule of Evidence 701 governs the admissibility of lay witness testimony, which, “as compared with opinions and inferences of experts[, ] may not be based on scientific, technical, or other specialized knowledge within the scope of [Federal Rule of Evidence] 702.Tribble v. Evangelides, 670 F.3d 753, 758-59 (7th Cir. 2012), as amended (Feb. 2, 2012). Lay opinion testimony “most often takes the form of a summary of firsthand sensory observations and may not provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events.” Id. (internal quotation and citation omitted). Federal Rule of Evidence 702 addresses expert opinion testimony, which “results from a process of reasoning which can be mastered only by specialists in the field.” United States v. Christian, 673 F.3d 702, 708-09 (7th Cir. 2012). Expert opinion “need not be based on first-hand knowledge of the facts of the case. It brings to an appraisal of those facts a scientific, technological or other specialized knowledge that the lay person cannot be expected to possess.” U.S. v. Conn, 297 F.3d 548, 554 (7th Cir. 2002).

         Plaintiffs identify fourteen of Defendants' statements of material fact as being supported only by Dr. Fisher's expert testimony, and they argue that these statements must therefore be excluded from consideration. [Filing No. 179 at 3-5.] Defendants do not offer specific argument as to any individual statements, instead contending generally that Dr. Fisher's expert testimony should not be excluded. The Court declines to exclude Defendants' statement of fact 104, as the Court concludes that it is a statement of lay witness knowledge, and not an expert opinion. [See Filing No. 174 at 21 (“Dr. Fisher is not aware of any state that is following AASLD guidance without a level of prioritization.”).]

         But the Court concludes that thirteen of the statements identified by Plaintiffs should be excluded as expert opinion testimony, as they are based upon the sort of specialized medical knowledge, broad generalizations, and abstract conclusions that are all hallmarks of expert testimony. See, e.g., Banister v. Burton, 636 F.3d 828, 832 (7th Cir. 2011); Walsh v. Chez, 583 F.3d 990, 992-94 (7th Cir. 2009). The following statements are therefore excluded:

• “35. A small amount of scar tissue in the liver does not affect the liver's function. It's a large organ. With extensive fibrosis, which leads to cirrhosis when there's extensive scarring in the liver, the impairment of the liver at that time will cause clear issues with the body.” [Filing No. 174 at 7 (cited by Plaintiffs at Filing No. 179 at 4).]

• “36. Severe extrahepatic manifestations in patients with chronic HCV are rare.” [Filing No. 174 at 7 (cited by Plaintiffs at Filing No. 179 at 4).]

• “37. One study showed that over a twenty year period, 15.3 percent of patients who were staged at Fibrosis level 0 or 1 progressed to state 3 or 4.” [Filing No. 174 at 7 (cited by Plaintiffs at Filing No. 179 at 4).]
• “42. Treatment for patients with Hepatitis C includes monitoring, patient education, evaluation by clinicians, and laboratory analysis.” [Filing No. 174 at 8 (cited by Plaintiffs at Filing No. 179 at 4).]
• “43. Use of a DAA to treat chronic HCV is not appropriate in all circumstances because of contraindications, or other reasons, why it should not be utilized. Those additional factors can include: allergic reactions, pregnancy, patients who could not complete treatment before their release date, patients with a life expectancy of less than 18 months, compliance, IV drug and alcohol use, and tattoos.” [Filing No. 174 at 8 (cited by Plaintiffs at Filing No. 179 at 4).]
• “101. The AASLD guidance is basically saying that all individuals should be treated [with DAAs] except for small exceptions. However, there are always individual circumstances where a treatment guideline, which is meant to give guidance, may not be applicable to an individual patient.” [Filing No. 174 at 20 (cited by Plaintiffs at Filing No. 179 at 4).]
• “102. Likewise, the standard of care is standard of care, and it should apply to different environments, but there may be different influences of why the care would be different in a different environment. Each individual case is different. So guidelines guide general treatment, they don't guide the course for any one individual. You don't treat according to what a guideline says. You treat…according to what the individual's circumstances is. It's [sic] individual clinical decisions. Because, every patient case is unique and different, and that's part of the considerations of the FBOP guidance that each case is unique.” [Filing No. 174 at 20 (cited by Plaintiffs at Filing No. 179 at 4).]
• “103. The AASLD and FBOP are among many guidelines regarding the treatment of HCV. There are also guidelines from the European Association of the Study of Liver Disease, the World Health Organization, and others. Each guideline views HCV a little bit differently, as whenever you get a committee together, they will look at the data somewhat differently and may come up with a different guideline based on it.” [Filing No. 174 at 20 (cited by Plaintiffs at Filing No. 179 at 5).]
• “105. Fisher would not recommend a blanket policy of treating all offenders who have chronic Hepatitis C, except those excluded from the AASLD guidance, because each individual case is different[, ] and there may be other issues with therapy.” [Filing No. 174 at 21 (cited by Plaintiffs at Filing No. 179 at 5).]
• “107. In evaluating the standard of care, a consideration is what the community is actually doing, which would include reviewing prioritization criteria used nationwide. Prioritizing treatment based on APRI score is used nationwide and has not been developed solely by Indiana.” [Filing No. 174 at 21 (cited by Plaintiffs at Filing No. 179 at 5).]
• “108. Dr. Fisher believes that the standards and procedures currently in place in Indiana are consistent with the applicable standard of care, based upon HCSD 3.09 and the prioritization guidance from the Federal Bureau of Prisons.” [Filing No. 174 at 21 (cited by Plaintiffs at Filing No. 179 at 5).]
• “109. All offenders in IDOC identified as HCV antibody positive are being treated…by being seen regularly, chronic care clinics, having blood work monitored, being educated about their disease…” [Filing No. 174 at 21 (cited by Plaintiffs at Filing No. 179 at 5).]
• “110. Chronic HCV is influenced by both static and modifiable factors, which permit the disease to be managed by changes in patient behavior through monitoring and counseling. Monitoring, patient education, and discussion of risk strategies are all treatment for HCV.” [Filing No. 174 at 21-22 (cited by Plaintiffs at Filing No. 179 at 5).]

         These statements are excluded for the purposes of the cross-motions for summary judgment and all subsequent proceedings, and any expert opinion testimony by Dr. Fisher is excluded in any subsequent proceedings.

         B. Expert Testimony of Dr. William VanNess

         Plaintiffs also move to exclude the expert testimony of Dr. William VanNess, IDOC's Chief Medical Officer, on the basis that Defendants never disclosed him as an expert witness. See Fed.R.Civ.P. 26(a), 37(c)(1). Defendants respond that they are not seeking to introduce any expert testimony by Dr. VanNess, and that the statement of material fact identified by Plaintiffs does not constitute expert testimony. The challenged statement is as follows:

Of patients with chronic HCV, 10 to 20 percent over 20 to 30 years may well develop cirrhosis, and so, again, the other's [sic] don't. They get no sequelae and may die of a heart attack or a stroke or something else over 20 or 30 years and not develop any cirrhosis. So, in my mind the key is to be able to evaluate the patient to know when to intervene with treatment, not to treat everybody, but to intervene at the appropriate time.

[Filing No. 174 at 15 (cited by Plaintiffs at Filing No. 179 at 4).] Defendants contend that this statement does not constitute an expert opinion because it is “a recitation of a generally accepted statistic, ” and because a lay person knows that “over a twenty to thirty year period a person may die of a heart attack, stroke, or something other than Hepatitis C.” [Filing No. 180 at 6.] They also argue that the last portion of the statement is not expert testimony, because it concerns only Dr. VanNess's “use of these facts in determining his approach toward HCSD 3.09.” [Filing No. 180 at 6.]

         The Court agrees with Plaintiffs that this statement constitutes expert testimony. The first portion of this statement is based on applying to the facts of this case “an appraisal of those facts a scientific, technological or other specialized knowledge that the lay person cannot be expected to possess.” U.S. v. Conn, 297 F.3d 548, 554 (7th Cir. 2002). While the statistic cited by Dr.

         VanNess may be widely accepted in the medical field, lay persons certainly would not be expected to possess that specialized knowledge. And that testimony depends on broad generalizations regarding the progression of Hepatitis C and abstract conclusions regarding its treatment. See Tribble, 670 F.3d at 758 (“Broad generalizations and abstract conclusions are textbook examples of opinion testimony.”). Defendants acknowledge that Dr. VanNess may only provide lay opinion testimony, and this statement does not fall within that characterization. It is therefore excluded.

         C. Miscellaneous Evidentiary Objections

         Plaintiffs object to Defendants' statement of material fact number six on the basis that it constitutes inadmissible hearsay. [Filing No. 179 at 2.] That statement is as follows: “During a September 2017 meeting between Wexford and IDOC, Dr. Fisher and John Dallas told IDOC that ‘we feel like we should treat more offenders at this point,' which Dr. VanNess approved of.” [Filing No. 174 at 3.] Defendants argue that this statement is not hearsay, because it is not being introduced to prove the truth of the matter asserted, but rather, to demonstrate its effect on the listener, Dr. VanNess. The Court agrees that, to the extent that Defendants seek to introduce the quote within that statement for the truth of the matter it asserts, it is inadmissible hearsay under Federal Rule of Evidence 802. To the extent that they seek to introduce the statement for another purpose, the Court will evaluate it at that juncture.

         Plaintiffs object to two of Defendants' statements of material fact as being inadmissible, contending that they are not based upon the personal knowledge of the speaker and lack foundation. [Filing No. 179 at 2.] Defendants respond that those statements are admissible, because a person's understanding is something within his own personal knowledge. [Filing No. 180 at 4-5.] Those statements are as follows:

• “8. Dr. Van Ness's understanding is that Wexford nevertheless began treating more offenders with DAAs.” [Filing No. 174 at 3.]
• “20. Plaintiff Douglas Smith understands that the policy grants authority to prescribe DAA medications for HCV to the medical provider.” [Filing No. 174 at 5.]

         Federal Rule of Evidence 602 states that a “witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed. R. Evid. 602. As to the first statement, to the extent that it is being introduced to show that Wexford actually was treating more inmates, Defendants offer no evidence as to how Dr. VanNess came to that understanding or whether he had any actual knowledge of what occurred. See Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723, 730 (7th Cir. 2014) (upholding exclusion of statement that it was a witness's “understanding ... [that] promises [were] made to support this bill[, ]” and concluding that “[n]ot only is that comment an out-of-court statement offered to prove the truth of the matter asserted; the underlying sentiment is not based on personal knowledge.”); Maier v. Lucent Techs., Inc., 120 F.3d 730, 737 (7th Cir. 1997) (upholding exclusion of testimony based on witness's “understanding” where there was no evidence of underlying personal knowledge). It is Defendants' burden to introduce evidence sufficient to show personal knowledge, and they have not done so here. The same is true as to the second statement. Those statements, therefore, are both excluded.


         Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not required to “scour every inch of the record” for evidence that is potentially relevant to the ...

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