United States District Court, S.D. Indiana, Terre Haute Division
Louis P. Fromer, Plaintiff,
Bobbi Riggs and Mary Chavez, Defendants.
Jane Magnus-Stinson, Chief Judge
Louis Fromer alleges in this action that while he was
incarcerated at the Wabash Valley Correctional Facility
(“Wabash Valley”), Defendants Dr. Mary
Chavez and Nurse Bobbi Riggs were deliberately indifferent to
his serious medical needs in violation of the Eighth
Amendment to the United States Constitution when they ignored
his repeated complaints of pain. Specifically, Mr.
Fromer's claims center on his complaints of pain in his
back, knee, and hand, and the denial of his repeated requests
for medication to treat that pain. Defendants moved for
summary judgment on Mr. Fromer's claims, [Filing No.
90], but Dr. Chavez subsequently withdrew her motion,
[Filing No. 163]. Nurse Riggs' Motion for
Summary Judgment remains pending and, additionally, Mr.
Fromer has filed a Motion to Exclude the Medical
Defendants['] Expert Report, [Filing No. 93],
and a Motion for Confirmation, [Filing No. 140]. Mr.
Fromer's motions and Nurse Riggs' Motion for Summary
Judgment are now ripe for the Court's decision.
Court first considers Mr. Fromer's Motion for
Confirmation. In his motion, Mr. Fromer requests that the
Court confirm whether it received documents that he attempted
to file through the librarian at the Indiana State Prison
where he is currently incarcerated, including exhibits, a
declaration, and his “opposition to sum. Judgment brief
and facts in dispute.” [Filing No. 140 at 1.]
Mr. Fromer outlines issues he has had with filing documents
while incarcerated, and requests that if the Court has not
received the documents it give him permission to mail his
documents to the Court rather than using the E-filing system.
[Filing No. 140 at 1.]
Court GRANTS Mr. Fromer's Motion for
Confirmation to the extent that it confirms that it has
received the following documents related to Nurse Riggs'
Motion for Summary Judgment: (1) Mr. Fromer's Submission
of Exhibits, filed on January 22, 2019, [Filing No.
139]; (2) Mr. Fromer's Memorandum Brief in
Opposition to Defendant Dr. Mary Ann Chavez and Barbara Riggs
RN, Motion for Summary Judgment, filed on February 27, 2019,
[Filing No. 150]; (3) the Declaration of Louis P.
Fromer, filed on February 27, 2019, [Filing No.
151]; (4) the Evidence Declaration of Louis P. Fromer,
filed on February 27, 2019, [Filing No. 152]; and
(5) Mr. Fromer's Statement of Material Facts in Dispute,
filed on February 27, 2019, [Filing No.
Court notes, however, that Mr. Fromer referred to multiple
documents in his response brief that he did not file with the
Court. On March 15, 2019, the Magistrate Judge held a
telephonic status conference with the parties and ordered Mr.
Fromer to produce the missing documents by March 22, 2019.
[Filing No. 162.] Mr. Fromer has not filed the
documents to date, so the Court will not consider statements
that are only supported by those documents. [SeeFiling
No. 162 at 2 (setting forth the documents to which Mr.
Fromer refers, but which he has failed to submit to the Court
for its consideration).]
Motion to Exclude the Medical Defendants' Expert
the Court will consider Mr. Fromer's Motion to Exclude
the Medical Defendants['] Expert Report. [Filing No.
rely upon an expert report from Defendant Mary Ann Chavez,
who is an osteopathic physician and who provided much of the
medical treatment to Mr. Fromer that is the subject of this
lawsuit. Dr. Chavez concludes in her Expert Report as
The medical care and treatment Louis Fromer received for his
hand, back, and knee complaints met or exceeded the standard
of care appropriate under the circumstances. X-rays of Mr.
Fromer's lumbar spine have only shown very mild
degenerative changes. X-rays of his right knee in December
2015 were normal. X-rays of Mr. Fromer's right hand
showed: (1) no acute osseious abnormality or significant
degenerative change; and (2) internal fixation of the 2nd
digit metacarpal without complicating features. Mr. Fromer
was ultimately sent to a surgeon to remove hardware in his
hand that was placed during a prior surgery.
With normal x-rays, there was no indication for Mr. Fromer to
be receiving narcotic pain relievers such as Percocet or
Methadone. Mr. Fromer was provided knee sleeves, a wrist
brace, and appropriate pain medications. In my opinion, Mr.
Fromer was drug-seeking, as his subjective complaints of pain
did not match the objective evidence.
[Filing No. 100-1 at 1.] Dr. Chavez sets forth her
opinions more fully in her Declaration filed with
Defendants' Motion for Summary Judgment. [Filing No.
Motion to Exclude, Mr. Fromer argues that “Dr. Chavez
is the defendant in this action which automatically creates a
bias and prejudice towards the plaintiff”; that because
he did not have an MRI on his back and knee, “it cannot
be said with any certainty expert or not as to what damage
exists or does not exist regarding the knee and back
issues”; and that Dr. Chavez does not indicate the
nature of her medical expertise and “is not qualified
as to having the same or close to the same knowledge and
education as that of an orthopedic surgeon or
specialist.” [Filing No. 93 at 1-2.] Mr.
Fromer relies upon Rowe v. Gibson, 798 F.3d 622 (7th
Cir. 2015), for the proposition that the Seventh Circuit
Court of Appeals has recognized “the harm in relying on
an expert who in fact is also the defendant in the
matter….” [Filing No. 93 at 2.]
argue in response that there is not a per se rule
prohibiting a defendant from providing expert testimony.
[Filing No. 100 at 4.] They distinguish
Rowe, and argue that Mr. Fromer has not pointed to
any opinion in Dr. Chavez's expert report that is
implausible. [Filing No. 100 at 5.] Defendants also
contend that Dr. Chavez's opinions are supported by the
radiology reports and other medical records, and that Dr.
Chavez need not be an orthopedic specialist “because
she is not testifying regarding the standard of care for
orthopedic specialists.” [Filing No. 100 at
reply, Mr. Fromer takes issue with Dr. Chavez relying on
x-ray reports rather than on the actual x-ray films, arguing
that the x-ray reports “are nothing more than a 1
paragraph, non-detailed synopsis of an average x-ray.”
[Filing No. 103 at 2.] He sets forth additional
perceived shortcomings in Dr. Chavez's expert report, and
contends that “along with the bias and swayed opinions
and feelings toward the Plaintiff, it is best that she is not
allowed to preside as an expert witness in these
proceedings.” [Filing No. 103 at 2-3.]
Rule of Evidence 104 instructs that “[t]he court must
decide any preliminary question about whether a witness is
qualified…or evidence is admissible.”
Fed.R.Evid. 104(a). Federal Rule of Evidence 702 provides
that expert testimony is admissible if: “(a) the
expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony
is based on sufficient facts or data; (c) the testimony is
the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the
facts of the case.” Fed.R.Evid. 702. A trial judge
“must determine at the outset…whether the expert
is proposing to testify to (1) scientific knowledge that (2)
will assist the trier of fact to understand or determine a
fact in issue. This entails a preliminary assessment of
whether the reasoning or methodology underlying the testimony
is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in
issue…. Many factors will bear on the
inquiry….” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-92 (1993).
Court has a “gatekeeping obligation” under Rule
702, and “must engage in a three-step analysis before
admitting expert testimony. It must determine whether the
witness is qualified; whether the expert's methodology is
scientifically reliable; and whether the testimony will
‘assist the trier of fact to understand the evidence or
to determine a fact in issue.'” Gopalratnam v.
Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017)
(quoting Myers v. Ill. Cent. R.R. Co., 629 F.3d 639,
644 (7th Cir. 2010)). Put another way, the district court
must evaluate: “(1) the proffered expert's
qualifications; (2) the reliability of the expert's
methodology; and (3) the relevance of the expert's
testimony.” Gopalratnam, 877 F.3d at 779.
Seventh Circuit in Rowe criticized the use of a
defendant as an expert witness, stating:
[T]he judge erred…by relying on a defendant...as the
expert witness. There are expert witnesses offered by parties
and neutral (court-appointed) expert witnesses, but
defendants serving as expert witnesses? - and in cases in
which the plaintiff doesn't have an expert witness
because he doesn't know how to find such a witness and
anyway couldn't afford to pay the witness? And how could
an unrepresented prisoner be expected to challenge the
affidavit of a hostile medical doctor (in this case really
hostile since he's a defendant in the plaintiff's
suit) effectively? Is this adversary procedure?
Rowe, 798 F.3d at 630.
Chavez's Expert Report deals primarily with her own care
of Mr. Fromer, which is no longer an issue at this juncture
since Dr. Chavez has withdrawn her Motion for Summary
Judgment. [Filing No. 163.] While Dr. Chavez also
discusses Nurse Riggs' treatment of Mr. Fromer, the Court
need not rely, and has not relied, on Dr. Chavez's expert
opinion regarding that care in considering Nurse Riggs'
Motion for Summary Judgment as discussed below. Accordingly,
the Court DENIES Mr. Fromer's Motion to
Exclude at this time, but without prejudice to Mr. Fromer
re-filing an appropriate motion in advance of trial.
for Summary Judgment
the Court considers Nurse Riggs' Motion for Summary
Summary Judgment Standard
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. SeeFed. 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.
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. Hampton v. Ford Motor
Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words,
while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not outcome
determinative. Harper v. Vigilant Ins. Co., 433 F.3d
521, 525 (7th Cir. 2005). Fact disputes that are irrelevant
to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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. Johnson v. Cambridge Indus.,
325 F.3d 892, 901 (7th Cir. 2003). 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. Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence
or make credibility determinations on summary judgment
because those tasks are left to the fact-finder.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011). The Court need only consider the cited
materials, Fed. R. Cv. 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
summary judgment motion before them.” Johnson,
325 F.3d at 898. Any doubt as to the existence of a genuine
issue for trial is resolved against the moving party.
Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th
Statement of Facts
following factual background is set forth pursuant to the
standards detailed above. The facts stated are not
necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light most favorable to
“the party against whom the motion under consideration
is made.” Premcor USA, Inc. v. American Home
Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
Mr. Fromer's Medical Care Prior to Incarceration at
February 28, 2011, Mr. Fromer saw Dr. Richard Jackson at
Greenwood Orthopedics for complaints of right hand pain for
ten years. [Filing No. 90-4 at 1-3.] Mr. Fromer
reported that he was involved in a fight in 2000 and used
that hand to punch, which caused pain and fractures.
[Filing No. 90-4 at 1.] He also reported a prior
right index finger surgery with pin fixation in March 2000.
[Filing No. 90-4 at 1.] Dr. Jackson assessed a
fracture malunion and pain due to inflammation and
misalignment. [Filing No. 90-4 at 2-3.] His
treatment plan included home exercises and they discussed
surgery. [Filing No. 90-4 at 2.] Mr. Fromer
understood that his pain may not subside after surgery, but
he wished to proceed. [Filing No. 90-4 at 2-3.]
March 30, 2011, Mr. Fromer underwent a right
osteotomy with repositioning of the second right
metacarpal. [Filing No. 90-4 at 4-5.] He saw Dr.
Jackson on April 13, 2011 for a follow-up. [Filing No.
90-4 at 4-5.] X-rays showed the hardware was
well-aligned and Dr. Jackson prescribed Tramadol as needed
for pain. [Filing No. 90-4 at 5.] Mr. Fromer had
additional follow-ups and continued to complain of pain.
[SeeFiling No. 90-4 at 6-9 (reflecting May 12, 2011
and June 3, 2011 follow-up visits).] On July 7, 2011, Dr.
Jackson recommended surgery to remove the previously inserted
plate and to possibly insert a bone graft. [Filing No.
90-4 at 10-11.]
14, 2011, Mr. Fromer underwent surgery to remove the plate
and insert a bone graft. [Filing No. 90-4 at 12.]
X-rays after the surgery showed good alignment of the bone.
[Filing No. 90-4 at 13.] At an August 22, 2011
follow-up appointment, Mr. Fromer advised that he still had
discomfort, but that it had improved greatly. [Filing No.
90-4 at 14.] Mr. Fromer again complained of pain at a
September 23, 2011 follow-up appointment, and at a January
13, 2012 appointment Dr. Jackson explained that the plate may
need to be removed in the future, but he did not recommend
removal at that time. [Filing No. 90-4 at 16-20.] At
the January 13, 2012 appointment, Mr. Fromer also complained
of right knee pain, although x-rays obtained that day were
normal. [Filing No. 90-4 at 18-20.] Upon examination
Mr. Fromer had full range of motion with patellofemoral
crepitation. Dr. Jackson recommended an exercise
program focusing on quad strengthening and an MRI to rule out
a torn meniscus. [Filing No. 90-4 at 20.] There is
nothing in Mr. Fromer's medical records that reflects
that Dr. Jackson recommended a total knee replacement.
[Filing No. 90-4.]
Mr. Fromer's Medical Care at Wabash Valley
Fromer first arrived at Wabash Valley in 2013, was then
housed at the Jerome Combs Detention Center, and then
returned to Wabash Valley in December 2015. [Filing No.
90-4 at 21; Filing No. 151 at
1-2.] On December 22, 2015, Mr. Fromer had
x-rays of the lumbar spine, which showed mild L1-L2 disc
degeneration. [Filing No. 90-4 at 24.] On December
28, 2015, x-rays of his right knee were taken due to Mr.
Fromer complaining of worsening pain and difficulty
ambulating. [Filing No. 90-4 at 25.] The x-rays
indicated “no acute fracture of dislocation. Joint
spaces are normal. No. effusion. Soft tissues are
unremarkable.” [Filing No. 90-4 at 25.]
January 17, 2016, Mr. Fromer received an open patella knee
brace. [Filing No. 90-4 at 26.] He
completed Request for Healthcare
(“RFHC”) 229159 on January 22, 2016, in
which he stated:
I was told after they took my x-rays that I would be given
pain medication and be put on the computer for a bottom bunk.
I received a knee brace and was told my back x-rays were
degenerative. I am on a bottom bunk as of yesterday but
don't want to get kicked off. My knee hurts very bad and
was getting worse jumping up top.
[Filing No. 90-4 at 27.]
February 4, 2016, Mr. Fromer saw Nurse Riggs in response to
RFHC 229159. [Filing No, 90-4 at 28.] Nurse Riggs reviewed
the knee x-rays with Mr. Fromer and informed him that they
were normal. [Filing No. 90-4 at 28.] Mr. Fromer
stated he was told prior to incarceration that he needed a
total knee replacement and that he needed something for pain
because he had been would not be prescribing Lortab,
Percocet, or Methadone. [Filing No. 90-4 at 28.]
According to Nurse Riggs, medications such as Lortab,
Percocet, and Methadone are generally not prescribed in
prison unless absolutely necessary because of their high risk
of diversion and abuse. [Filing No. 90-5 at 2.]
Additionally, as a Registered Nurse, Nurse Riggs cannot
prescribe medications, form diagnoses, or formulate treatment
plans. [Filing No. 90-5 at 3.]
Holleman, an inmate who lived with Mr. Fromer for
approximately a year, states that Mr. Fromer requested that
Corizon obtain his outside medical records on February 10,
2016, that Mr. Fromer did not receive Tylenol in February
2016, and that Mr. Holleman had to assist Mr. Fromer in
writing the requests because of the pain in his hand.
[Filing No. 139.]
February 17, 2016, Mr. Fromer submitted RFHC 223928, in which
he stated “I need [Wabash Valley] to obtain my records
about my knee from Dr. Richard Jackson at Greenwood
orthopedics at Community hospital south. He told me it needed
replacement. But I was to (sic) young. I was on Pain
Management for my back, Hand (Jackson did surgery) and my
knee. [Wabash Valley] says x-rays normal on knee but
haven't addressed my pain issues for all. Back, knee and
hand hurt all the time. Commissary pain rel[ie]ver
doesn't help!” [Filing No. 90-4 at 30.]
Nurse R. Robinson wrote a response on RFHC 223928 stating
“12/18/15 you were seen on MD sick call. MD noted you
had range of motion to knee, @ times painful. X rays ordered.
Tylenol prescribed.” [Filing No. 90-4 at 30.]
Fromer submitted RFHC 223980 four days later, on February 21,
2016, stating “I never received any Tylenol. X-rays
taken by you say nothing is wrong with my knee. I've been
told different by World Renowned Surgeon Richard Jackson of
Greenwood Ortho. in indpls IN at Community Hospital South. I
would like my records from his office. MY KNEE HURTS!”
[Filing No. 90-4 at 31.] In the response section of
the form, staff wrote “Requesting records.”
[Filing No. 90-4 at 31.]
March 8, 2016, Mr. Fromer submitted RFHC 223988, in which he
stated: “My knee is still hurting very badly and the
knee brace you gave me is to (sic) big. It is a medium but I
need a small. It slips down my leg. I have been up with no
sleep all night because of my knee!” [Filing No.
90-4 at 34.] Staff wrote in the response section of the
form “Re-order size small.” [Filing No. 90-4
at 34.] On March 20, 2016, he submitted RFHC 230987, in
which he stated “I still don't have my knee brace
and still nothing being done about my chronic pain. My
records have been sent in! This is cruel and unusual
punishment.” [Filing No. 90-4 at 37.] Staff
wrote in the response section of the form “Knee brace
issued.” [Filing No. 90-4 at 37; see also
Filing No. 90-4 at 38 (Corizon Property Receipt for knee
brace, signed by Mr. Fromer on March 22, 2016); Filing
No. 90-4 at 39-40 (Nurse Riggs' notes from March 22,
2016 visit stating that a knee sleeve was issued that day).]
April 16, 2016, Mr. Fromer saw Dr. Samuel Byrd for a Chronic
Care Visit at which he complained of knee pain, low back
pain, and other issues. [Filing No. 90-4 at 41.] Dr.
Byrd noted that Mr. Fromer reported a need for a total knee
replacement, but that his x-rays were “essentially
negative” and that Dr. Jackson had previously
recommended doing quad strengthening exercises. [Filing
No. 90-4 at 41.] Dr. Byrd also noted that Mr. Fromer had
a small knee sleeve, but reported that it did not fit.
[Filing No. 90-4 at 41.] Mr. Fromer also reported
lower back pain due to degenerative changes, and Dr. Byrd
noted that x-rays showed degenerative changes at ¶ 1-L2.
[Filing No. 90-4 at 41.] Mr. Fromer also stated that
he had previously been on Methadone and Norco with a pain
management specialist and was previously on Tramadol as well
[Filing No. 90-4 at 41.] He reported that his low
back pain was most severe when trying to sleep at night and
when first getting up in the morning, though he denied any
significant daytime pain. [Filing No. 90-4 at 41.]
Mr. Fromer denied improvement with Tylenol, Ibuprofen, and
Mobic prescribed in the past. [Filing No. 90-4 at
41.] Dr. Byrd noted that the high dose of Prozac Mr.
Fromer was taking made Tramadol contraindicated due to
Serotonin Syndrome. Dr. Byrd prescribed Tegretol for lower
back pain. [Filing No. 90-4 at 44.] On April 25,
2016, Mr. Fromer received an extra-small knee brace.
[Filing No. 90-4 at 48.]
9, 2016, Mr. Fromer submitted RFHC 234681 in which he
requested a small “McKesson” knee sleeve, which
was subsequently ordered for him. [Filing No. 90-4 at
49.] On May 18, 2016, he submitted RFHC 237582, stating:
“The tegretal (sic) I have been prescribed is not
helping my pain at all. It did for a short time for my knee
but now it seems my pain issues are just as bad if not worse.
It is also giving me headaches, making me not think right,
I'm rubbing my thumb and middle fingers together, I seem
confused, I think it is ...