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Fromer v. Riggs

United States District Court, S.D. Indiana, Terre Haute Division

March 29, 2019

Louis P. Fromer, Plaintiff,
v.
Bobbi Riggs and Mary Chavez, Defendants.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff 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.

         I.

         Motion for Confirmation

          The 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.]

         The 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. 153].[1]

         The 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).]

         II. Motion to Exclude the Medical Defendants' Expert Report

          Next, the Court will consider Mr. Fromer's Motion to Exclude the Medical Defendants['] Expert Report. [Filing No. 93.]

         Defendants 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 follows:

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. 90-3.]

         In his 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.]

         Defendants 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 6.]

         In his 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.]

         Federal 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).

         The 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.

         The 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.

         Dr. 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.

         III.

         Motion for Summary Judgment

         Finally, the Court considers Nurse Riggs' Motion for Summary Judgment.

         A. Summary Judgment 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. 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. 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. 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).

         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. 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 Cir. 2010).

         B. Statement of Facts

          The 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).

         1. Mr. Fromer's Medical Care Prior to Incarceration at Wabash Valley

         On 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.]

         On March 30, 2011, Mr. Fromer underwent a right osteotomy[2] 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.[3] [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.]

         On July 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.[4] 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.]

         2. Mr. Fromer's Medical Care at Wabash Valley

         Mr. 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.][5] 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.]

         On 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.]

         On 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.]

         Robert 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.]

         On 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.]

         Mr. 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.]

         On 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).]

         On 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.[6] 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.]

         On May 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 ...


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