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Mize v. Sator

United States District Court, M.D. Tennessee, Nashville Division

November 28, 2016

JASON E. MIZE, Plaintiff,
v.
INNOCENTES SATOR, and CORIZON HEALTH, a/k/a CORRECTIONAL MEDICAL SERVICES, in their individual and official capacities; Defendants.

          MEMORANDUM

          ALETAA.TRAUGER United States District Judge.

         Pending before the court is a Motion for Summary Judgment filed by the defendants (Docket No. 249), to which the plaintiff has filed a Response (Docket No. 264) and - with leave of the court - a Supplemental Response (Docket No. 337), the defendants have filed two Replies (Docket Nos. 274, 352), and the plaintiff has filed a Sur-Reply (Docket No. 361). Also pending before the court are objections made by the defendants to certain documents filed by Mr. Mize in opposition to the pending motion, including an Objection to the Plaintiff's Statement of Facts (Docket No. 353) and an Objection to the Plaintiff's Expert Witness Disclosure (Docket No. 355), to which the plaintiff has filed Responses in Opposition (Docket Nos. 358, 359). For the following reasons, the Objection to the Plaintiff's Statement of Facts will be overruled, the Objection to the Plaintiff's Expert Witness will be overruled in part and sustained in part, and the Motion for Summary Judgment will be denied. The court will also re-open discovery to allow the parties further opportunity to develop the factual record regarding (1) the role played by Corizon Health, a/k/a Correctional Medical Services (“Corizon”) in the delay or denial of medical care to Mr. Mize, and (2) the expert opinion submitted by Mr. Mize in opposition to the defendants' motion.

         BACKGROUND AND PROCEDURAL HISTORY

         This case arises out of the medical care that the plaintiff, Jason E. Mize, received from one of the defendants, Dr. Innocentes Sator, while he was incarcerated at Riverbend Maximum Security Institute (“Riverbend”) from 2007 to 2011. Mr. Mize was diagnosed with a chronic hepatitis C infection in 1998 and faced a substantial risk of developing serious damage to his liver, including cirrhosis, as a result. In January of 2011, after multiple years under the care of Dr. Sator, Mr. Mize was diagnosed with “grade 4, stage IV” cirrhosis of the liver. (Docket No. 341 (Ex. 15), p. 91.)[1] Mr. Mize alleges that he would never have developed cirrhosis, or sustained worsening damage to his liver, if Dr. Sator had not repeatedly and consistently refused to prescribe antiviral therapy to treat Mr. Mize's hepatitis C or to undertake the steps necessary to determine the advisability of such treatment. (Docket No. 165 ¶¶ 8-9, 23-68.)

         Proceeding pro se, Mr. Mize filed this action on August 15, 2011, alleging that Dr. Sator had been deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights, for which he brought a claim pursuant to 42 U.S.C. § 1983. (Docket No. 1 ¶¶ 30-32.) On July 26, 2012, Mr. Mize filed an Amended Complaint with leave of the court, adding Corizon as a defendant. (Docket No. 165.) Mr. Mize alleges that Corizon failed to update a medical evaluation form used by Dr. Sator in determining whether to prescribe antiviral therapy to Mr. Mize, which referenced an outdated version of the Federal Bureau of Prisons' Clinical Practice Guidelines (“FBOP Guidelines”) for the treatment of hepatitis C and contributed to Dr. Sator's failure to provide Mr. Mize with adequate treatment for that disease. (Id. ¶¶ 10-23.) Mr. Mize alleges that Corizon did not follow, or does not have, a policy that ensures that updates to the FBOP Guidelines are incorporated into the company's medical evaluation forms and that this failure constitutes deliberate indifference to the serious medical needs of inmates, in violation of their Eighth Amendment rights. (Id.)

         On March 4, 2013, the defendants filed a Motion for Summary Judgment (Docket No. 249), accompanied by a Memorandum (Docket No. 250), a Statement of Undisputed Material Facts (Docket No. 251), and the Declaration of Dr. Sator (Docket No. 250-7). The defendants argue that the court should dismiss all of Mr. Mize's claims because (1) the one-year statute of limitations for § 1983 claims bars Mr. Mize's claim against Corizon and any portion of his claim against Dr. Sator that it is based on events occurring prior to 2010; and (2) Mr. Mize cannot demonstrate genuine disputes of material fact supporting his deliberate indifference claims against Dr. Sator and Corizon. (Docket No. 250, pp. 6-13.) Specifically, the defendants argue that Mr. Mize's disagreements with Dr. Sator's medical decisions do not give rise to a constitutional claim and that he cannot demonstrate that Dr. Sator knew of a substantial risk of harm to Mr. Mize that he disregarded when he failed to prescribe antiviral therapy. (Id. at pp. 8- 13.)

         On April 3, 2013, Mr. Mize - still proceeding pro se - filed a Response in Opposition to the motion (Docket No. 263), accompanied by a Memorandum (Docket No. 264), a Response to the Statement of Undisputed Material Facts (Docket No. 267), and various exhibits, which were filed under seal (Docket Nos. 266, 270). In his Response, Mr. Mize argues that none of his claims are barred by § 1983's one-year statute of limitations because he was not made aware of his injury until he was diagnosed with cirrhosis in January of 2011, a mere seven months before he filed the Complaint. (Docket No. 264, pp. 1-2.) Mr. Mize also argues that genuine disputes of fact exist that support his claims against both defendants and, when those facts are viewed in the light most favorable to him, a jury could infer that (1) Dr. Sator recognized, and disregarded, a serious risk to his health, and (2) Corizon had a policy of not updating its forms to reflect changes to FBOP Guidelines, in deliberate indifference to inmates' serious medical needs. (Id. at pp. 6-34.)

         On April 18, 2013, the defendants filed a Reply in support of the motion, in which they primarily argued that Mr. Mize could not establish that either Dr. Sator or Corizon caused him any injury “because he does not have expert testimony” to support such an inference. (Docket No. 274, p. 1.) On August 13, 2015, in response to Mr. Mize's request for the appointment of counsel, the court noted the difficulties Mr. Mize faced in responding to the pending motion because - as a pro se, incarcerated litigant - “he has no way to obtain an expert without the appointment of counsel.” (Docket No. 324.)[2] After acknowledging that the appointment of counsel in a civil case is not a constitutional right but, rather, justified only by exceptional circumstances, the court found that “the potential merit of [Mr. Mize's] claims and his inability to procure the services of an expert while he is incarcerated” warranted such an appointment. (Id.) Newly appointed counsel was given 60 days to file a supplemental response to the defendants' Motion for Summary Judgment. (Id.)

         On February 9, 2016, Mr. Mize - now represented by counsel - filed a Supplemental Response in Opposition to the motion (Docket No. 337), accompanied by a Response to the Statement of Undisputed Material Facts and Statement of Additional Facts (Docket No. 338) and multiple exhibits, some of which were filed under seal (Docket Nos. 339, 341). Mr. Mize also filed the Declaration of Dr. Richard B. Martin (Docket No. 339-1) and Dr. Martin's expert report (Docket No. 339-2), opining that Dr. Sator's failure to provide necessary evaluation and treatment to Mr. Mize from May of 2007 to May 2009, and again after September of 2010, “demonstrated deliberate indifference to Mr. Mize's serious medical needs” that prevented Mr. Mize from receiving potentially life-saving treatment (Docket No. 339-1 ¶ 6). In the Memorandum, Mr. Mize identifies evidence that he argues (1) supports the inference that Dr. Sator perceived, and disregarded, a substantial risk of serious medical harm to him on six different occasions and (2) establishes a genuine issue of fact with respect to whether Dr. Sator's conduct caused him to develop cirrhosis and suffer from further damage to his liver. (Docket No. 337, pp. 2, 16-23.) Mr. Mize further argues that, based on the fact that Dr. Sator was using an outdated medical evaluation form in 2010, “[a] reasonable juror could . . . conclude that Corizon's practices and procedures were inadequate to ensure that these forms used to treat patients' potentially fatal conditions were based on current medical science, available treatments, and up-to-date treatment protocols.” (Id. at p. 24.)

         On May 25, 2016, the defendants filed a second Reply (Docket No. 352), responding to Mr. Mize's Supplemental Response and accompanied by a second declaration by Dr. Sator (Docket No. 352-1). In this Reply, the defendants argue that none of Mr. Mize's evidence, including the opinion from Dr. Martin, demonstrates that Dr. Sator was deliberately indifferent to Mr. Mize's serious medical needs. (Docket No. 352.) The defendants further argue that the specific instances of alleged deliberate indifference identified by Mr. Mize support, at most, a claim for mere medical negligence and do not rise to the level of constitutional violations that would support a § 1983 claim. (Id. at pp. 1, 3-4.) The defendants also filed an Objection to the Plaintiff's Statement of Facts (Docket No. 353) and an Objection to the Plaintiff's Expert Witness Disclosure (Docket No. 355), to which Mr. Mize responded on June 8, 2016 (Docket Nos. 356, 358.)

         On August 2, 2016 - with leave of court - Mr. Mize filed a Sur-Reply, in which he argues that Dr. Martin's expert opinion and the evidence that Dr. Sator repeatedly chose not to provide Mr. Mize with courses of treatment prescribed by FBOP Guidelines provide a sufficient factual basis from which a reasonable juror could conclude that Dr. Sator was deliberately indifferent to Mr. Mize's serious medical issues and, through that indifference, caused Mr. Mize serious harm. (Docket No. 361, pp. 1-7.) Mr. Mize argues that statements made in Dr. Sator's second declaration regarding a provider's meeting - in which the doctor was purportedly instructed, incorrectly, that FBOP Guidelines recommended no antiviral treatment for a patient with stage IV cirrhosis - further support a finding that Corizon had a pattern, policy, or practice of failing to ensure that updates to the FBOP Guidelines were incorporated into the company's guidance to physicians responsible for the treatment of inmates at prisons in Tennessee. (Id. at pp. 7-8 (citing Docket No. 352-1 ¶ 33).)

         OBJECTIONS

         Before the court can describe the undisputed facts of this case, or those that must be viewed in the light most favorable to Mr. Mize as the non-movant, it must first address the objections made by the defendants to certain documents filed by Mr. Mize in opposition to the pending motion.

         I. Objection to the Plaintiff's Local Rule 56.01(c) Statement of Facts

         The defendants object to the portion of Mr. Mize's Response to their Statement of Undisputed Material Facts in which Mr. Mize asserts additional facts in support of his opposition to the defendants' Motion for Summary Judgment. (Docket No. 353.) The defendants acknowledge that, pursuant to Local Rule 56.01(c), Mr. Mize is entitled to submit “a concise statement of [any] additional facts that [he] contends are material and as to which [he] contends there exists a genuine issue to be tried” in response to a motion for summary judgment. (Id.) They argue, however, that Mr. Mize's facts “appear to be his own statement of undisputed material facts, ” which they submit is not permitted by any rule, local or otherwise. (Id.) The court does not, however, find Mr. Mize's response to be substantially different from any other statement of additional facts typically submitted by a non-moving party in the course of briefing on a motion for summary judgment. Mr. Mize asserts additional facts, supported by citations to the record, and the defendants are given the opportunity to dispute those facts, which they took. The court will, therefore, overrule the defendants' objection to Mr. Mize's additional facts.

         In his Response to the defendants' objection (Docket No. 358), Mr. Mize argues that the defendants themselves have violated Local Rule 56.01(c), which requires a party responding to a statement of fact at summary judgment to “demonstrate[] that the fact is disputed” by “specific citation to the record.” According to Mr. Mize, the defendants' response is deficient because it “purport[s] to dispute a host of facts asserted by Mr. Mize without providing a specific citation to the record.” (Id. (citing Docket No. 356 ¶¶ 27, 29, 54, 59, 60 as examples of the defendants' insufficient responses).) Mr. Mize further argues that, because the defendants have failed to sufficiently respond to certain facts, those facts should be deemed admitted for the purposes of summary judgment. (Id.) Based on its review of the defendants' responses, the court notes that the defendants did fail to adequately dispute some of the additional material facts that were asserted by Mr. Mize and supported by him with adequate citations to the record. Accordingly, the court will take these failures into account in its discussion of the facts supporting Mr. Mize's claims below.

         II. Objection to the Plaintiff's Expert Witness Disclosure

         The defendants also object to testimony provided by the Mr. Mize's expert, Dr. Martin, in opposition to the Motion for Summary Judgment. (Docket No. 355.) The defendants request that the court exclude Dr. Martin's testimony from its consideration of the motion, arguing that they have been prejudiced by the late disclosure of Dr. Martin as an expert and that Dr. Martin's testimony “invades the province of the jury.” (Id. at p. 2.)

         With respect to the timeliness of the disclosure, the defendants argue that Mr. Mize did not disclose Dr. Martin as an expert until he filed his Supplemental Response in February of 2016, approximately three years after discovery had closed and the pending motion had been filed. (Id. at pp. 2-3.) The court does not find, however, that the defendants were unduly prejudiced by this late disclosure. In August of 2015, the court appointed counsel to represent Mr. Mize because of “the potential merit of [his] claims and his inability to procure the services of an expert while he is incarcerated.” (Docket No. 324 (emphasis added).) The court clearly contemplated that, when Mr. Mize supplemented his opposition to the defendants' motion, he would include expert testimony that supported his claims but which he had been unable to obtain while incarcerated. The defendants were, therefore, on notice that Mr. Mize would likely submit expert testimony, and the prejudice done to them by Mr. Mize's late disclosure was not substantial. Furthermore, to the extent that the defendants claim that they have been prejudiced by their inability to conduct discovery into Dr. Martin and his expert opinion after the close of discovery, the appropriate remedy is a re-opening of discovery and not the exclusion of Dr. Martin's report from the court's consideration. Accordingly, the court will order the re- opening of discovery to allow the defendants that opportunity.

         The defendants also argue that Dr. Martin's testimony should be excluded because he testifies to a legal conclusion; namely, that Dr. Sator was “deliberately indifferent” to Mr. Mize's serious medical needs. (Docket No. 355, p. 3.) The defendants are correct in noting that Dr. Martin impermissibly invades the province of the jury when he opines that Dr. Sator was “deliberately indifferent” to Mr. Mize's serious medical needs, as that is the ultimate legal question that must be answered before Dr. Sator may be found liable for violating Mr. Mize's constitutional rights. The court, therefore, will sustain the defendants' objection to the extent that it seeks to exclude any of Dr. Martin's opinions that impermissibly invade the province of the jury, and it will exclude those opinions from its consideration of the pending motion.

         FACTS[3]

         Mr. Mize was incarcerated at Riverbend from May of 2007 to May of 2009, and again beginning in September of 2010.[4] Mr. Mize was diagnosed with hepatitis C in 1998, and he suffered from a chronic hepatitis C infection (genotype 1) both before and during his incarceration at Riverbend. Hepatitis C is a virus that is transmitted primarily by direct percutaneous exposure to infected blood (Docket No. 339-4 (2009 FBOP Guidelines), p. 1), and the parties agree that patients living with a chronic hepatitis C infection face a substantial risk of developing serious liver damage, including fibrosis and cirrhosis of the liver (Docket No. 356 ¶ 21). Cirrhosis of the liver is a painful and life-threatening condition accompanied by a substantially elevated risk of liver failure, liver cancer, and other serious complications. Both parties further agree that a hepatitis C infection can be treated and cured through a combination of pegylated interferon and ribavirin (“interferon/ribavirin treatment”), an antiviral therapy that can also protect a patient from damage to his/her liver caused by a hepatitis C infection. (Id. ¶ 12.)

         I. The Medical Treatment Provided to Mr. Mize by Dr. Sator

         Dr. Sator began treating Mr. Mize on May 31, 2007. Based on Mr. Mize's medical records, Dr. Sator was aware that Mr. Mize had been diagnosed with hepatitis C in 1998 and still suffered from a chronic hepatitis C infection. Dr. Sator has admitted that he was further aware that, as a patient who had been living with chronic hepatitis C for nearly a decade, Mr. Mize stood a substantial, ongoing risk of developing fibrosis and cirrhosis of the liver, as well as other serious and potentially fatal liver ailments. (Docket No. 356 ¶ 21.) In addition to his chronic hepatitis C infection, Mr. Mize exhibited multiple risk factors for developing liver damage, including that he was ...


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