Nancy Morris v. Andrew Bland, No. 15-1115 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1115 NANCY MORRIS, as personal representative of the Estate of David Allan Woods, Plaintiff - Appellee, v. ANDREW J. BLAND; RICHARD T. BURKHOLDER, SGT, officially individually; LEEMON E. CARNER, PFC, officially individually; JERRY SPEISSEGGER, JR., PFC, officially individually; PRISCILLA GARRETT, SGT, officially individually, and and and and Defendants – Appellants, and THE HOPE CLINIC, LLC; TEMISAN ETIKERENTSE; SUE BRABHAM, R.N., officially and individually; H. WAYNE DEWITT, Berkeley County Sheriff, officially and individually; JAMES M. BROPHY, PFC, officially and individually; PATRICIA D. COLLINS, SGT, officially and individually; CHARLES A. DESANTO, CPL, officially and individually; ASHLEY A. HARBER, PFC, officially and individually; KANSAS DAAB, PFC, officially and individually; JOHN DOES, officially and individually; CLIFFORD L. MCELVOGUE, Director, officially and individually; BERKELEY COUNTY; BERKELEY COUNTY SHERIFF’S DEPARTMENT; KENDRA MOORE, Staff SGT, officially and individually, Defendants. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Richard M. Gergel, District Judge. (5:12-cv-03177-RMG) Argued: September 20, 2016 Decided: November 16, 2016 Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. ARGUED: Harold C. Staley, Jr., ELROD POPE LAW FIRM, Rock Hill, South Carolina, for Appellee. ON BRIEF: Eugene P. Corrigan, III, Amanda K. Dudgeon, CORRIGAN & CHANDLER LLC, Charleston, South Carolina; James A. Stuckey, Jr., Alissa C. Lietzow, STUCKEY LAW OFFICES, LLC, Charleston, South Carolina, for Appellants. Garrett B. Johnson, ELROD POPE LAW FIRM, Rock Hill, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: This appeal arises from a plaintiffs’ verdict in connection with the death of David Allan Woods during his incarceration at the Hill-Finklea Detention Center (“HFDC”) in South Carolina. The jury awarded substantial damages based on its finding that Andrew J. Bland, Richard T. Burkholder, Leemon Carner, Priscilla Garrett, and “Appellants”), weekend of indifferent Jerry five Woods’s to Speissegger, HFDC employees present incarceration, Woods’s serious Jr. had medical (collectively, during been needs, the final deliberately and thereby deprived him of rights guaranteed by the Eighth and Fourteenth Amendments. On appeal, Appellants challenge various evidentiary rulings, the punitive damages award, the setoff calculation, and the denial of several post-trial motions. Finding no error, we affirm. * I. We detail the facts in the light most favorable to the jury’s findings and conclusions. David Allan Woods, then 50 years old, was incarcerated at HFDC from October 12 to November 8, 2010. At the time of Woods’s incarceration, HFDC had contracted with Hope Clinic, LLC to provide medical services to * Although counsel for Appellants did not appear for oral argument in this case, we have fully considered the arguments set forth in the brief filed on their behalf. 3 inmates. Medical personnel did not generally work onsite after 5 p.m., before 9 a.m., or over the weekend. medical issue arose after hours, a Accordingly, if a shift sergeant was responsible for alerting on-call medical staff. At approximately 10:30 p.m. on Friday, November 5, 2010, in response to a call from the central tower, Shift Sergeant Garrett found Woods shaking on the floor of his cell. Garrett asked Woods what was wrong, if he could walk, and if he could stand up. Woods responded “I don’t know” to each question. J.A. 487-88. Garrett helped Woods to his feet and directed him to a cell in M-Pod, a medical observation unit with cameras that fed to the front control station. Privates were assigned to the front desk and were responsible for monitoring the video feed during four-hour shifts. Once in his M-Pod cell, Woods was unsteady on his feet and needed assistance from his new cell mate, Freeman Ingraham, when taking off his uniform, sitting on the toilet, and drinking water from a cup. On several occasions, Ingraham attempted to contact the desk Garrett returned believed he front saw to through the blood cell, in the intercom Ingraham Woods’s system. informed stool. her Because When that Woods he and Ingraham had flushed the toilet, Garrett was unable to verify the presence of blood. 4 At 4:28 a.m. on Saturday, November 6, Speissegger entered the cell to administer Woods’s medication. Woods did respond when asked if he would take his medication. not Woods’s hands were visibly shaking and, despite instructions from both Speissegger and Ingraham, Woods was unable to cup his hand to accept the medication. After the medication fell to the ground, Speissegger left and noted in his log that Woods had refused the medication. At sergeant. 5:30 a.m., Burkholder relieved Garrett as shift Garrett notified Burkholder of Ingraham’s report of blood in Woods’s stool, but Burkholder did not call the nurse or attempt to observe any continued presence of blood. Burkholder testified that he visited Woods once during this shift, during which he “saw [Woods] walking” and believed Woods “was fine.” J.A. 634. The record contains several clips of Woods taken during Burkholder’s shift. In one, Woods stands swaying in the middle of his cell before falling backward onto his bunk. In another, Woods is lying on his bunk with a dark substance covering the lower half of his uniform and bed. Burkholder noted in his log that Woods was “lying in his own feces and refused to shower.” J.A. 650, 1165-66. Garrett returned to duty at 5:30 p.m., and she received and read the above log entry. 5 Another video clip from approximately 12:20 a.m. on Sunday, November 7, shows that Woods’s condition remained unchanged. At approximately 12:30 a.m. on November 7, Garrett arranged for a work crew, including Carner and Speissegger, Woods’s cell and escort Woods to the showers. that Woods stood, walked, undressed, and to clean Carner testified bathed without assistance. However, Garrett observed that Woods’s uniform was soiled a with noticed dark, he was black, and shaking, hardened substance, disoriented, and and she unsteady. Approximately 30 minutes after he returned to his cell, Woods appeared disoriented and struggled to put on his uniform. Three hours later, when Carner brought Woods his breakfast, Woods was lying naked on the floor. Woods was disoriented, shivering, and barely able to stand, and he required assistance when putting on his uniform. Carner believed that Woods’s symptoms were the result of waking up on the cold floor, not from any need for medical attention. Garrett and Burkholder changed shifts at approximately 5:30 a.m., at which point Garrett told Burkholder he may want to call the nurse to treat Woods. Burkholder responded that he would contact the nurse later on in his shift, but he did not do so. At approximately 6:00 a.m., another HFDC employee, James Brophy, interacted with Woods. Brophy noticed that Woods had wet himself, and he and another officer assisted Woods in changing 6 his uniform. Brophy prepared a written incident report wherein he noted that Woods was disoriented, was “not able to stand but for a short period of time,” “did not respond to any question asked [of] him,” and “didn’t know where he was or why he was here.” J.A. 597-98, 1171. passed to Burkholder. on Woods, talking,” Woods and The incident report was ultimately Burkholder testified that when he checked “was up Burkholder walking believed with Mr. Woods at that time.” around, “[t]here J.A. 659. coherent, was nothing [and] wrong Burkholder did not call the nurse, but he copied the incident report and left it for superior officers and medical staff to receive on Monday morning. At 5:30 p.m. on Sunday, November 7, Burkholder and Garrett again changed shifts. Garrett checked on Woods shortly after 6 p.m. and found him sitting naked in his cell. She asked Woods to put on his uniform to avoid the cold, and she asked if Woods was in pain or had any complaints. questions Woods was with grunts. being Garrett “defiant,” Woods responded to all her testified though she that she admitted believed having knowledge of any past, uncooperative behavior from Woods. no J.A. 504-05. At 10:19 p.m., Bland was at the front desk and observed Woods lying naked on the cell floor. Through the intercom, Bland instructed Woods to get dressed. Woods stood up, walked 7 to the uniform lying on his bunk, and urinated onto it. Woods then stood, trembling violently, as he held onto the wall for support. At 2:15 a.m. on Monday, November 8, Bland entered Woods’s cell to give him his medication. Woods was again unable to properly cup his hand, and Bland noted in his log that Woods had refused his medication. Woods was being “difficult.” Bland testified that he believed J.A. 729, 737. After a new sergeant came on duty on Monday, November 8, the staff nurse was called to examine Woods. Woods was then released with his sentence time-served and was transported to Trident Medical Center, where he was found to be “stuporous” and “hypotensive” with “a hemoglobin of 4.” J.A. 450-51, 1257. Woods’s “prognosis was felt to be bleak” when he was admitted. J.A. 1258. bleeding Woods then underwent several procedures to address ulcers in his duodenum. Woods suffered a cardiac arrest during the first procedure, but he was resuscitated. On November 11, 2010, Woods suffered another major intestinal bleed above his stomach. 11, 2010. An gastrointestinal esophageal varices, autopsy bleeding ulcers, and Woods passed away at 4:50 p.m. on November revealed his from duodenal cirrhosis cardiac a of arrest the liver secondary bleeding. 8 cause to of ulcer, with death as bleeding esophageal gastrointestinal Appellee Nancy Morris, as personal representative of Woods’s estate, filed this survival and wrongful death action pursuant to 42 U.S.C. § 1983. Morris filed the action against eighteen defendants: the Hope Clinic and two of its employees (collectively, the “Hope Defendants”), as well as Appellants, Berkeley County, its Sheriff’s Office, and eight other county employees trial, (collectively, the district the court “County approved Morris and the Hope Defendants. Defendants”). a to reached settlement Prior by Ten of the County Defendants were also dismissed voluntarily or by summary judgment. case then indifference proceeded to trial claim against only on Morris’s Appellants. During The deliberate trial, the parties were limited to presenting evidence that related to the period between November 5 and 8, 2010, deliberate indifference allegedly occurred. when Appellants’ The district court also prohibited Appellants from introducing evidence regarding the Hope Defendants, the settlement, their prior treatment of Woods, or Woods’s history of alcohol use. The jury determined that Appellants had been deliberately indifferent to Woods’s serious medical needs during his last weekend of incarceration. The jury awarded compensatory damages of $500,000 jointly, punitive damages of $150,000 each against Bland, Carner, and Speissegger, and punitive $1,000,000 each against Burkholder and Garrett. 9 damages of The district court then resolved Appellants. judgment a number of post-trial motions filed by The district court denied Appellants’ motions for as a matter of law, new trial, and remittitur. However, it granted in part Appellants’ motion for setoff and, upon applying portions of the Hope settlement proceeds, reduced the compensatory damages award to $171,875. appealed. Appellants timely This Court has jurisdiction pursuant to 28 U.S.C. § 1291. II. We begin challenges. by addressing Appellants’ various evidentiary This Court reviews the district court’s rulings on the admissibility of evidence for abuse of discretion. Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 349 (4th Cir. 2014) (citation omitted). Appellants first argue that the district court improperly excluded evidence settlement, 2010. and related their Appellants to treatment contend the of this Hope Woods Defendants, before evidence is the November relevant 5, to determining causation and the subjective state of mind required for deliberate indifference. However, the district court correctly noted that the central dispute at trial was whether Woods’s need for medical treatment over his last weekend of incarceration was obvious to a layperson such that Appellants should have reported his symptoms 10 to medical personnel. Appellants repeatedly testified they had no knowledge of Woods’s medical history. Nor did they provide any evidence to suggest they relied on the Hope Defendants’ treatment history when they observed and failed to adequately respond deteriorating health over the November 5-8 period. considerations, alleged we negligence agree in that the treating Hope Woods to Given these Defendants’ before this irrelevant to the deliberate indifference claim. Woods’s role period or was See, e.g., Cooper v. Dyke, 814 F.2d 941, 947 (4th Cir. 1987) (holding that the paramedics’ negligence “could not have constituted an ‘intervening’ cause” where the plaintiff’s “claim was based on defendants’ deliberate indifference to his . . . suffering after the time of the initial paramedic exam.”). Accordingly, the district court did not abuse its discretion in excluding the aforementioned evidence. Appellants also contend that the district court improperly excluded evidence of Woods’s alcohol and drug use as well as its impact on his medical condition. However, Appellants provide nothing but mere speculation when they argue that Woods’s use of alcohol and drugs “accelerat[ed]” the deterioration of his health such that “no act or omission by Appellants proximately caused his prejudicial death.” effect Appellants’ of such Br. evidence, 48. and Given the likely given Appellants’ failure to articulate the relevance or probative value of this 11 evidence, we find no abuse of discretion in its exclusion under Federal Rule of Evidence 403. Finally, Appellants argue that the district court erred when it “prohibited” Appellants from soliciting expert testimony from Morris’s qualified medical expert, Dr. Jack Raba, as well as Appellants’ two fact Contrary to their latitude to vigorously testimony, therefore witnesses. assertion, discern no Appellants cross-examine especially as it abuse Appellants’ were Dr. pertained of discretion 44. permitted Raba to Br. regarding causation. as wide to this his We expert testimony. We similarly find no abuse of discretion as to the examination of Appellants’ two fact witnesses, Dr. John Sanders and Dr. Ellen Reimers. Dr. Sanders was Woods’s treating physician before and after his incarceration at HFDC, and Dr. Reimers was the Notably, however, pursuant to pathologist neither Federal who witness Rule of conducted prepared Civil Woods’s an Procedure autopsy. expert report 26(a)(2)(B). Numerous courts have held that a physician is exempt from this written report requirement only as to opinions formed during the course of treatment. Superstore, LLC, (collecting cases). See, e.g., Goodman v. Staples The Office 644 F.3d 817, 824-26 (9th Cir. 2011) Here, both Dr. Sanders and Dr. Reimers were fully permitted to discuss their examination of Woods and their 12 diagnoses or findings. Their testimony was disallowed only to the extent Appellants sought to “offer [expert] opinions as to proximate cause” that were not formed during the course of treatment and thereby fell outside the scope of their opinions as mere fact witnesses. J.A. 380; see Fed. R. Evid. 701. Under Federal Rule of Civil Procedure 37(c)(1), a party who fails to provide information as required by Rule 26(a), including a Rule 26(A)(2)(B) expert report, is subsequently “not allowed to use that information . . . at a trial” and may be sanctioned for this failure. Fed. R. Civ. P. 37(c)(1). Accordingly, the district court did not abuse its discretion in excluding the above testimony from Dr. Sanders and Dr. Reimers. III. Appellants next contend that Morris failed to provide adequate evidence to support the jury’s finding of deliberate indifference and, as a result, the district court erred in denying their Rule 50(b) motion for judgment as a matter of law and their Rule 59(a) motion for a new trial. the denial of a Rule 50(b) motion. We review de novo Durham v. Jones, 737 F.3d 291, 298 (4th Cir. 2013) (citation omitted). “If, viewing the facts in the light most favorable to the non-moving party, there is sufficient evidence for a reasonable jury to have found in [the non-moving party’s] favor, we are constrained to affirm the jury verdict.” First Union Commercial Corp. v. GATX Capital 13 Corp., 411 F.3d 551, 556 (4th Cir. 2005) (alteration in original) (quoting Lack v. Wal-Mart Stores, 240 F.3d 255, 259 (4th Cir. 2001)). The denial of a Rule 59(a) motion is reviewed for abuse of discretion, and it “will not be reversed ‘save in the most exceptional circumstances.’” FDIC v. Bakkebo, 506 F.3d 286, 294 (4th Cir. 2007) (quoting Figg v. Schroeder, 312 F.3d 625, 641 (4th Cir. 2002)). To prevail on an Eighth Amendment claim of inadequate medical care, a plaintiff must establish both a subjective and an objective component to her claim. 225, 241 (4th Cir. 2008). the [prison] officers “The plaintiff must demonstrate that acted with inmate’s ‘deliberate ‘serious indifference’ (subjective) to (objective).” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). the Iko v. Shreve, 535 F.3d medical needs’ A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” F.3d 839, 846 (7th Id. (quoting Henderson v. Sheahan, 196 Cir. 1999)). To satisfy the subjective component, the plaintiff must demonstrate that the officer had “actual knowledge of the risk of harm to the inmate” and that the officer “recognized that his actions were insufficient to mitigate the risk of harm . . . arising from [the inmate’s] medical needs.” Id. (internal quotation marks, citations, and 14 emphasis omitted). Whether an officer “had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual circumstantial evidence.” ways, including inference from Farmer v. Brennan, 511 U.S. 825, 842 (1994) (citations omitted). Upon viewing the trial testimony and evidence provided by the parties, finding of we a find serious that the medical evidence need. supports The videos the of jury’s Woods’s conditions, Ingraham’s recognition of Woods’s need for medical attention, and Brophy’s testimony and incident report suggest that Woods’s medical need was “so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Iko, 535 F.3d at 241 (citation omitted). There is also ample circumstantial evidence to support the subjective component of this claim. Based on the obviousness of an inmate’s medical need, a jury is permitted to conclude that the prison officers knew of the risk of harm to the inmate. 842. Farmer, 511 U.S. at Moreover, “a factfinder may conclude that the official’s response . . . was so patently inadequate as to justify an inference that the official actually recognized that his response to the risk was inappropriate under the circumstances.” Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004). the As described, testified to, and captured in the record, obviousness of Woods’s medical 15 need and Appellants’ inadequate jury’s reactions finding of to Woods’s deliberate symptoms amply indifference. support the Accordingly, we discern no error in the district court’s denial of Appellants’ motions for relief under Rule 50(b) and Rule 59(a). IV. Appellants award. next challenge the jury’s punitive damages Appellants contend that the evidence did not support a finding of punitive damages under 42 U.S.C. § 1983, that the punitive damages award excessive, that awards against the was unconstitutionally Garrett and Burkholder — and which were almost seven times the awards against the remaining Appellants — indicate the jury erred by holding the shift sergeants liable for the conduct of their subordinates. Appellants seek review of the denials of their 50(b) motion for judgment as a matter of law, motion for remittitur, and 59(a) motion for new trial on the above bases. We review de novo the denial of a 50(b) motion on a punitive damages award, and we review de novo the denial of a motion for remittitur on a punitive damages award alleged to be constitutionally excessive. EEOC v. Fed. Express Corp., 513 F.3d 360, 370-71 (4th Cir. 2008) (citations omitted). We review the denial of a 59(a) motion for abuse of discretion. Gregg v. Ham, 678 F.3d 333, 342-43 (4th Cir. 2012) (citation omitted). 16 Punitive damages are available in § 1983 actions “for conduct that involves ‘reckless or callous indifference to the federally protected rights of others,’ as well as for conduct motivated by evil intent.” Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Based on the deliberate record before indifference us, to we conclude Woods’s that serious Appellants’ medical needs satisfies the requirement that their conduct involve reckless or callous indifference to Woods’s federally-protected rights. See id. for (finding punitive that damages the is “callous essentially indifference the same as required the deliberate indifference required for a finding of liability on the § 1983 claim” for inadequate medical care). Moreover, we do not find the punitive damages award to be constitutionally excessive. Contrary to Appellants’ contentions, the factors enumerated by the Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), and State Farm Mutual Auto Insurance Co. v. Campbell, 538 U.S. 408 (2003), support the jury’s punitive damages award. First, given Appellants’ repeated and deliberate indifference over a threeday period, Woods’s physical vulnerability, and Woods’s resulting physical harm, we find that Appellants’ misconduct was sufficiently further “reprehensible sanctions [beyond as to warrant compensatory 17 the imposition damages] to of achieve punishment or deterrence.” Campbell, 538 U.S. at 419 (citation omitted). total Second, approximately five the times the punitive damages compensatory damages award is award, and single digit ratios generally do not present a constitutional issue. Id. at 425. Appellants emphasize that the individual punitive awards against Burkholder and Garrett reflect a 10-to-1 ratio, but a high ratio may nonetheless “comport with due process where ‘a particularly egregious act has resulted in only a small amount of economic damages.’” Id. (citation omitted). Here, the compensatory damages award was deflated due to Woods’s lack of lost wages. not use the damages low Based on the facts of this case, we “will economic award that reprehensibility of damages was award to otherwise [Appellants’] limit that the punitive damages behavior.” award punitive justified in by the Siggers-El Barlow, 433 F.Supp.2d 811, 819 (E.D. Mich. 2006). note a this v. Third, we case is inconsistent with similar deliberate indifference cases. not See, e.g., Murphy v. Gilman, 551 F. Supp. 2d 677, 685-86 (W.D. Mich. 2008) (upholding against each indifference a punitive prison over a damages officer five-day award defendant period during of $1.25 for which million deliberate an inmate received no medical care and little food and water, resulting in his death). 18 Finally, we find Appellants’ argument regarding supervisory liability to be without merit. that Burkholder Speissegger, and and The evidence supports a finding Garrett Carner in were their Woods’s serious medical needs. more culpable deliberate than Bland, indifference to Thus, the record in this case supports Burkholder and Garrett’s larger share of the punitive damages award. We therefore discern no error in the punitive damages award or in the district court’s denial of Appellants’ post-trial motions. V. Finally, Appellants challenge calculation of the setoff amount. the district court’s A district court’s decision to set off a damage award is reviewed for clear error. Atlas Food Sys. and Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 596 (4th Cir. 1996) (citations omitted). “[S]tate law governs the substantive right to setoff.” Under South Carolina law, “[a] non-settling defendant Id. is entitled to credit for the amount paid by another defendant who settles for the same cause of action.” Rutland v. S.C. Dep’t of Transp., 734 S.E.2d 142, 145 (S.C. 2012) (citation omitted). Here, given that Morris’s settlement with the Hope Defendants divided the settlement proceeds 50/50 between the survival and wrongful death claims, the district court applied division with respect to the jury’s § 1983 verdict. 19 the same Because Woods could experience only one wrongful death, the court fully offset the $250,000 of the jury verdict attributable to wrongful death. The district court then considered the survival portion of Morris’s claims. interacted with interactions The court observed that the Hope Defendants Woods were over limited 29 to days Woods’s whereas last Appellants’ four days of incarceration, which amounted to only 14% of the settlement time period. However, the district court also noted that Woods experienced more pain and suffering during his last weekend of incarceration. Accordingly, the court allocated 25% of the survival settlement proceeds to the survival portion of the jury verdict. This determination resulted in a total setoff of $328,125. The above calculation is reasonably based on the evidence and fairly advances the policy of preventing double recovery. Accordingly, we discern no clear error or abuse of discretion in the district court’s calculation. VI. For the foregoing reasons, the judgment is AFFIRMED. 20

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