UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________________________ STEVEN BRODER, by James H. Jackson, personal representative for the estate of Steven Broder,

Plaintiff, vs.
CORRECTIONAL MEDICAL SERVICES, INC., its medical director CRAIG HUTCHINSON, and BENCY MATHAI, and employees of the Michigan Department of Corrections, namely GEORGE PRAMSTALLER, medical director, and JAN EPP, regional medical director, all in their individual capacities,

File No. 03-75106 Hon. Marianne O. Battani Mag. Judge Paul J. Komives

Defendants. _____________________________________________/

SECOND AMENDED COMPLAINT AND JURY DEMAND The personal representative of Steven Broder’s estate,1 by his attorneys, the Michigan Clinical Law Program, files this second amended complaint in light of Mr. Broder’s death on December 13, 2008, stating as follows:
INTRODUCTION 1. This is a civil rights action for damages against Michigan Department of Corrections’ medical supervisors George Pramstaller and Jan Epp, and against the MDOC’s contract medical provider Correctional Medical Services, Inc. (CMS), its medical director Craig Hutchinson and its employee or agent Bency Mathai, who was Mr. Broder’s primary care physician. 2. Under MCL 600.2921, Mr. Broder’s claims survive his death, and all state-law claims regarding the defendants’ actions which resulted in his death are brought under MCL 600.2922, as required by MCL 600.2921. 3. Mr. Broder’s claims arise out of inadequate medical care provided to him while he was incarcerated at the Parnall Correctional Facility and Duane Waters Hospital at the state prison complex in Jackson, Michigan.

1 Mr. Broder’s name is used interchangeably with his estate and/or personal representative in this complaint.

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4. The heart of Mr. Broder’s complaint is that the defendants were deliberately indifferent to his serious medical needs by failing to timely diagnose and treat his laryngeal cancer, in violation of the Eighth Amendment to the United States Constitution, as actionable through 42 U.S.C. § 1983.
5. Mr. Broder’s complaint also includes the state-law statutory torts of medical malpractice (MCL 600.2912) and wrongful death (MCL 600.2922), as well as negligence, as to those defendants who fall outside the governmental immunity statute (MCL 691.1407(2) (c)).
PARTIES 6. Plaintiff-decedent Steven Broder was in the custody of the MDOC from on or about October 19, 1994, to October 17, 2009. 7. Defendant George Pramstaller, D.O., was the MDOC’s chief medical officer. In that capacity at all relevant times he was directly responsible for the customs, policies, practices, procedures, and staff training that governed the medical care provided to prisoners in the custody of the MDOC. 8. Defendant Jan Epp, B.S.N., R.N., was the regional health care administrator. At all relevant times she was directly responsible for the customs, policies, practices, procedures, and staff training protocols that governed the medical care provided to prisoners in the MDOC region that included Parnall. 9. Defendant Correctional Medical Services, Inc., (CMS), is a for-profit corporation licensed to do business in Michigan. At all relevant times CMS was obligated by contract to provide managed health care to MDOC prisoners generally and to Mr. Broder in particular. Upon information and belief, CMS helped formulate and implement the customs, policies, practices, procedures, and staff training protocols related to medical care in MDOC facilities. 10. Defendant Craig Hutchinson, M.D., was the CMS medical director. At all relevant times he was obligated by contract to provide managed health care to MDOC prisoners generally and to Mr. Broder in particular. Upon information and belief, Dr. Hutchinson helped formulate and implement the customs, policies, practices, procedures, and staff training protocols related to medical care in MDOC facilities. 11. Defendant Bency Mathai, M.D., was an agent or employee of CMS who at all relevant times worked as a primary care physician in the prisons and provided care to the plaintiff.
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JURISDICTION 12. Actions by the MDOC’s agents or employees and by CMS and its agents or employees were carried out under color of state law. 13. This action is brought under 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. 14. Jurisdiction of this Court is based on 28 U.S.C. § 1331 and § 1343. 15. Venue is proper within the Eastern District of Michigan because a substantial part of the events or omissions giving rise to Mr. Broder’s claims occurred within this district, certain defendants reside within this district, and upon information and belief, all the defendants reside in the state of Michigan. 16. For the state-law-based claims, this Court has supplemental jurisdiction under 28 U.S.C. § 1367. 17. The plaintiff exhausted his administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Copies of his grievances and corresponding denials were attached to his original complaint as Exhibit 1.
FACTUAL ALLEGATIONS 2001 - 2003
18. In the early spring of 2001, while in the custody of the MDOC, Mr. Broder began suffering from a sore throat and sinus problems.
19. On May 4, 2001, Mr. Broder presented at sick call with symptoms of a sore throat and sinus problems. Sinus medication was prescribed for approximately 10 days.
20. Mr. Broder’s sore throat did not improve as a result of that treatment. 21. Between May 4, 2001, and July 2001, Mr. Broder made several follow-up complaints and requests for treatment. 22. Mr. Broder received no treatment as a result of these complaints and requests. 23. On July 11, 2001, during Mr. Broder’s annual physical exam, he again requested treatment for his sore throat, which at that point had been continuous for 3-4 months. 24. At the July 11 physical, Mr. Broder presented with a long-term sore throat, difficulty in swallowing and talking, and significant weight loss. 25. Between July 11 and September 5, 2001, Mr. Broder continued to suffer from and to complain of the same symptoms.
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26. He received no treatment as a result of these symptoms or complaints. 27. On September 5, 2001, Mr. Broder again presented at sick call with the same symptoms, but he was not treated. 28. On October 12, 2001, Dr. Audberto Antonini, a physician working at Parnall that day, examined Mr. Broder, who presented with the same sore throat and difficulty swallowing and talking, and significant weight loss. 29. Dr. Antonini, suspecting laryngeal or esophageal cancer, recommended that Mr. Broder see an ear, nose, and throat (ENT) specialist and a gastroenterologist for immediate testing. 30. On October 19, 2001, Mr. Broder was examined at Duane Waters Hospital. Chest xrays were taken, but due to broken equipment, x-rays of his stomach/intestines were not taken. 31. On October 31, 2001, Mr. Broder was again brought to Duane Waters Hospital to complete his x-rays, but those x-rays were not done because the hospital was out of barium. 32. On November 4, 2001, the x-rays were completed. 33. On November 13, 2001, Mr. Broder was sent out of the prison to see an ENT specialist in Jackson, Michigan. 34. On November 13, 2001, Dr. Ronald Kornak examined Mr. Broder and found a lesion on his larynx. 35. Dr. Kornak recommended that Mr. Broder undergo a microlaryngoscopy and vocal cord stripping promptly, to determine if the lesion was cancerous. 36. On November 19, 2001, Mr. Broder saw a gastroenterologist, Dr. ______ Sharma. 37. Dr. Sharma recommended that Mr. Broder undergo an endoscopy. 38. On November 29, 2001, Dr. Bency Mathai signed a form delaying both Dr. Kornak’s recommended microlaryngoscopy and vocal cord stripping and Dr. Sharma’s recommended endoscopy. 39. In early December, Mr. Broder was notified of a pre-operative appointment scheduled for December 7, 2001. 40. That appointment was cancelled. 41. Mr. Broder’s endoscopy, scheduled for December 10, 2001, was also cancelled. 42. On January 2, 2002, Dr. Mathai signed another form delaying both Dr. Kornak’s recommended microlaryngoscopy and cord stripping and Dr. Sharma’s recommended endoscopy.
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43. On January 11, 2002, Dr. Kornak performed a microlaryngoscopy and vocal cord stripping on Mr. Broder at Foote Hospital in Jackson.
44. On January 14, 2002, lab tests confirmed that Mr. Broder had a malignant tumor on his larynx.
45. By that time, Mr. Broder had had a continuous sore throat for some 8 to 9 months; more than three months had passed since Dr. Antonini first suspected that Mr. Broder had cancer and referred him to specialists for testing; more than two months had passed since the ENT specialist had identified a lesion on Mr. Broder’s throat.
46. On January 14, 2002, Mr. Broder was specifically diagnosed with Stage I invasive and in-situ moderately differentiated keratinizing squamous carcinoma on his left vocal cord.
47. The seriousness of laryngeal cancer is measured by four stages: Stage I, Stage II, Stage III, and Stage IV. Stage I is the least serious; Stage IV is the most serious.
48. The physical effects of laryngeal cancer and treatment include pain, difficulty in eating, choking on secretions, trouble swallowing, weight loss, hoarseness, and loss of voice.
49. On January 22, 2002, Dr. Kornak informed Mr. Broder that he had Stage I laryngeal cancer.
50. With treatment, the statistical five-year survival rate for Stage I laryngeal cancer is approximately 90 percent.
51. Mr. Broder was told that he should start radiation therapy immediately. 52. On January 30, February 4, and February 5, 2002, Mr. Broder requested information concerning the start of his radiation treatment. The reply indicated that radiation treatment had been requested but had not yet been scheduled. 53. On February 5, 2002, Mr. Broder was told during an outside appointment with Dr. James Hayman that radiation treatment should begin immediately – within one or two weeks. 54. On February 25, 2002, Mr. Broder requested information concerning the start of his radiation treatment. The reply indicated that the treatment would begin the following week. 55. Mr. Broder did not get a CT treatment-planning scan until March 12, 2002. 56. Mr. Broder’s radiation treatment was scheduled to begin on March 19, 2003, but the radiation did not start that day. 57. On March 27, 2002, Mr. Broder had an MRI. 58. On March 27, 2002, Mr. Broder again requested information concerning the start of
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his radiation treatment; he was again told that he would have to wait. 59. By April 1, 2002, before Mr. Broder’s disease was treated in any way, his throat
cancer had advanced from Stage I (the original January diagnosis) to at least Stage III T2N1. 60. Stage III T2N1 indicates a second site of cancer within the larynx (“T2”) and that the
cancer had metastasized to a lymph node (“N1”). 61. With treatment, the statistical five-year survival rate of Stage III laryngeal cancer is
34 to 60 percent. 62. Because Mr. Broder’s cancer had metastasized to the lymph nodes, however, the
statistical five-year survival rate could be reduced by as much as half (to 17 to 30 percent). 63. As a result of the delay in diagnosis and/or treatment, Mr. Broder had to undergo
chemotherapy as well as radiation therapy. 64. On April 2, 2002, Mr. Broder finally began chemotherapy. 65. On April 3, 2002, Mr. Broder finally began daily radiation treatment. 66. Mr. Broder received no treatment for his disease until approximately 25 weeks after
Dr. Antonini suspected that Mr. Broder had throat cancer, and 11 weeks after Dr. Kornak and the pathology lab confirmed that Mr. Broder had Stage I throat cancer.
67. But for the delays Mr. Border would not have needed chemotherapy, as Stage I throat cancer is treatable with radiation only.
68. Complications and side effects caused by Mr. Broder’s radiation and/or chemotherapy included nausea, dry mouth, irritated skin, loss of appetite, vomiting, diarrhea, anemia, suppressed immune system, and fatigue; the defendants failed to treat these side effects, particularly the dry mouth caused by the suppression of Mr. Broder’s salivary glands.
69. On April 3, 2003, a PEG tube was inserted in Mr. Broder’s abdomen to provide for nutrition, as Mr. Broder was having extreme difficulty swallowing and had lost considerable weight.
70. On April 4, 2002, Mr. Broder had one tooth pulled; the loss of this tooth caused the failure of a partial denture in August 2002.
71. Within one week of the PEG tube’s insertion, the area surrounding the PEG tube became infected, requiring an incision to drain and treat the infection.
72. On May 2, 2002, Mr. Broder began a second course of chemotherapy; his radiation treatment also continued.
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73. On May 24, 2002, Mr. Broder’s daily radiation treatment ended. 74. On June 10, 2002, Mr. Broder began a third course of chemotherapy. 75. During the third course of chemotherapy, Mr. Broder’s PEG tube was removed. 76. During the third course of chemotherapy, Mr. Broder underwent a microlaryngoscopy and biopsy that revealed that his laryngeal cancer was reaching remission. 77. Throughout the period of Mr. Broder’s treatment he suffered from dry mouth, which resulted in accelerated dental decay. 78. On November 5, 2002, Mr. Broder saw Dr. Kornak, who recommended another follow-up biopsy and vocal cord stripping promptly to check for a recurrence of Mr. Broder’s laryngeal cancer. 79. The biopsy and vocal cord stripping were not performed until April 17, 2003, more than five months after Dr. Kornak recommended these procedures. The biopsy was negative.
2007 - 2008 80. In December 2007 and January 2008, Mr. Broder began having problems with a sore throat, shortness of breath, and weight-loss. He also began coughing up blood. 81. In February 2008, Mr. Broder was examined by ENT Dr. Jayson Greenberg at Foote Hospital in Jackson. Dr. Greenberg performed a laryngoscopy and a biopsy. 82. Mr. Broder was diagnosed with recurrent squamous cell carcinoma. He was referred to the University of Michigan Medical Center for an appointment for a salvage laryngectomy. 83. On March 23, 2008, Mr. Broder had difficulty breathing and was rushed to Foote Hospital. 84. On March 27, 2008, Mr. Broder was again taken to Foote Hospital for difficulty breathing and shortness of breath. He was discharged on March 29, 2008. 85. On April 1, 2008, Mr. Broder was taken once more to Foote Hospital for shortness of breath, acute respiratory distress, and airway obstruction. When he arrived at Foote Hospital, he was unable to speak. 86. Dr. Jayson Greenberg performed an emergency tracheostomy. Mr. Broder was awake during the entire procedure. 87. From early April to May 22, 2008, Mr. Broder was placed at Duane Waters Hospital (DWH) at the Jackson correctional facilities awaiting his scheduled laryngectomy. 88. For 7-10 days after his arrival at DWH, Mr. Broder was without his dental bridge,
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which made eating difficult. The bridge was in his cell at Parnall less than a mile away, but no one would get it or bring it to him.
89. For days at a time at DWH, Mr. Broder did not have a change of bed sheets or of his hospital johnny. His room was cold but he was not provided sufficient blankets to keep warm.
90. Throughout his time at DWH, the medical supplies that were necessary to keep his tracheotomy tube clean and functioning were in short supply or were not provided at all. Medications sometimes were unavailable even though Mr. Broder had a supply of the same medications in his cell at Parnall.
91. On May 22, 2008, Mr. Broder was transferred to the U of M Medical Center, where Dr. Douglas Chepeha performed a total laryngopharyngectomy. The surgery included the removal of Mr. Broder’s voice box and reconstruction of his throat and neck, with a 13 x 9 cm. graft of skin removed from his right thigh. The procedure left Mr. Broder unable to speak and physically disfigured.
92. Dr. Chepeha removed a tumor that filled Mr. Broder’s entire larynx and was completely obstructing his airway.
93. On May 30, 2008, Mr. Broder was discharged from the U of M Medical Center and transferred back to DWH.
94. At DWH, Mr. Broder was isolated in a cold room. His bedding and johnny were rarely changed, and he was rarely given the opportunity to bathe. The staff at DWH lacked access to supplies necessary for Mr. Broder’s treatment and recovery.
95. Because his voice box had been removed, Mr. Broder was unable to request help verbally, but could only write out what he needed, if and when staff supplied pencil and paper.
96. On June 2, 2008, Mr. Broder was sent to Foote Hospital where he was diagnosed with cellulitis and hypocalcemia. Both were considered to be complications of the surgery performed on May 22, 2008.
97. On June 6, 2008, Mr. Broder was discharged from Foote Hospital and returned to DWH. He remained there until June 23, 2008, when he was transferred back to Parnall.
98. On July 3, 2008, Mr. Broder was prescribed oral chemotherapy. 99. During July 2008, Mr. Broder continued to suffer from hypocalcemia. 100. In the late summer of 2008, Mr. Broder suffered fainting spells, episodes of low blood pressure, and fatigue.
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101. In September 2008, Mr. Broder had pain in the left side of his neck and his face. 102. In October 2008, Mr. Broder experienced throat soreness and difficulty swallowing. 103. On October 17, 2008, Mr. Broder was discharged from Parnall Correctional Facility, having completed his sentence. 104. On November 21, 2008, Mr. Broder had a seizure in the middle of the night and was rushed to Henry Ford Macomb Hospital. Mr. Broder suffered a second seizure at the hospital and his heart rate dropped very low. 105. At Henry Ford an ENT performed a scoping that revealed thickened, asymmetrical tissue in Mr. Broder’s throat. Plans were made to transfer Mr. Broder to the U of M Medical Center in Ann Arbor once he was stabilized and a bed became available. 106. On December 3, 2008, Mr. Broder was discharged from Henry Ford Macomb Hospital and transferred to the U of M where he was evaluated in the otolaryngology clinic. A biopsy was performed, showing recurrent squamous cell carcinoma. 107. On or about December 6, 2008, Mr. Broder was discharged from the U of M. At that point his cancer was viewed as terminal and palliative care was his only option. Dr. Chepeha thought Mr. Broder might survive as long as five months, and possibly 10-11 months if he could tolerate oral chemotherapy, and if the cancer responded to it. 108. On December 8, 2008, Mr. Broder was found unconscious on his bedroom floor. He was rushed to St. John Macomb – Oakland Hospital where doctors chemically induced a coma to try to bring his seizures under control. 109. When the doctors tried to bring Mr. Broder out of the coma a few days later, he did not regain consciousness. 110. Mr. Broder died on December 13, 2008. His death certificate lists recurrent supraglottis carcinoma as the cause of death. 111. From May 22, 2008, until his death, Mr. Broder could make noises with his mouth and throat but could not speak and be understood. He was forced to gesture with his hands and scribble notes on scraps of paper in order to make the simplest requests. 112. Mr. Broder was unable to use an electronic voice box for lack of speech therapy and because of the condition of this throat after the May 2008 surgery.
Causation 113. The defendants’ failure to timely diagnose and treat Mr. Broder’s cancer in 2001-
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2002 stemmed in part from their failure to train or supervise staff in a way that would ensure prompt and effective treatment of life-threatening diseases.
114. Defendants Pramstaller and Epp had a non-delegable duty to create customs, policies, practices, and procedures to ensure timely and effective treatment of life-threatening diseases, and to ensure that such treatment was in fact provided.
115. Defendants Pramstaller and Epp had a non-delegable duty to train or supervise staff in a way that ensured timely and effective treatment of life-threatening disease, and to ensure that such treatment was in fact provided.
116. Defendants CMS and Hutchinson had the same duty to implement customs, policies, practices, and procedures, and to train or supervise staff, to ensure timely and effective treatment of life-threatening diseases, and to ensure that such treatment was in fact provided.
117. Defendant Mathai had a duty to ensure timely and effective treatment of life-threatening diseases, and to ensure that such treatment was in fact provided to her patient.
118. Mr. Broder’s cancer that recurred in 2007-2008 was directly linked to the cancer that was late-diagnosed and late-treated in 2001-2002.
LEGAL CLAIMS 42 U.S.C. § 1983 119. The defendants, acting under color of state law, demonstrated deliberate indifference to Mr. Broder’s serious medical needs, subjecting him to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, as actionable under 42 U.S.C. § 1983. 120. The defendants demonstrated deliberate indifference by failing to diagnose Mr. Broder’s throat cancer within a reasonable time, by failing to confirm their suspicions through laboratory tests that he had cancer within a reasonable time, and, once Mr. Broder’s cancer was diagnosed, by failing to treat him within a reasonable time. 121. Even after treatment, the defendants demonstrated deliberate indifference by failing to test Mr. Broder for recurrence of his cancer within a reasonable time. 122. The defendants’ repeated delays in diagnosis and treatment allowed Mr. Broder’s cancer to progress from Stage I to at least Stage III T2N1, necessitating chemotherapy in addition to radiation treatment, and insertion of a PEG tube, causing other complications and side effects, as well as the increased risk of a recurrence of Mr. Broder’s cancer, the eventual recur-
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rence of his cancer, and ultimately, his death. 123. The violation of Mr. Broder’s Eighth Amendment rights stemmed in part from the
MDOC defendants’ and CMS defendants’ customs, practices, procedures, and policies that allowed or facilitated the deliberate indifference to his medical needs..
124. Specifically, the defendants with the authority to create customs, practices, procedures, or policies failed to draft, promulgate, adopt, or enforce appropriate rules, regulations, procedures, orders, or protocols that could and should have prevented the acts of deliberate indifference committed against Mr. Broder, and that also could and should have prevented the injuries he suffered.
125. Alternatively, the defendants with the authority to create customs or policies promulgated or implemented policies that caused the failure to timely diagnose and treat Mr. Broder’s life-threatening disease and also failed to ensure that he got timely testing, diagnosis, care, and treatment,
126. The defendants with the authority to train staff failed to train them sufficiently to prevent the deliberate indifference to the plaintiff’s reasonable medical needs.
127. As a direct and proximate result of the defendants’ deliberate indifference, their customs and policies, and their failure to train, from 2001 to 2007 Mr. Broder suffered harm including but not limited to long-term sore throat, weight loss, weak voice, difficulty swallowing, suppression of his salivary glands, and severe tooth decay; he was also forced to undergo three courses of chemotherapy and insertion of a PEG tube; he suffered physical pain, mental anxiety, emotional anguish, and an increased risk that his cancer would recur.
128. As a direct and proximate result of the defendants’ deliberate indifference, their customs and policies, and their failure to train, from 2007 to 2008 Mr. Broder suffered harm including but not limited to recurrence of his cancer, fainting spells, difficulty breathing, tracheostomy, removal of his larynx and radical reconstruction with skin grafts, cellulitis, hypocalcemia, loss of the ability to speak, physical disfigurement, seizures, and death; he suffered physical pain, mental anxiety, emotional anguish, and the loss of his life with all attendant future economic losses.
129. The defendants’ deliberate indifference, their customs and policies, and their failure to train directly and proximately caused the recurrence of Mr. Broder’s cancer and Mr. Broder’s death.
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130. At all relevant times the law was clearly established such that qualified immunity is no defense to the plaintiff’s constitutional claims.
Medical Malpractice/Negligence 131. The defendants owed a duty to Mr. Broder to provide him with reasonable medical care and with medical care consistent with the standard of care for the area where he lived. 132. The defendants’ repeated failures to provide timely testing, diagnosis, care, and treatment of Mr. Broder’s life-threatening disease, as described above, constitute medical malpractice under Michigan law. 133. The defendants failed to draft, promulgate, adopt, or enforce appropriate rules, regulations, policies, procedures, orders, and protocols that could and should have prevented the acts of medical malpractice committed against Mr. Broder and that also could and should have prevented the injuries that he suffered. 134. The defendants failed to train staff sufficiently to prevent the acts of medical malpractice described above. 135. Mr. Broder has complied with the notice of claim and the affidavit of merit provisions of the Michigan medical malpractice statute (MCL 600.2912b).2 136. The defendants violated the applicable standard of care by failing to timely diagnose and treat Mr. Broder’s Stage I cancer, allowing Mr. Broder’s cancer to progress to at least Stage III T2N1; by failing to timely treat the side effects of Mr. Broder’s late-stage cancer and treatment; and by failing to provide regular follow-up care and treatment for Mr. Broder. 137. The defendants further failed to provide reasonable care by delaying Mr. Broder’s access to physicians for diagnosis of his cancer and by delaying his prescribed treatment. 138. As a direct and proximate result of the defendants’ negligence/medical malpractice, Mr. Broder suffered the harms described in paragraphs 127-128 above, plus all other damages allowed by state law.
The Standard of Care 139. A reasonable general practitioner, internist, or health care provider would have made sure that Mr. Broder saw an ENT specialist within four to eight weeks after July 11, 2001, when Mr. Broder first presented with a long-term sore throat in conjunction with weight loss,
2 Because this amended complaint simply brings the claims up to date in light of the Court’s previous rulings, and adds the survival and wrongful death claims in light of Mr. Broder’s death, the affidavits of merit filed earlier do not change and are incorporated by reference.
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difficulty swallowing, and loss of voice. 140. A reasonable general practitioner, internist, or health care provider would have
made sure that Mr. Broder saw an ENT specialist within one to two weeks after October 12, 2001, when Dr. Antonini first suspected that Mr. Broder had throat or stomach cancer.
141. A reasonable general practitioner, internist, health care provider, or ENT specialist would have made sure that Mr. Broder had laboratory tests (to establish or eliminate a diagnosis of cancer) within four to eight weeks after October 12, 2001, when Dr. Antonini first suspected that Mr. Broder had throat or stomach cancer.
142. A reasonable general practitioner, internist, health care provider, or ENT specialist would have performed a microlaryngoscopy and vocal cord stripping to establish or eliminate a diagnosis of cancer within two to four weeks after November 13, 2001, when an ENT specialist identified a lesion on Mr. Broder’s larynx.
143. A reasonable general practitioner, internist, health care provider, or ENT specialist would have begun radiation therapy on Mr. Broder no later than one month after January 14, 2002, when lab tests confirmed the diagnosis of Mr. Broder’s Stage I invasive and in-situ moderately differentiated keratinizing squamous left vocal cord carcinoma.
144. A reasonable general practitioner, internist, health care provider, or ENT specialist would have prescribed medications necessary to counteract the suppression of Mr. Broder’s salivary glands to prevent damage to his teeth.
145. A reasonable general practitioner, internist, health care provider, or ENT specialist would have provided regular follow-up visits with an ENT specialist to monitor the condition of Mr. Broder’s larynx and to determine if his cancer had recurred.
146. A reasonable general practitioner, internist, health care provider, or ENT specialist would have performed a biopsy and microlaryngoscopy within two to three months after an ENT specialist recommended those tests on November 5, 2002, to determine if Mr. Broder’s cancer had recurred.
Breach of the Standard of Care 147. Mr. Broder was not referred to an ENT specialist until October 12, 2001, about 12 weeks after he presented with long-term sore throat in conjunction with significant weight loss, difficulty swallowing, and loss of voice; he should have been referred to an ENT specialist four to eight weeks after he presented with these symptoms, if his condition did not improve.
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148. Mr. Broder did not see an ENT specialist until November 13, 2001; he should have seen an ENT specialist within two weeks of October 12, 2001, when Dr. Antonini first suspected cancer.
149. Surgical and laboratory tests were not performed to establish or eliminate a diagnosis of cancer until January 11 and January 14, 2002, some 13 weeks after Dr. Antonini suspected that Mr. Broder had throat or stomach cancer (on October 12, 2001); the tests should have been performed within four to eight weeks of the suspected diagnosis.
150. The surgical and laboratory tests were not performed until approximately eight weeks after an ENT specialist identified a lesion on Mr. Broder’s larynx (on November 13, 2001); the defendants should have ensured that a microlaryngoscopy and vocal cord stripping and laboratory tests were performed within two to four weeks of the ENT specialist’s identification of a lesion on Mr. Broder’s larynx.
151. Mr. Broder did not undergo any treatment of his throat cancer until April 2, 2002, approximately 11 weeks after it was diagnosed on January 14, 2002; the defendants should have ensured that Mr. Broder was treated within four weeks of the confirmed diagnosis.
152. Mr. Broder did not receive medications necessary to counteract the effects of his chemotherapy or the suppression of his salivary glands; the defendants should have regularly provided Mr. Broder with the necessary medications.
153. Mr. Broder did not have regular follow-up visits with an ENT specialist to monitor the condition of his larynx and to determine if his cancer has recurred; the defendants should have provided Mr. Broder with regular follow-up visits with an ENT specialist.
154. Mr. Broder did not receive a post-treatment microlaryngoscopy and biopsy until April 17, 2003, more than five months after an ENT specialist recommended these procedures (on November 5, 2002) to check for a recurrence of Mr. Broder’s laryngeal cancer; the defendants should have made sure that these procedures were performed within two to three months of the ENT specialist’s recommendation for such tests.
Damages Proximately Caused by the Breach of the Standard of Care
155. The defendants’ failure to timely refer Mr. Broder to an ENT specialist and then promptly to act on his diagnostic and treatment recommendations caused Mr. Broder’s cancer to progress from Stage I to at least Stage III T2N1, lowering his statistical life expectancy.
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156. The defendants’ failure to replace Mr. Broder’s partial denture between August 2002 and October of 2003 prevented him from eating properly despite his need to do so to recover promptly from his chemotherapy and radiation treatments.
157. The defendants’ failure to timely provide medications necessary to counteract the effects of his treatment, including the suppression of his salivary glands, caused Mr. Broder to suffer side effects and significant dental problems.
158. From 2001 to 2007, the defendants’ breaches of the standard of care caused Mr. Broder to suffer physical pain, mental anxiety, and emotional anguish because of the complications and side effects of additional treatments needed to remedy his late stage laryngeal cancer and because of the uncertainty caused by the delays in diagnosis, treatment, and follow-up.
159. From 2007 to 2008, the defendants’ breaches of the standard of care caused the recurrence of Mr. Broder’s cancer that led to his death.
160. The defendants’ failure to timely diagnose and treat Mr. Broder’s throat cancer proximately caused him to suffer all of the harm described in paragraphs 127-128 above.
161. The defendants’ breaches of the standard of care limited Mr. Broder’s employment opportunities and his ability to earn an income once he was released from prison.
Michigan’s Survival and Wrongful Death Act (MCL 600.2921-2922) 162. Mr. Broder’s estate is entitled to receive and seeks compensation for the pain and suffering detailed above, which Mr. Broder endured as a result of the defendants’ violation of his civil rights, and for medical malpractice, breaches of the standard of care, and negligence, to the same extent that Mr. Broder would have been entitled to such compensation. 163. Mr. Broder’s estate may seek damages for all who claim and are entitled to recover damages, including but not limited to qualified devisees or beneficiaries of Mr. Broder’s will, for loss of society, companionship, and support, and other things of value such as funeral and burial expenses incurred as a result of his death, if any such claimants come forward with a valid claim. 164. Mr. Broder’s estate is entitled to receive and seeks compensation for the uninsured medical expenses incurred for the treatment of his cancer and its complications and side effects after his release from prison.
RELIEF 165. Wherefore, the plaintiff’s estate, by the personal representative, asks the Court to:
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a. Grant the plaintiff compensatory, exemplary, and punitive damages com-
mensurate with his injuries for all qualified claims and claimants, and enter a
judgment for the plaintiff;
b. Declare that Mr. Broder’s constitutional and state law rights were violated by the
defendants;
c. Award the plaintiff his costs, interest from the date of filing, and reasonable
attorneys’ fees as permitted by state or federal law; and
d. Grant such further relief as the Court sees fit.
JURY DEMAND
The plaintiff requests a trial by jury of all issues so triable.
Respectfully submitted,
/s/ Paul D. Reingold Michigan Clinical Law Program 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu - P27594

Dated: March 24, 2009

Kate Ides and Meredith Weill Student Attorneys

Proof of Service

The above second amend complaint and jury demand were filed using the court’s ECF system, which will send same-day e-mail notice to all counsel of record.

Dated: April 24, 2009

/s/ Paul D. Reingold pdr@umich.edu - P27594

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 Case 2:03-cv-75106-GER-PJK Document 79 Filed 11/30/2006 Page 1 of 55

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER,

Plaintiff,

vs

Case No. 03 75106

Honorable Gerald E. Rosen

CRAIG HUTCHINSON, its medical director, and AUBERTRO ANTONINI, and BENCY MATHAI, and employees of the Michigan Department of Corrections, namely: PATRICIA L. CARUSO, Director, GEORGE PRAMSTALLER, Medical Director, HENRY GRAYSON, former warden, and JAN EPPS, Regional Medical Director in their individual and official capacities,

Defendants. ______________________________________________________________________________

MICHIGAN CLINICAL LAW PROGRAM Paul D. Reingold (P27594) Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, Michigan 48109-1215 (734) 763-4319

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Attorneys for Defendants Craig Hutchinson, Aubertro Antonini and Bency Mathai 40950 North Woodward Avenue, Suite 120 Bloomfield Hills, Michigan 48304 (248) 644-6326

Kevin Thom (P36178) Assistant Attorney General Attorney for Defendants Caruso,
Pramstaller and Epps Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 _____________________________________________________________________________

MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT BY DEFENDANTS, BENCY MATHAI, M.D. AND CRAIG HUTCHINSON, M.D.

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NOW COME Defendants, Bency Mathai, M.D. and Craig Hutchinson, M.D., by and through their attorneys, Chapman and Associates, P.C., and for their Motion to Dismiss and/or for Summary Judgment, pursuant to FRCP 12(b)(6) and/or FRCP 56, state as follows:
1. Plaintiff filed the present action on or about December 24, 2003 alleging deliberate indifference to a serious medical need pursuant to 42 USC 1983 against all Defendants.
2. Plaintiff also has a State claim for medical malpractice against Defendant, Bency Mathai, M.D., only.
3. Plaintiff’s Complaint concerns medical treatment and care provided by Defendants concerning the diagnosis and treatment of Plaintiff’s laryngeal cancer.
4. Defendants were never deliberately indifferent to Plaintiff’s serious medical needs, therefore, Plaintiff’s claims pursuant to 42 USC 1983 must be dismissed pursuant to FRCP 56.
5. Defendant, Dr. Hutchinson, did not have any personal involvement with Plaintiff, therefore, Plaintiff’s claim against him pursuant to 42 USC 1983 should be dismissed pursuant to FRCP 56.
6. In the event that Plaintiff’s constitutional claims against Defendants are dismissed, the Court should decline to retain supplemental jurisdiction concerning Plaintiff’s remaining medical malpractice claim.
7. Should the Court retain supplemental jurisdiction over Plaintiff’s medical malpractice claim, Plaintiff’s medical malpractice claim must be dismissed pursuant to FRCP 12(b)(6) for the following reasons:
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a. Plaintiff failed to file an Affidavit of Merit with his Complaint as required by MCL 600.2912d;
b. Plaintiff’s Affidavit of Merit does not comply with MCL 600.2912d(4) as required by Mouradian and Pornpitchit;
c. Plaintiff’s Notice of Intent does not comply with MCL 600.2912b as required by Mecosta;
8. Dr. Mathai is also entitled to summary judgment and/or partial summary judgment of Plaintiff’s medical malpractice claim pursuant to FRCP 56 because Plaintiff’s own expert in internal medicine admitted during his deposition that there was no delay by Dr. Mathai as alleged in Plaintiff’s Complaint.
9. Defendants rely on the facts and arguments set forth in their attached supporting brief as if more fully restated herein.
10. Pursuant to Local Rule 7.1 Defendants have sought concurrence for dismissal of Plaintiff’s Complaint on numerous occasions and same has been denied.
WHEREFORE, Defendants, Bency Mathai, M.D. and Craig Hutchinson, M.D., pray that this Honorable Court shall dismiss the present case with prejudice for the reasons stated herein.
Respectfully submitted, CHAPMAN AND ASSOCIATES, P.C.

Dated: November 30, 2006

s/Brian J. Richtarcik CHAPMAN AND ASSOCIATES, P.C. 40950 N Woodward, Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326 Brichtarcik@chapmanandassociates.com P49390

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STEVEN BRODER,

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Plaintiff,

vs

Case No. 03 75106

Honorable Gerald E. Rosen

CRAIG HUTCHINSON, its medical director, and AUBERTRO ANTONINI, and BENCY MATHAI, and employees of the Michigan Department of Corrections, namely: PATRICIA L. CARUSO, Director, GEORGE PRAMSTALLER, Medical Director, HENRY GRAYSON, former warden, and JAN EPPS, Regional Medical Director in their individual and official capacities,

Defendants. ______________________________________________________________________________

MICHIGAN CLINICAL LAW PROGRAM Paul D. Reingold (P27594) Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, Michigan 48109-1215 (734) 763-4319

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Attorneys for Defendants Craig Hutchinson, Aubertro Antonini and Bency Mathai 40950 North Woodward Avenue, Suite 120 Bloomfield Hills, Michigan 48304 (248) 644-6326

Kevin Thom (P36178) Assistant Attorney General Attorney for Defendants Caruso,
Pramstaller and Epps Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 _____________________________________________________________________________
BRIEF IN SUPPORT OF MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT BY DEFENDANTS, BENCY MATHAI, M.D. AND CRAIG HUTCHINSON, M.D.

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TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-vi
INDEX OF EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT OF ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
CONTROLLING AUTHORITY FOR RELIEF SOUGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Substantive History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Dismissal Under Rule 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2. Summary Judgment Under Rule 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARGUMENT I: Defendants Mathai And Hutchinson Were Not Deliberately Indifferent To Plaintiff’s Serious Medical Needs, Therefore Plaintiff’s Claim Pursuant To 42 USC 1983 Must Be Dismissed Pursuant To FRCP 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. There Was No Personal Involvement By Dr. Hutchinson . . . . . . . . . . . . 15 B. Dr. Mathai Was Not Deliberately Indifferent . . . . . . . . . . . . . . . . . . . . . 17
ARGUMENT II: Plaintiff Fails To State A Claim Against Defendants Mathai And/Or Hutchinson For Negligence, Gross Negligence, “Reckless Indifference, ” And/Or Willful And Wanton Misconduct, Upon Which Relief May Be Granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Plaintiff’s Claim Sounds In Medical Malpractice, Not Ordinary Negligence Or Gross Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. There Is No Independent Claim for “Reckless Indifference” or “Willful and Unwanton Misconduct” Separate From Plaintiff’s Deliberate Indifference Claim Upon Which Relief May Be Granted . . . 22
ARGUMENT III: Plaintiff’s Amended Complaint Fails To State A
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Claim For Medical Malpractice Upon Which Relief May Be Granted And Must Be Dismissed Pursuant To FRCP 12(b)(6). . . . . . . . . . . . . . . . . . . . . 23 A. Plaintiff Did Not File An Affidavit Of Merit. . . . . . . . . . . . . . . . . . . . . . 23 B. Plaintiff’s Notice of Intent Failure Does Not Comply
With MCL 600.2912d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 C. Plaintiff’s Affidavits Of Merit Fail To Set Forth The
Required Elements In Order To Certify The Merit of Plaintiff’s Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 D. Plaintiff’s NOI And/Or Affidavit Of Merit Fail To Sufficiently Specify The Element Of Proximate Cause Pursuant To MCL 600.2912b(4) And/Or MCL 600.2912d(1)(d). . . . . . 34 ARGUMENT IV: Defendant Dr. Mathai Is Entitled To Summary Judgment Concerning Plaintiff’s Medical Malpractice Claim Pursuant To FRCP 56 Because Plaintiff’s Experts Admit There Was No Delay By Dr. Mathai. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 RELIEF REQUESTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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INDEX OF AUTHORITIES

CASES:

PAGE

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cir.) . . . . . . . . . . . . . . . . . . . . . 13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bailey v. Pornpichit, 2006 Mich App Lexis 2459 (unpublished) . . . . . . . . . . . . . . . . . . . . . . . . 35

Barlett v North Ottawa Community Hosp, 244 Mich. App. 685, 691; 625 N.W.2d 470 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Borman’s Inc. v. Lake State Dev. Co., 60 Mich App 175, 187, 230 NW2d 363 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Bouldis v. United States Suzuki Motor Corp., 711 F.2d 1319 (6th Cir. 1983) . . . . . . . . . . . . . . 14

Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Brown v. Costello, 905 F.Supp. 65 (N.D. N.Y., 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 16

Bryant v. Oakpointe Villa Nursing Centre, 471 Mich 411, 684 NW2d 864 (2004) . . . . . . . . . . 21

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Conley v. Gibson, 355 U.S. 41, 54-46 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Craig v Oakwood Hosp, 471 Mich. 67, 86-88; 684 N.W.2d 296 (2004) . . . . . . . . . . . . . . . . . . 36

Craighead v. E.F. Hutton & Co., 899 F.3d 485, 489-90 (6th Cir. 1990) . . . . . . . . . . . . . . . . . . . 13

DeMann v. Ottawa County Sheriff’s Division, 2001 U.S. Dist. LEXIS 19260 (W.D. Mich, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Dorris v. Detroit Osteopathic Hosp Corp., 460 Mich 26, 46, 594 NW2d 455 (1999) . . . . . . 21, 22

Duchon v. Cajon Co., 791 F.2d 43, 46 (6th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ensink v Mecosta County Gen. Hosp., 262 Mich App 518, 687 NW2d 143 (2004) . . . . . . . . . 37

Estelle v. Gamble, 429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 17

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Farmer v. Brennen, 511 U.S. 825 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Gabehart v. Chapleau, 1997 WL 160322 at *2 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . 16 Geralds v Munson Healthcare, 259 Mich. App. 225, 240; 673 N.W.2d 792 (2003) . . . . . . . 26, 33 Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Gomez v. Toledo, 446 U.S. 635 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 17 Grzesick v Cepela, 237 Mich. App. 554, 562; 603 N.W.2d 809 (1999) . . . . . . . . . . . . . . . . . . . 26 Gulley-Reeves v. Baciewicz, 260 Mich.App. 478, 679 N.W.2d 98 (2004) . . . . . . . . . . . . . . . . 28 Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S.Ct. 1136 (1965) . . . . . . . . . . . . . . . . . . . . 24 Hicks v. Frey, 992 F. 2d 1450, 1455 (6th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Judd v. Heartland Health Care Center, 2001 U.S. Dist. LEXIS 21747 (E.D. Mich, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Kowalski v Fiutowski, 247 Mich. App. 156, 163; 635 N.W.2d 502 (2001) . . . . . . . . . . . . . . . . 26 Lenz v. Erdmann Corp., 773 F.2d 62 (6th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Monell v. Dep’t of Social Services of New York City, 436 US 658, 98 S Ct 2018 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Moore v. Buckles, 404 F.Supp. 1382, 1384(3) (D.C. Tenn. 1975) . . . . . . . . . . . . . . . . . . . . . . . 15 Mouradian v Goldberg, 256 Mich. App. 566, 572-575; 664 N.W.2d 805 (2003) . . . 26, 27, 33, 34 Newsome v. Bono, 2006 Mich. App. LEXIS 3305, 1-2 (November 14, 2006) . . . . . . . . . . . . . 26 Nippa v. Botsford Gen. Hosp., 251 Mich. App. 664, 675, 651 NW2d 103 (2002)23, 24, 25, 26, 27 Price v. Parks-Belk, Inc., 72 F.R.D. 84 (D.C. Tenn. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Ribble v. Lucky, 817 F. Supp. 653, 655 (E.D. Mich. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Roberts v. Atkins, 470 Mich. 679, 648 NW2d 711 (2004) . . . . . . . . . . . . . . . . . . . . 28, 29, 30, 35 Ross v. Meagan, 638 F.2d 646, 650 (3d Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Sanderfer v. Nichols, 62 F.2d 151, 154 (6th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 Scarsella v Pollak, 461 Mich. 547, 550; 607 N.W.2d 711 (2000) . . . . . . . . . . . . . . . . . . . . . 23, 27 Simmons v. Apex Drug Stores, 201 Mich App 250, 506 NW2d 562 (1993) . . . . . . . . . . . . . . . 21 Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983) . . . . . . . . . . . . 22 Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . 13 Street v. J.C. Bradford & Co., 886 F.2d 1472, Fed. Sec. L. Rep. P 94,768 (6th Cir.,Tenn. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992) . . . . . . . . . . . . . . . 17 Ward. v Smith, 1996 WL 627724, *1 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 West Lake v. Lucas, 537 F.2d 857 (6th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 13, 19 Williams v. Mehra, 186 F.3rd 685, 691 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 17 Wilson v. Seiter, 501 U.S. 294, 297 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 15, 17 Youngberg v. Romeo, 457 U.S. 307, 321 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Zinermon v. Burch, 494 U.S. 113, 117 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
STATUTES: MCL 600.2169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 32, 40 MCL 600.2912a(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 MCL 600.2912b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii, 12, 28, 29, 32, 35 MCL 600.2912b(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 31, 34 MCL 600.2912b(4)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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MCL 600.2912b(4)( c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32 MCL 600.2912d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii, 23, 24, 25, 25, 26, 27, 32, 33, 34, 35 MCL 600.2912d(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 32 MCL 600.2912d(1)(a)-(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34, 36, 37 MCL 600.2912e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 25, 26 MCL 600.2916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
COURT RULES: MCR 2.116( c)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 MCR 2.118(A)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
FEDERAL RULES OF CIVIL PROCEDURE: Fed. R. Civ. P. 12(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 20, 22, 23, 27, 28, 32, 34, 37 Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii. 13, 20, 37, 38, 40, 41
FEDERAL STATUTES: 42 USC § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 12, 14, 15, 17, 22
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Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Exhibit K Exhibit L Exhibit M Exhibit N Exhibit O Exhibit P

INDEX OF EXHIBITS MDOC Medical Chart Deposition of Audberto Antonino, MD Deposition of Bency Mathai, MD Deposition of Ronald Kornak, MD Deposition of James Hayman, MD Deposition of Christine Tsien, MD Deposition of John Axelson, MD Deposition of Carol Bradford, MD Notice of Intent (4/29/2003) Original Complaint (filed 12/24/03) Affidavits of Merit First Amended Complaint Affirmative Defenses Specialty Consults/Reports by MDOC Deposition of Brent Williams, MD Bailey v. Pornpichit, 2006 Mich App Lexis 2459 (unpublished)

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STATEMENT OF ISSUES PRESENTED

WHETHER DEFENDANT DR. HUTCHINSON IS ENTITLED TO SUMMARY JUDGMENT BECAUSE HE DID NOT HAVE PERSONAL INVOLVEMENT.

Defendant CMS Answers:

Yes

Plaintiff Answers:

No

WHETHER DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF DOES NOT MEET THE SUBJECTIVE ELEMENT OF A DELIBERATE INDIFFERENCE CLAIM AND MERELY ALLEGES A DIFFERENCE OF MEDICAL OPINION

Defendants Answers:

Yes

Plaintiff Answers:

No

WHETHER PLAINTIFF’S NOTICE OF INTENT FAILS TO CONFORM TO MCL 600.2912b.

Defendants Answers:

Yes

Plaintiff Answers:

No

WHETHER PLAINTIFF’S AFFIDAVIT OF MERIT FAILS TO CONFORM TO MCL 600.2912d.

Defendants Answers:

Yes

Plaintiff Answers:

No

WHETHER PLAINTIFF’S MEDICAL MALPRACTICE CLAIM MUST BE DISMISSED WITH PREJUDICE BECAUSE THE STATUTE OF LIMITATIONS ARE EXPIRED.

Defendants Answers:

Yes

Plaintiff Answers:

No

WHETHER PLAINTIFF’S MEDICAL MALPRACTICE CLAIM MUST BE DISMISSED PURSUANT TO FRCP 56.

Defendants Answers:

Yes

Plaintiff Answers:

No

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CONTROLLING AUTHORITY FOR RELIEF SOUGHT In order to state a claim under 42 U.S.C. §1983 Plaintiff must allege facts which demonstrate deprivation or violation of a federally protected right, privilege, or immunity. Gomez v. Toledo, 446 U.S. 635 (1980). A claim made by a convicted prisoner that his Constitutional right to medical treatment was violated is analyzed under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97 (1976). To state a §1983 claim for a violation of a prisoner's Eighth Amendment rights due to inadequate medical care, the prisoner must allege facts evidencing a deliberate indifference to serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle, 429 U.S. 97. Plaintiff must allege personal involvement by Defendant, which is required pursuant to 42 U.S.C. §1983, and liability in a §1983 claim cannot be based on a theory of respondeat superior. Monell v. Dep’t of Social Services of New York City, 436 US 658, 98 S Ct 2018 (1978). A Plaintiff seeking to impose liability upon a municipality, or as in the present case a private corporation, under §1983 must prove that constitutional harm suffered was a result of official policy or custom of the political subdivision. Brown v. Costello, 905 F.Supp. 65 (N.D. N.Y., 1995). To succeed on a claim of deliberate indifference, Plaintiff must satisfy two elements, an objective one, and a subjective one. He must show he had a serious medical need, and he must show that Defendant, being aware of that need, acted with deliberate indifference to it. Wilson v. Seiter, 501 U.S. 294, 300 (1991); Williams v. Mehra, 186 F.3rd 685, 691 (6th Cir. 1999). Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Estelle, 429 U.S. at 105-106. Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis or treatment are not enough to state a deliberate indifference claim. West Lake v. Lucas, 537 F.2d 857 (6th Cir. 1976).
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FACTS A. Substantive History.
The Plaintiff, Steven Broder (#226094), is a prisoner incarcerated by the Michigan Department of Corrections (“MDOC”) at the Parnall Correctional Facility in Jackson, Michigan since 1994. In May 2001, Plaintiff’s primary care physician at the Parnall Facility was Defendant, Bency Mathai, M.D.1 Dr. Mathai became licensed as a physician in Michigan in 1997, and she is board certified in Internal Medicine.
On May 4, 2001, Plaintiff complained to Dr. Mathai for the first time about a “sore throat,” “now recovering.” She observed his vitals were stable, his weight was 161, his lungs clear, and throat normal. She instructed Plaintiff to use “warm gargles” on his throat twice daily (“BID”) and to return to the clinic in 1 month to recheck his condition. (Exhibit A, p. 58). She also ordered Plaintiff to receive Drixoral for his sore throat. (Exhibit A, p. 318). Plaintiff did not return to the clinic in 1 month as ordered.
On May 31, 2001, nursing staff responded to a kite from Plaintiff and delivered him a 30 day supply of Motrin tablets. (Exhibit A, pp. 58, 318). On June 26, 2001, nursing staff provided Plaintiff with another 30 day supply of Motrin. (Exhibit A, pp. 57, 318). No complaints from Plaintiff were observed. Dr. Mathai was not consulted or informed by the nursing staff.
On July 11, 2001, Plaintiff received his annual health screening by Don Smith, RN, who observed Plaintiff’s weight decreased while he was on a kosher diet, but he regained 8 pounds in 2 weeks after he returned to a regular diet. Plaintiff “...had cold/sinus x 2-3 weeks with cough.”
1 Dr. Mathai is an independent contractor for Correctional Medical Services, Inc. (“CMS”). CMS contracted with the State of Michigan to provide certain onsite health care services, and certain offsite specialty medical services, to prisoners incarcerated by the MDOC.
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(Exhibit A, p. 57). Dr. Mathai was not consulted or informed. Dr. Mathai examined Plaintiff on August 20, 2001, with the Health Unit Manager, Pat
Barrett, present. Plaintiff’s weight was 150 pounds, and he complained of a sore throat for the past 2 weeks, but he denied any other complaints. There was no cough, fever, or bleeding. Dr. Mathai observed Plaintiff’s throat was congested, but there were no lymph nodes. A rectal exam was conducted and was negative. A slight increase in blood pressure was observed, therefore, Dr. Mathai ordered Plaintiff’s blood pressure to be monitored. She also ordered a CBC panel and “CXR” (chest x-ray), and for Plaintiff to return to the clinic in 2 months. (Exhibit A, p. 56). Dr. Mathai wrote orders for Plaintiff to receive a CBC panel, blood pressure monitoring for 2 weeks, and “Drixoral 1 tab po bid x 2wks.” (Exhibit A, p. 321).
Nursing staff monitored Plaintiff’s blood pressure as ordered, and observed on each occasion that Plaintiff had an “asymptomatic sore throat.” (Exhibit A, p. 55). On August 29, 2001, Dr. Mathai observed Plaintiff’s CBC panel results. (Exhibit A, p. 235). She observed an increase in Plaintiff’s white blood cell count “with no left shift,” and ordered a repeat CBC. (Exhibit A, p. 55).
On September 4, 2001, Plaintiff was examined in sick call by Connie Ives, RN in response to a “kite” by Plaintiff. Plaintiff informed her “I’m not sure if I still have a sore throat when I wake up.” The nurse observed Plaintiff’s throat was not red or swollen, and that Plaintiff was a “smoker for many years.” There was no cervical lymph node swelling. Plaintiff did not complain of difficulty swallowing. The nurse characterized Plaintiff as a “post nasal drip irritated throat smoker.” Plaintiff was given ASA in hot water to gargle 3 times daily, and instructed to issue a kite if his symptoms increased. (Exhibit A, p. 54). Dr. Mathai was not consulted or informed.
On September 11, 2001, Dr. Mathai reviewed Plaintiff’s chart, observed the progress note
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from September 4th, and reviewed Plaintiff’s CBC results. Plaintiff’s WBC was 19.6, which Dr. Mathai considered normal. Plaintiff was “clinically asymptomatic.” Dr. Mathai planned to reassess Plaintiff in 1 month. (Exhibit A, p. 54).
Dr. Mathai was on a vacation leave from October 1, 2001 through October 21, 2001. Audberto Antonini, M.D. covered for her on October 12, 2001. He observed Plaintiff’s weight was 144 pounds. Plaintiff stated he lost 20 pounds in spite of eating well, and he experienced “progressive dysphagia [difficulty swallowing] since April, sore throat and hoarseness.” (Exhibit A, p. 52). Dr. Antonini suspected Plaintiff may have “laryngeal or esophageal malignancy.” (Exhibit A, p. 53). He suspected laryngeal cancer primarily due to the following reasons: Plaintiff’s complaint of progressive dysphagia since April; sore throat and hoarseness since April “treated several times before”; and Plaintiff’s own subjective observation that he was “starting to observe that he is progressively having difficulty to swallow”).2 (Exhibit A, p. 52-53; Exhibit B, pp. 14-15). Therefore, he ordered Plaintiff to receive an ENT and GI specialty consultation, and return to the clinic in 4 weeks. (Exhibit A, pp. 53, 317). Dr. Antonini submitted an authorization request to CMS the same day requesting the ENT and GI consult. (Exhibit A, pp. 199, 202). The request for the ENT consultation was approved by CMS on November 2, 2001, and scheduled to occur on November 13, 2001 with Ronald Kornak, M.D. offsite at Duane Waters Hospital. (Exhibit A, p. 200). Dr. Antonini had no further contact with Plaintiff. On November 1, 2001, Dr. Mathai reviewed Plaintiff’s chart and observed “Pt. currently being evaluated for wt. loss.” (Exhibit A, p. 51).
2 There is no indication that prior to October 12, 2001, Plaintiff had dysphagia or hoarseness, or that his sore throat was continuous. (Exhibit A, pp. 52-58).
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Plaintiff was seen as scheduled at the ENT clinic by Dr. Kornak (otolarygologist) on November 13, 2001. He observed Plaintiff had a history of “chronic hoarseness” as well as “dysphagia and a weight loss of about 20 pounds over six months.” (Exhibit A, p. 180). He did not observe “anything at the glottic introitus causing dysphagia.” (Exhibit A, p. 180). The neck palpation was also negative, “but the larynx revealed lesions on both cords causing his hoarseness.” (Exhibit A, p. 180). Dr. Kornak could not rule out cancer and therefore recommended a microlaryngoscopy with vocal cord stripping at Foote Hospital in 2-3 weeks. (Exhibit A, p. 195).
On November 14, 2001, Dr. Mathai reviewed Dr. Kornak’s report, and submitted a request for authorization by CMS for the microlaryngoscopy and vocal cord stripping procedures to the MDOC patient services liaison. (Exhibit A, p. 193). The MDOC faxed the request to CMS on November 16, 2001. (Exhibit A, p. 193). On November 29, 2001, Dr. Mathai completed an “Offsite Specialty Referral 30 Day Follow-Up Form.” (Exhibit A, p. 48). Upon inquiry, Dr. Mathai was informed that authorization of the procedures recommended by Dr. Kornak was in the process of being reviewed. Therefore, Dr. Mathai answered “yes” to a question on the form, “Is it acceptable to continue to wait completion of offsite?” Based on her inquiry, she believed the procedures would be scheduled shortly. (Exhibit C, p. 87-90).
CMS approved the procedure on December 5, 2001, and faxed the authorization to the MDOC’s Patient Services on December 7, 2001 to schedule the procedure. Patient Services scheduled Plaintiff to receive the microlaryngoscopy and vocal cord stripping on January 11, 2002. (Exhibit A, pp. 193, 194).
On January 2, 2002, Dr. Mathai followed up on the status of Plaintiff’s microlaryngoscopy and vocal cord stripping by completing a second “Referral 30 Day Follow-Up Form.” (Exhibit A,
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p. 47). Dr. Mathai observed that the procedures were scheduled to be completed by Dr. Kornak on 1/11/02, therefore, again she answered “yes” to the question “Is it acceptable to continue to wait completion of offsite?” (Exhibit A, p. 47; Exhibit C, p. 107). Dr. Kornak testified during his deposition that under the circumstances the microlaryngoscopy and vocal cord stripping procedures were scheduled within a reasonable amount of time after his November 11, 2001 examination. (Exhibit C, p. 20-21). Further, he testified that even if the procedures were scheduled and/or completed earlier, it would have made no difference to the nature of Plaintiff’s subsequent treatment and/or prognosis. (Exhibit D, p. 21, 22, 34).
Dr. Kornak completed the microlaryngoscopy and vocal cord stripping on January 11, 2002 as scheduled. In his Operative Report3, Dr. Kornak observed “lesions were on both true vocal cords and limited to the true vocal cords.” (Exhibit A, p. 468). Portions of the lesions were stripped off both vocal cords and sent to the pathology lab for examination. (Exhibit A, p. 468; Exhibit D, p. 24). On January 11, 2002, Dr. Kornak was unable to diagnose whether Plaintiff had laryngeal cancer until he received the biopsy results from the pathology lab. (Exhibit D, p. 25, 27). He recommended Plaintiff to rest his voice for 10 days, and return to the ENT clinic in 2 weeks to discuss the biopsy results. (Exhibit A, p. 192). Dr. Mathai reviewed Dr. Kornak’s recommendations promptly on January 16, 2002. (Exhibit A, p. 192).
Plaintiff returned to see Dr. Kornak for his 2 week follow-up appointment as recommended on January 22, 2002. On this date Dr. Kornak reviewed the biopsy pathology report with Plaintiff. (Exhibit A, p. 228; Exhibit D, p. 28-29). The report diagnosed Plaintiff with “invasive and in-situ
3 While this report concerns the microlaryngoscopy and vocal cord stripping procedures on January 11, 2002, the admission date and report date inaccurately state they occurred in February 2002. Dr. Kornak testified he does not recall why the report was not prepared immediately. (Exhibit D, p. 22-23).
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moderately differentiated keratinizing squamous carcinoma.” (Exhibit A, p. 228). This is the first date on which Plaintiff’s cancer was diagnosed. (Exhibit D, p. 27). Dr. Kornak did not perform any staging of the cancer, and was unaware at what stage Plaintiff’s laryngeal cancer was at on January 22, 2002. (Exhibit D, p. 25, 29). Dr. Kornak completed a Special Consult Report requesting Plaintiff to receive a referral to the Radiation Oncology Department at Foote Hospital “ASAP.” (Exhibit A, p. 191). Dr. Kornak expected that the radiation oncologist would stage Plaintiff’s cancer by performing a CT scan and possibly an MRI, as well as recommend a course of radiation and possibly chemotherapy treatment. (Exhibit D, p. 25, 30). Dr. Kornak required no further follow-up with Plaintiff until after he received his cancer treatment. (Exhibit A, p. 181). Plaintiff never complained of pain to Dr. Kornak. (Exhibit D, p. 31-32). The same date, Dr. Mathai entered a progress note acknowledging Plaintiff received his follow-up ENT visit with Dr. Kornak. (Exhibit A, p. 45). Plaintiff’s radiation oncology consultation requested by Dr. Kornak was approved by CMS the same day as well, and scheduled to occur on February 5, 2002. (Exhibit A, p. 190).
Dr. Mathai examined Plaintiff on January 30, 2002. She again reviewed the recent recommendations by Dr. Kornak, and verified with Patient Services that the radiation oncology consult was scheduled to occur in the next week. Dr. Mathai called Patient Services for the MDOC and left a message for them to schedule the radiation oncology appointment. (Exhibit C, p. 108. lines 18, p. 109, line 6). Plaintiff complained of “dysphagia and throat pain at night” and Dr. Mathai ordered Ultram pain medication for same. (Exhibit A, pp. 45, 315, 316). On February 5, 2002, Plaintiff received his offsite specialty consultation with the radiation oncology clinic as scheduled. The consultation was performed by James Hayman, M.D., who was covering for Christine Tsien, M.D. (both are radiation oncologists at U of M Hospital). Dr. Kornak’s Operative Report
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concerning the January 11, 2002 microlaryngoscopy was not available, so Dr. Hayman was unaware if Plaintiff’s cancer was in Stage I or more advanced, and that his assumption it was Stage I was his “best guess” based on the information available to him. (Exhibit A, pp. 465-466 ; Exhibit E, p.20, lines 5-16). Dr. Hayman’s report states, “Assuming the patient in fact has stage I larynx cancer, we would recommend treatment with radiation therapy to be given with curative intent”. [emphasis added]. The consultation report states, “arrangements will be made for patient to return for treatment planning and to begin treatment soon”. Dr. Hayman wrote, “recommend treatment with radiation (7 wks M-F) - will be calling with appt of simulation initiation of treatment”.4 Dr. Hayman also completed a Specialty Consult Report the same date. (Exhibit A, p. 174). Dr. Hayman marked the recommendations as non-urgent, and requested a follow-up visit in 2 weeks. Dr. Hayman did not order a CT scan or an MRI to initiate staging of the cancer, because he believed it would be done as part of Mr. Broder’s treatment planing with the Radiation Oncology Department. (Exhibit E, p. 20, line 25 to p. 21, lines 1-23). Dr. Mathai reviewed Dr. Hayman’s Specialty Consult Report on 2/8/02, and submitted it to the MDOC who faxed it to CMS on 2/11/02. (Exhibit A, p. 173). CMS authorized the requested recommendations of Dr. Hayman on 2/12/02, and faxed the authorization back to the MDOC Patient Services to schedule the procedures on 2/19/02. Patient Services scheduled the simulation for treatment to occur on 3/12/02, and the radiation therapy to begin at Foote Hospital on 3/19/02. (Exhibit A, p. 173).
On 2/13/02, Dr. Tsien reviewed Dr. Hayman’s report, observed that cancer staging had not been initiated by Dr. Hayman, and immediately recommended a “CT scan of head and neck ASAP”. (Exhibit A, p. 188, 189). The recommendation is cc’d to Dr. Kornak. She observes the patient has
4 Simulation of treatment is required to be performed prior to initiating cancer treatment. (Exhibit F, p. 1011; Exhibit E, p. 10-13).
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“stage I larynx cancer”. There is no indication a request for authorization for the CT was ever properly submitted to CMS, or that the report was received and reviewed by Dr. Mathai.
Dr. Mathai examined Plaintiff on 2/22/02, during which time she was unable to examine Plaintiff’s chart because it was out on an FOIA request [requested by Plaintiff by letter on January 24, 2002 (Exhibit A, p. 284; Exhibit C, p. 108-109)]5. Dr. Mathai observed continued dysphagia, and primarily addressed Plaintiff’s dietary concerns. (Exhibit A, p. 45). Plaintiff’s simulation of treatment and radiation treatment were scheduled to begin on March 12, 2002 and March 19, 2002, respectively. (Exhibit C, p. 109). This is the last time Plaintiff was seen by Dr. Mathai prior to her maternity leave beginning 3/9/02 to 5/15/02. (Exhibit C, p. 106-107).
On 3/8/02, Marcella Clark, M.D., covering for Dr. Mathai, reviewed the chart and observed Dr. Tsien’s request for a CT scan. Dr. Clark requested an “urgent” CT scan of Plaintiff’s head and neck concerning the “newly diagnosed larynx cancer”. (Exhibit A, p. 172). CMS approved the request on 3/13/02, and faxed the authorization to MDOC Patient Services on 3/14/02 for scheduling. Patient Services scheduled the head and neck CT for 4/1/02. (Exhibit A, p. 170). However, the simulation recommended by Dr. Hayman was completed as scheduled by Dr. Tsien on 3/12/02, at which time the CT was also completed. (Exhibit A, p. 169). The CT was reviewed by Dr. Michael Shanks, M.D. (radiologist). Dr. Shanks observed “tumor appears to involve the larynx on the left with extension into the epiglottis”. (Exhibit A, pp. 240, 241). The CT indicates for the first time that Plaintiff’s cancer was more advanced than originally assumed by Dr. Hayman on February 5, 2002, since it extended into the epiglottis. Dr. Shanks recommended a “diagnostic MRI could be performed as needed”. (Exhibit A, p. 241). The report was sent to Dr. Tsien.
5 The fact that Plaintiff’s chart was unavailable also likely explains why Dr. Tsien’s request for a CT was not reviewed by Dr. Mathai.
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On 3/18/02, Dr. Tsien reviewed Plaintiff’s CT and observed the CT report and noted the larynx cancer extended to the “eppiglotic/parapharyngeal” region. Therefore, she submitted a specialty consult report requesting a head and neck MRI on an urgent basis, as recommended in the CT report. (Exhibit A, pp. 167, 168; Exhibit F, p. 27, lines 1-23). On 3/21/02, Dr. Tsien’s consult report was reviewed by MSP Dr. Bey. Dr. Bey prepared and faxed a CMS Authorization Request for the MRI requested by Dr. Tsien. CMS authorized the MRI the same day “ASAP” and faxed the authorization to the MDOC Patient Services who scheduled the MRI for 3/27/02. (Exhibit A, p. 166). Dr. Bey also submitted a Specialty Consult Report requesting radiation treatment be postponed and re-scheduled after the MRI results were reviewed.6 Plaintiff received the MRI as scheduled.
On 3/25/02, Dr. Bey requested that Plaintiff receive chemotherapy for his laryngeal cancer within 2 weeks. The request was reviewed by CMS on 3/26/02, and Plaintiff was authorized to be seen at the cancer clinic on 3/28/02. (Exhibit A, p. 182, 183). On 3/27/02, Plaintiff’s MRI was completed as scheduled. (Exhibit A, p. 184). The results were not read yet.
Plaintiff’s was seen by John Axelson, M.D. at the cancer clinic on 3/28/02, as scheduled. Dr. Axelson is board certified in the medical specialty of Hematology. Dr. Axelson noted Plaintiff’s cancer was previously diagnosed as stage I, however, recommended radiation therapy was not begun due to Dr. Shanks observations from the head and neck CT. (Exhibit A, p. 157). He observed Dr. Tsien followed up by ordering an MRI. Dr. Axelson placed a call to Dr. Tsien and Dr. Kornak “for more rapid follow-up”. Dr. Axelson recommended follow-up with Dr. Kornak by 4/2/02, which he
6 The MRI was needed for staging. If the MRI indicated Stage III cancer, chemotherapy is required in
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faxed to CMS on 3/28/02. On 3/29/02, CMS authorized a consult with Dr. Kornak “ASAP”. The consult was scheduled for 4/2/02 as recommended by Dr. Axelson. (Exhibit A, p. 156).
On 4/1/02, the MRI report was completed and reviewed by Dr. Tsien. (Exhibit A, pp. 498, 499). Dr. Tsien diagnosed Plaintiff with “Stage III T2N1 squamous cell carcinoma of the left true vocal cord extending into the supraglottis”. Chemotherapy and radiation therapy were recommended. (Exhibit A, pp. 176, 177). Dr. Axelson testified within a reasonable degree of medical probability that in January 2002, Plaintiff’s cancer was advanced at Stage III, and never at Stage I. (Exhibit G, p. 44, lines 7-13).
On 4/2/02, Plaintiff was hospitalized, and chemotherapy and radiation therapy were begun. (Exhibit A, pp. 323, 390, 476, 480, 482, 483). Dr. Mathai returned from maternity leave after 5/15/02, at which time Plaintiff continued to receive his radiation treatment. She first saw Plaintiff after her return on 5/20/02. She observed Plaintiff still had dysphagia, was not taking his Ultram as prescribed, but he was not in any pain. (Exhibit A, p. 33). Plaintiff continued his radiation treatment, and she recommended follow-up in 1 month.
Plaintiff completed his radiation treatment on 5/23/02. (Exhibit A, p. 122). Plaintiff was authorized and received continued follow-up with oncology by Dr. Tsien. (Exhibit A, p. 116). His radiation therapy was restarted by Dr. Tsien on 6/6/02. (Exhibit A, p. 108). On 6/10/02, Dr. Heizel (radiologist) observed the tumor was diminished by approximately 50%. (Exhibit A, p. 346). On 6/13/02, Dr. Kornak performed a microlayngoscopy and biopsy of arachnoid and right false cord. No evidence of a tumor was found. (Exhibit A, p. 112). On July 22, 2002, Plaintiff’s radiation treatment was completed, and Dr. Tsien observed Plaintiff was free of cancer and “in stable condition with no evidence of recurrent disease.” (Exhibit A, pp. 95, 96). On August 27, 2002,
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Plaintiff received a 2 month routine follow-up with Dr. Kornak at the ENT clinic. Dr. Kornak recommended another follow-up in 2 months. (Exhibit A, p. 85). By September 30, 2002, Plaintiff’s sore throat was completely resolved. (Exhibit A, p. 19).
Plaintiff’s cancer treatment was completed successfully. Plaintiff’s cancer went into complete remission. Plaintiff was last seen by Dr. Kornak in early May, 2006. It has been 4½ years since Plaintiff’s cancer was treated, and it is in complete remission. Plaintiff’s expert testified that at the present time the chance that Plaintiff’s cancer will remain in remission is 99.9%.
Plaintiff’s expert oncologist, Carol Bradford, M.D., testified that more likely than not Plaintiff “is cured from his larynx cancer.” (Exhibit H, p. 51-52). B. Procedural History.
Plaintiff mailed his Notice of Intent (NOI) to file a medical malpractice action to Defendants on or about April 29, 2003, pursuant to MCL 600.2912b. (Exhibit I). After the statutory waiting period required by MCL 600.2912b, Plaintiff filed his original Complaint, in part against Bency Mathai, M.D., Aubertro Antonini, M.D., and Correctional Medical Services, Inc., on December 24, 2003. (Exhibit J). The Complaint alleged deliberate indifference to a serious medical need pursuant to 42 USC 1983 against these Defendants, as well as a State claim for medical malpractice. Plaintiff’s Complaint was accompanied by two Affidavits of Merit, required by MCL 600.2912d, signed by Brent Williams, M.D. (Board certified in internal medicine), and by Carol Bradford, M.D. (Board certified in oncology). (Exhibit K).
On September 22, 2004, the Court summarily dismissed CMS with prejudice, determining that CMS is entitled to Eleventh Amendment immunity. On October 4, 2004, Plaintiff filed a Motion to Amend the Complaint, and add Craig Hutchinson, M.D. as a Defendant. Dr. Hutchinson
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is the medical director for CMS in Michigan. The Court entered an Order granting Plaintiff’s Motion to Amend on October 20, 2004. Almost two months later, Plaintiff filed his First Amended Complaint on or about December 10, 2004. (Exhibit L). An Affidavit of Merit pursuant to MCL 600.2912d was not filed with the Amended Complaint, and the Amended Complaint did not make any reference to an Affidavit of Merit. The Amended Complaint alleges deliberate indifference to a serious medical need in violation of 42 USC 1983 against Dr. Mathai, Dr. Antonini, and Dr. Hutchinson, and medical malpractice against Dr. Mathai and Dr. Antonini, only.
Defendants, Dr. Hutchinson, Dr. Antonini, and Dr. Mathai, filed their Answer, Affidavit of Meritorious Defense pursuant to MCL 600.2912e, and Affirmative Defenses, on December 30, 2004. The Affirmative Defenses allege, at paragraph 22, “Plaintiff has not filed an affidavit of merit with the amended complaint in the manner required by MCL 600.2912b.” (Exhibit M).
Plaintiff stipulated to dismiss Dr. Antonini with prejudice at the end of September 2006, and an Order of Dismissal is pending. The parties completed all expert depositions prior to the end of October 2006. Defendants, Dr. Mathai and Dr. Hutchinson, now move for dismissal of the remaining claims against them.
STANDARD OF REVIEW 1. Dismissal under Rule 12(b)(6).
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a Court must accept all well-pleaded allegations as true and construe them in the light most favorable to Plaintiff. See Zinermon v. Burch, 494 U.S. 113, 117 (1990); Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976). A Complaint will not be dismissed for failure to
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state a claim unless it appears beyond a doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 54-46 (1957). It is also well established, however, that conclusory, unsupported allegations of constitutional deprivation do not state a claim. See Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cir.)("[T]he allegations must be more than mere conclusions, or they will not be sufficient to state a civil rights claim."), cert denied, 484 U.S. 945 (1987); Ross v. Meagan, 638 F.2d 646, 650 (3d Cir. 1981)("[T]his court has consistently demanded that a civil rights complaint contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs.").
Finally, a Court may decide a Motion to Dismiss only on the basis of the pleadings. Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993). Dismissal is appropriate if the Complaint fails to set forth an allegation of a required element of a claim. See Craighead v. E.F. Hutton & Co., 899 F.3d 485, 489-90 (6th Cir. 1990). The Court may treat the Motion to Dismiss as one for summary judgment, however, if "matters outside the pleading are presented to and not excluded by the court." Fed. R. Civ. P. 12(b).
2. Summary Judgment Under Rule 56. Under Fed. R. Civ. P. 56, summary judgment is to be entered if the moving party
demonstrates there is no genuine issue as to any material fact. The Supreme Court has interpreted this to mean that summary judgment should be entered if the evidence is such that a reasonable jury could find only for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party has "the burden of showing the absence of a genuine issue as to any material fact."
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Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). See also Lenz v. Erdmann Corp., 773 F.2d 62 (6th Cir. 1985). In resolving a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party. See Duchon v. Cajon Co., 791 F.2d 43, 46 (6th Cir. 1986); Bouldis v. United States Suzuki Motor Corp., 711 F.2d 1319 (6th Cir. 1983). But as the Supreme Court wrote in Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986):
[T]he plain language of Rule 56( c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. A party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion and if, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under applicable criteria, summary judgment is appropriate. Street v. J.C. Bradford & Co., 886 F.2d 1472, Fed. Sec. L. Rep. P 94,768 (6th Cir.,Tenn. 1989).
ARGUMENTS ARGUMENT I: Defendants Mathai And Hutchinson Were Not Deliberately Indifferent To Plaintiff’s Serious Medical Needs, Therefore, Plaintiff’s Claim Pursuant To 42 USC 1983 Must Be Dismissed Pursuant To FRCP 56.
A. There Was No Personal Involvement By Dr. Hutchinson.
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Dr. Hutchinson testified that he never provided medical treatment to Plaintiff, nor was he aware of Plaintiff. Plaintiff seeks to allege deliberate indifference against Dr. Hutchinson because of his position as Medical Director for CMS in Michigan. The elements of a claim of deliberate indifference require Plaintiff to show he had a serious medical need, and that defendant, being aware of that need, acted with deliberate indifference to it. Wilson v. Seiter, 501 U.S. 294, 300 (1991). An individual cannot be liable for deliberate indifference if they had no personal involvement with the Plaintiff or any interaction with regards to the Plaintiffs’ claims.
Further, a person cannot be held vicariously liable under 42 U.S.C. §1983 for the conduct of its agents under the doctrine of “respondeat superior.” Price v. Parks-Belk, Inc., 72 F.R.D. 84 (D.C. Tenn. 1976); Moore v. Buckles, 404 F.Supp. 1382, 1384(3) (D.C. Tenn. 1975). There is no supervisory liability under 42 USC 1983 absent personal involvement. Personal involvement of the Defendant is required. Id. Therefore, in the present case, Dr. Hutchinson may not be found vicariously liable for the actions of Dr. Mathai or any other defendant.
Plaintiff’s complaint alleges at paragraph 10 that Dr. Hutchinson “helps to formulate and implement the customs, policies, practices and procedures, and staff training related to medical care in MDOC facilities.” (Exhibit L) Further, paragraphs 91, 92, 99, and 104, among others in the First Amended Complaint suggest that Defendants, including Dr. Hutchinson, are somehow liable to Plaintiff for alleged constitutional violations because Dr. Hutchinson implemented and/or failed to implement policies, practices, and/or procedures that were deliberately indifferent to Plaintiff’s serious medical needs. Plaintiff’s boiler plate attempt to extract liability against Dr. Hutchinson must fail since Plaintiff has never identified any official policy or procedure officially adopted by Dr. Hutchinson or any one else and relied on by one or more persons that resulted in harm to
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Plaintiff. To establish liability against Dr. Hutchinson, as medical director for CMS, Plaintiff must
identify the unconstitutional policy, connect the policy to Dr. Hutchinson and his employer CMS itself, and show that the particular injury was incurred because of the execution of that policy. Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993) A plaintiff seeking to impose liability for an unconstitutional policy, practice or procedure must prove that constitutional harm suffered was a result of official policy or custom of a political subdivision. Brown v. Costello, 905 F.Supp. 65 (N.D.N.Y., 1995).
In the present case, Plaintiff has failed to show any specific policy of Dr. Hutchinson on behalf of himself or CMS that deprived Plaintiff of a constitutional right, or in deliberate indifference to a serious medical need. CMS and the MDOC work in conjunction with each other to ensure that medical diagnosis and recommended medical care, treatment, and specialty consults are achieved in a timely manner. In the present case, Plaintiff’s history itself demonstrates that the system is in place and works. On each instance where Mr. Broder was referred for a specialty consult, a request was sent to CMS for the offsite appointment in a timely manner, the request was scheduled, and the consultation completed. (See Exhibit N, concerning the consultations at issue in this case.) Dr. Hutchinson entitled to summary judgment because Plaintiff has failed to show any personal involvement by Dr. Hutchinson, and or the existence of an unconstitutional policy, practice, or procedure officially adopted and implemented by him on behalf of CMS at issue in this case.
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The two essential elements for a claim under 42 U.S.C. §1983 are (1) deprivation or violation of a federally protected right, privilege, or immunity and (2) the fact that the action of the defendant in violating the federally protected right was taken under color of state law. Gomez v. Toledo, 446 U.S. 635 (1980); United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992). In the present matter, Plaintiff's Complaint fails to allege sufficient facts to satisfy the first element.
A claim made by a convicted prisoner that his constitutional right to medical treatment was violated is analyzed under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97 (1976). To state a §1983 claim for a violation of a prisoner's Eighth Amendment rights due to inadequate medical care, the prisoner must allege facts evidencing a deliberate indifference to serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle, 429 U.S. 97.
To succeed on a claim of deliberate indifference, plaintiff must satisfy two elements, an objective one, and a subjective one. He must show he had a serious medical need, and he must show that defendant, being aware of that need, acted with deliberate indifference to it. Wilson v. Seiter, 501 U.S. 294, 300 (1991); Williams v. Mehra, 186 F.3rd 685, 691 (6th Cir. 1999).
In Farmer v. Brennen, 511 U.S. 825 (1994), the Supreme Court explained the meaning of "deliberate indifference":
[A] prison official cannot be found liable under the Eighth Amendment or denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference . . . Eighth Amendment suit against prison officials must satisfy a "subjective" requirement. 511 U.S. at 836-37. (emphasis supplied). To satisfy the subjective component, a prisoner must show
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the defendant prison official had “a sufficiently culpable state of mind.” Id. “Deliberate indifference” describes a “state of mind more blameworthy than negligence.” Id., at 835. A Prison official can be found to have been deliberately indifferent only if shown to have been actually aware of conditions that posed a substantial risk of serious harm to a prisoner, and to have acted with conscious disregard for that risk. Id. at 837; Sanderfer v. Nichols, 62 F.2d 151, 154 (6th Cir. 1995); Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994). The court in Sanderfer also found that deliberate indifference is the equivalent of "criminal recklessness, which requires a subjective showing that the defendant was aware of the risk of harm." Id.
"Deliberate indifference" has been variously defined by the federal courts that have considered prisoners' Eighth Amendment claims, but all agree that it is more than mere negligence and less than actual intent. See also Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992)("Obduracy or wantonness, not inadvertence or good faith error, characterizes deliberate indifference"). Accordingly, even "gross negligence" by prison officials is insufficient to support a deliberate indifference claim. Ribble v. Lucky, 817 F. Supp. 653, 655 (E.D. Mich. 1993).
The Supreme Court in Estelle stated, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim under the Eighth Amendment. Estelle, 429 at 105-106. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Id. The courts typically do not intervene in questions of medical judgment. Hicks v. Frey, 992 F. 2d 1450, 1455 (6th Cir. 1993). Plaintiff’s claim for deliberate indifference under the Eighth Amendment does not allow him to allege a difference in opinion regarding his medical care. The court in West Lake v. Lucas, 537 F.2d 857 (6th Cir. 1976) found, differences in judgment between an inmate and prison medical personnel
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regarding appropriate medical diagnosis or treatment are not enough to state a deliberate indifference claim. Id. In the present case, Plaintiff’s claims amount to nothing more than a difference in medical opinion that his diagnosis of laryngeal cancer should have occurred sooner, his specialty consultations completed sooner, and his cancer treatment initiated sooner, more. Plaintiff’s attempt to allege a claim of medical malpractice simply does not also rise to the level of deliberate indifference.
The courts typically do not intervene in questions of medical judgment. Youngberg v. Romeo, 457 U.S. 307, 321 (1982). "Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law." Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976).
Differences in medical opinion between a prisoner and the medical providers regarding the appropriate diagnosis or treatment is not enough to show deliberate indifference. See, Sanderfer v. Nichols, 62 F.3d 151,154-155 (6th Cir. 1999), Gabehart v. Chapleau, 1997 WL 160322 at *2 (6th Cir. 1997) (Exhibit G), and Ward. v Smith, 1996 WL 627724, *1 (6th Cir. 1996) (Exhibit H). At most, Plaintiff's complaints and allegations arise to a difference of medical opinion with his medical providers.
Plaintiff is unable to satisfy the subjective component of his deliberate indifference claim. There is not evidence that Dr. Mathai, being aware of Mr. Broder’s laryngeal cancer, acted with deliberate indifference to its diagnosis, need for specialty consultations, and/or treatment. The facts set forth in detail above clearly demonstrate that at all corners Plaintiff received reasonable medical care and treatment. Plaintiff’s expert witness in internal medicine, Brent Williams, M.D., testified
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specifically concerning his opinions about Dr. Mathai, “I don’t think she intentionally withheld treatment in the sense of an explicit decision to withhold treatment she felt was indicated, she didn’t do that.” (Exhibit O, p. 16, lines 12-14) “...she [Dr. Mathai] didn’t make an explicit decision to bring harm to Mr. Broder.” (Exhibit O, p. 16, lines 17-18)
Dr. Mathai did not act to intentionally delay Plaintiff’s medical care and treatment for laryngeal cancer. Plaintiff received excellent care, and is now cured, end of story. Plaintiff’s claim against Dr. Mathai for deliberate indifference to his serious medical needs must be dismissed pursuant to FRCP 56.
ARGUMENT II: Plaintiff Fails To State A Claim Against Defendants Mathai And/Or Hutchinson For Negligence, Gross Negligence, “Reckless Indifference, ” And/Or Willful And Wanton Misconduct, Upon Which Relief May Be Granted A. Plaintiff’s Claim Sounds In Medical Malpractice, Not Ordinary Negligence Or Gross Negligence. Count II of Plaintiff’s First Amended Complaint, alleges in part a claim for “Gross Negligence.” (Exhibit L, para. 97-101). Additionally, Count III alleges a claim for Ordinary Negligence, in addition to a claim for Medical Malpractice. (Exhibit L, para. 102-125). Plaintiff’s claims for Ordinary Negligence and Gross Negligence do not state claims upon which relief may be granted, and must be dismissed pursuant to FRCP 12(b)(6). The nature and substance of Plaintiff’s claim for negligence and gross negligence in essence constitutes a claim for medical malpractice, only. Michigan case law requires that the nature and origin of a claim controls. Borman’s Inc. v.
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Lake State Dev. Co., 60 Mich App 175, 187, 230 NW2d 363 (1975). Michigan case law establishes that “[t]he key to a medical malpractice claim is whether it is alleged that the negligence occurred within the course of a professional relationship.” Dorris v. Detroit Osteopathic Hosp Corp., 460 Mich 26, 46, 594 NW2d 455 (1999), Simmons v. Apex Drug Stores, 201 Mich App 250, 506 NW2d 562 (1993).
Regardless of whether the particular error in question here involved the exercise of (or failure to exercise) “professional judgment,” the duty not to commit that error in the first place arose only because of the unique nature of the alleged professional, physician-patient relationship between Dr. Mathai, Dr. Hutchinson and Plaintiff. Thus, Plaintiff’s allegations of Gross Negligence in Count II and Ordinary Negligence in Count III of the Amended Complaint against Dr. Mathai and Dr. Hutchinson sound only in medical malpractice.
In Bryant v. Oakpointe Villa Nursing Centre, 471 Mich 411, 684 NW2d 864 (2004), the Michigan Supreme Court articulated a two part test for determining whether a claim sounds in medical negligence: a Court must decide “(1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience.” Id. at 422. Regarding whether the claim raises questions of medical judgment requiring expert testimony, the Court stated:
If the reasonableness of the health care professional’s action can be evaluated by lay jurors, on the basis of their common knowledge and experience, it is ordinary negligence. If, on the other hand, the reasonableness of the action can be evaluated by a jury only after having been presented the standards of care pertaining to the medical issue before the jury explained by experts, a medical malpractice claim is involved. A Complaint cannot avoid the application of the procedural requirements of a malpractice
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action by couching its cause of action in terms or ordinary negligence [or deliberate indifference to a serious medical need]. Dorris, 46.
In the present case, the origin and nature of Plaintiff’s claims concern the professional physician-patient relationship, care, and duties between Dr. Mathai, Dr. Hutchinson, and Plaintiff. Therefore, the only negligence claim they have, if any, would be for medical malpractice. The claims alleging Ordinary Negligence and Gross Negligence must be dismissed for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. Proc. 12(b)(6).
B. There Is No Independent Claim For “Reckless Indifference” or “Willful And Unwanton Misconduct” Separate From Plaintiff’s Deliberate Indifference Claim Upon Which Relief May Be Granted. Count II of Plaintiff’s First Amended Complaint (Exhibit L, para. 97-101) alleges in part a
purported claim for “Reckless Indifference, And Willful And Wanton Misconduct.” There is no recognized independent claim “reckless indifference” and/or “willful and wanton misconduct” separate and distinct from Plaintiff’s deliberate indifference claim. The Supreme Court has stated that punitive damages are appropriate under 42 U.S.C. § 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." [Emphasis added]. Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). In the present case, Plaintiff’s claim for reckless indifference and/or willful and unwanton misconduct constitute a required element of Count I alleging deliberate indifference, in order for Plaintiff to request punitive damages for deliberate indifference to a serious medical need. Therefore, in the event the Court dismisses Count I, Plaintiff’s claims for “reckless indifference” and/or “willful and wanton misconduct” must also be
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dismissed for the same reasons as stated in Argument I above.
ARGUMENT III Plaintiff’s Amended Complaint Fails To State A Claim For Medical Malpractice Upon Which Relief May Be Granted And Must Be Dismissed Pursuant To FRCP 12(b)(6).
A. Plaintiff Did Not File An Affidavit Of Merit. Plaintiff’s claim for Medical Malpractice in Count III of his First Amended Complaint
(Exhibit L, para. 102-125) must be dismissed pursuant to FRCP 12(B)(6) because Plaintiff did not file an Affidavit of Merit as required by MCL 600.2912d.
Under Michigan law, a medical malpractice Plaintiff must file, with the Complaint, an Affidavit of Merit. Specifically, MCL 600.2912d provides in pertinent part:
(1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff’s attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff’s attorney reasonably believes meets the requirements for an expert witness under section 2169. MCL 600.2912d. MCL 600.2912d(1) unequivocally provides that the Affidavit of Merit be filed with the Complaint. Scarsella v Pollak, 461 Mich. 547, 550; 607 N.W.2d 711 (2000); Barlett v North Ottawa Community Hosp, 244 Mich. App. 685, 691; 625 N.W.2d 470 (2001); Nippa v. Botsford Gen. Hosp., 251 Mich. App. 664, 675, 651 NW2d 103 (2002), on remand affirmed by Nippa v. Botsford Gen. Hosp., 257 Mich. App. 387, 668 N.W.2d 628 (2003). Applying Michigan substantive law, federal district courts in Michigan also recognize and apply the Affidavit of Merit requirements in actions alleging medical malpractice. For example, in DeMann v. Ottawa County Sheriff’s Division, 2001 U.S. Dist. LEXIS 19260 (W.D. Mich, 2001),
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the District Court for the Western District of Michigan evaluated the Affidavit of Merit requirement of MCL 600.2912d in the context of federal court proceedings. In evaluating Plaintiff’s medical malpractice allegation, the DeMann Court first noted that Michigan statutory law requires an Affidavit of Merit be filed with a medical malpractice Complaint. DeMann, Id. at p. 8. Next, the Court noted that the DeMann Plaintiff failed to attach an Affidavit of Merit to the Amended Complaint wherein he alleged medical malpractice. DeMann, Id. at p. 10. The Court observed that the statutory requirements for an Affidavit of Merit were “enacted by the state legislature as part of a comprehensive tort reform package in 1993.” DeMann, Id. at pp. 8, 9. Additionally, the DeMann Court observed:
Under the rule of Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S.Ct. 1136 (1965), such procedures must be followed by the federal district court in adjudicating a state-law tort claim. Such statutes embody important state policies that are “intimately bound up” with the rights and obligations of the parties and are not merely procedural. (citations omitted). Id. Based on its observation that a district court must follow Michigan’s statutory law requiring an Affidavit of Merit be filed with a medical malpractice Complaint, the DeMann Court held that Plaintiff’s Complaint must be dismissed without prejudice for failure to provide the required Affidavit. Id. Similar to the result in DeMann, the District Court for the Eastern District of Michigan also applied MCL 600.2912d’s affidavit or merit requirement in Judd v. Heartland Health Care Center, 2001 U.S. Dist. LEXIS 21747 (E.D. Mich, 2001). In Judd, the Plaintiff alleged the Defendant health care facility was inadequately staffed and that her medical needs were not timely responded to. Id. at p. 1. As a result, Plaintiff alleged she was forced to lie in her own urine, such that the integrity of an earlier hip surgery wound became compromised. Id. at p. 2.
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In evaluating Plaintiff’s claim, the Court noted that while Plaintiff alleged negligence, her allegations actually sounded in medical malpractice. Id. at pp. 7, 8. Next, the Court recognized that Michigan statutory law imposes a requirement on medical malpractice Plaintiffs that they file with their Complaint an Affidavit of Merit. Id. at pp. 4, 5. Accordingly, because the Plaintiff failed to file an Affidavit of Merit with her Complaint, as required under MCL 600.2912d, the Judd Court held that Plaintiff’s Complaint must be dismissed. Id. at p. 8. Finally, the Judd Court determined that because the statute of limitations had expired for Plaintiff’s claim, the claim must be dismissed with prejudice. Id. at p. 9.
As Demann and Judd make clear, MCL 600.2919d requires an Affidavit of Merit be filed with a medical malpractice Complaint, and Michigan federal district courts recognize and apply MCL 600.2912d when hearing medical malpractice claims. Id. Extending these observations, Michigan case law also requires an Affidavit of Merit be filed with an Amended Complaint. Nippa v. Botsford Gen. Hosp., 251 Mich. App. 664; 651 N.W.2d 103 (2003) (Vacated by, Remanded by: Nippa v. Botsford Gen. Hosp., 468 Mich. 882, 661 N.W.2d 231; Affirmed by: Nippa v. Botsford Gen. Hosp., 257 Mich. App. 387, 668 N.W.2d 628). Both the Plaintiff's Affidavit of Merit required by MCL 600.2912d, and the Defendant's Affidavit of Meritorious Defense required by MCL 600.2912e, are part of the pleadings. Id. When a party fails to file their Affidavit required by MCL 600.2912d and/or MCL 600.2912e with the Complaint and/or Answer, such action results in a failure to plead. Id. See also Kowalski v Fiutowski, 247 Mich. App. 156, 163; 635 N.W.2d 502 (2001). It has been consistently held that even the filing of a timely but non-conforming Affidavit of Merit pursuant to MCL 600.2912d is insufficient to commence a medical malpractice lawsuit and thus does not toll the limitations period, which continues to run. Geralds v Munson Healthcare, 259
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Mich. App. 225, 240; 673 N.W.2d 792 (2003); Mouradian v Goldberg, 256 Mich. App. 566, 572-575; 664 N.W.2d 805 (2003), Newsome v. Bono, 2006 Mich. App. LEXIS 3305, 1-2 (November 14, 2006).
In Nippa, the Plaintiff filed a Complaint with an Affidavit of Merit pursuant to MCL 600.2912d. Plaintiff then filed a First Amended Complaint, and a Second Amended Complaint almost two months later. The Amended Complaints did not refer to the previously filed Affidavit of Merit, nor was an Affidavit of Merit filed with the Amended Complaints. The Michigan Court of Appeals held, once Plaintiff filed the First and Second Amended Complaints, these amended pleadings superseded the original Complaint. MCR 2.118(A)(4); Grzesick v Cepela, 237 Mich. App. 554, 562; 603 N.W.2d 809 (1999).
" § 838. An amended pleading that is complete in itself and does not refer to or adopt a former pleading as a part of it supersedes or supplants the former pleading, and the prior pleading is considered abandoned and withdrawn. The purpose of this rule [is] to ensure that the court and the opposing parties will be aware of the points at issue. " § 839. The original pleading is abandoned and withdrawn by an amendment thereto, and is no longer a part of the pleader's averments. The plaintiff cannot avail himself or herself of the allegations contained in the superseded pleading, unless they are set out or referred to in the amended pleading. This rule applies not only to factual allegations but also to theories of recovery." [Id., quoting 61B Am Jur 2d, Pleading, pp 92-93.]
Therefore, the Plaintiff’s Complaint was properly dismissed for failing to state a claim upon which relief may be granted.
Understanding that Michigan law requires an Affidavit of Merit be filed with a medical malpractice Complaint, and that federal courts in Michigan have recognized and applied this requirement, federal courts in Michigan must also apply the Michigan precedent requiring that
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Amended Complaints be filed with an Affidavit of Merit. Further, because federal courts recognize that filing a medical malpractice Complaint in the absence of an Affidavit of Merit is grounds for dismissal, the Courts likewise must recognize that failure to file an Affidavit of Merit with an Amended Complaint is also grounds for dismissal. Such a result stems from consistent application of Michigan medical malpractice law in Michigan Federal courts, and is consistent with the observations of the Michigan Court of Appeals. Nippa, supra.
In the present case, Plaintiff did not file an Affidavit of Merit with the First Amended Complaint, nor adopt by reference any previously filed Affidavit of Merit. Defendants timely objected to this error in paragraph 22 of the affirmative defenses. (Exhibit M). Plaintiff’s Complaint, filed without the Affidavit of Merit required by MCL 600.2912d, did not toll the limitations period because "'in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit.'" Scarsella, supra at 549. Mouradian v. Goldberg, supra at 571. Therefore, in the present case, Plaintiff’s medical malpractice claim must be dismissed with prejudice pursuant to FRCP 12(b)(6)
B. Plaintiff’s Notice of Intent Failure Does Not Comply With MCL 600.2912d. Plaintiff mailed his Notice of Intent addressed to seventeen (17) different individual
physicians, nurses, or other persons or entities alleged to be Plaintiff’s medical providers. The NOI is defective and does not comply with MCL 600.2912b and, therefore, Plaintiff’s medical malpractice claim must be dismissed pursuant to FRCP 12(b)(6).
Under MCL 600.2912b a person may not bring suit against a health professional or health facility without first providing written Notice of Intent to file suit. Such written notice must be given not less than 182 days before the suit is filed. Additionally, MCL 600.2912b(4) sets forth
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several elements that the notice must contain to be deemed sufficient notice. MCL 600.2912b(4)
provides:
The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:
(a) The factual basis for the claim. (b) The applicable standard of practice or care alleged by the claimant. ( c) The manner in which it is claimed that the applicable standard of practice or
care was breached by the health professional or health facility. (d) The alleged action that should have been taken to achieve compliance with
the alleged standard of practice or care. (e) The manner in which it is alleged the breach of the standard of practice or care was
the proximate cause of the injury claimed in the notice. (f) The names of all health professionals and health facilities the claimant is notifying
under this section in relation to the claim.
Under Michigan law, Plaintiffs bear the burden of complying with the NOI requirements
imposed by MCL 600.2912b. Gulley-Reeves v. Baciewicz, 260 Mich.App. 478, 679 N.W.2d 98
(2004); Roberts v. Atkins, 470 Mich. 679, 648 NW2d 711 (2004). Further, Michigan law does not
require Defendants to challenge any deficiencies in the NOI prior to a Complaint being filed. Id.
In Roberts, the Michigan Supreme Court reviewed the requirements of MCL 600.2912b as
to Notices of Intent. Id. The Court stated:
Under MCL 600.2912b(4), a medical malpractice claimant is required to provide potential defendants with notice that includes a "statement" of each of the statutorily enumerated categories of information. Although it is reasonable to expect that some of the particulars of the information supplied by the claimant will evolve as discovery and litigation proceed, the claimant is required to make good-faith averments that provide details that are responsive to the information sought by the statute and that are as particularized as is consistent with the early notice stage of the proceedings. The information in the notice of intent must be set forth with that degree of specificity which will put the potential defendants on notice as to the nature of the claim against them. This is not an onerous task: all the claimant must do is specify what it is that she is claiming under each of the enumerated categories in § 2912b(4). Id.
In Roberts, the Michigan Supreme Court interpreted the requirements of MCL 600.2912b
while reviewing Notices of Intent which failed to provide the mandatory elements delineated in
MCL 600.2912b. Id. The Roberts Court held that the Plaintiff failed to comply with MCL
600.2912b because her Notices of Intent were missing several statutorily mandated elements,
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including “(1) a statement of the particular standard of practice or care applicable to each of the various defendants” and “(2) statements regarding the manner in which it was claimed that defendants breached the alleged standards of practice or care” Id. Thus, the Michigan Supreme Court’s plain language in Roberts made clear that Plaintiffs NOI must indicate the standard of care applicable to each Defendant, and the manner in which the Defendants breached the standard. Roberts v. Atkins, 470 Mich. 679 (2004).
After concluding that Plaintiff’s Notices of Intent were insufficient under MCL 600.2912b, the Roberts Court noted “it is plaintiff’s burden to establish compliance with §2912b and, in turn to establish entitlement to application of the notice tolling provision, §5856(d).” Id. Accordingly, the Roberts Court noted that because the Plaintiff did not meet the requirements of MCL 600.2912b, “the statute of limitations was not tolled during the notice period” Id.
In the present matter, Plaintiff’s NOI is deficient on the same basis the Notices of Intent were deficient in Roberts. Accordingly, Plaintiff has not complied with 2912b and this action must be dismissed for several reasons. First, Plaintiff, in this case, has failed to identify a specific standard of practice or care applicable to each of the 17 different persons concerned in the NOI, including but not limited to, Dr. Mathai, Dr. Antonini, Dr. Bey, Dr. Axelson, Dr. Hutchinson, or any other person. Further, while Plaintiff’s NOI contains a section titled “The Applicable Standard of Care or Practice,” Plaintiff never plainly states the applicable standard. (See Exhibit I). In fact, rather than delineate the standard of care as to each Defendant, Plaintiff’s NOI simply states actions that Plaintiff alleges should have occurred, and the time frame within which such actions allegedly should have occurred. (See Exhibit I). For example, Plaintiff’s NOI alleges the following, in pertinent part, as the standard of care:
“Investigation and diagnosis of invasive squamous cell carcinoma of the larynx should have happened 4-8 weeks following July 11, 2001, when Mr. Broder presented with refractory sore throat for several months...In any event, the time lapses...are outside the standard of care. Radiation or other curative treatment should have commenced within 3-6 weeks of initial diagnosis...
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Following treatment, Mr. Broder should have been continuously monitored for recurrences of the primary tumor... Mr. Broder should have received treatment to prevent tooth decay... Mr. Broder should have received follow-up care to replace the un-anchored partial denture...” (See Exhibit I). As is clear from the above language, Plaintiff’s NOI is clear in its allegation that certain actions should have occurred, yet it fails to state a cohesive standard of care, or specifically who the purported standard of care applies to. Plaintiff’s NOI wholly fails to state the particular standard of practice or care applicable to each Defendant, as required by the Michigan Supreme Court in Roberts. Id. Further, because Plaintiff’s NOI fails to state a cohesive standard of care, and instead only lists actions that allegedly should have occurred, it is impossible for Defendants to discern which elements of the alleged standard apply to which Defendant(s). For example, Plaintiff’s alleged standard of care does not indicate whether Dr. Mathai should have investigated carcinoma of the larynx four to eight weeks after July 11, 2001. Additionally, the NOI fails to specify whether the commencement of radiation within three to six weeks is a standard that applies to Dr. Mathai or someone else. Likewise, it is unintelligible from Plaintiff’s NOI whether continuous monitoring and provision of dental care is the standard applicable to Dr. Mathai or someone else. Because Plaintiff’s NOI fails to state the particular standard of practice or care applicable to each Defendant, Plaintiff’s NOI is insufficient under Roberts. Id. Second, Plaintiff’s NOI is insufficient under MCL 600.2912b (4)( c) as it fails to state “the manner in which it is claimed that the applicable standard of practice or care was breached.” In fact, while Plaintiff’s NOI is organized into sections that correspond to the subsections of MCL 600.2912b(4), Plaintiff wholly omits discussion of MCL 600.2912b(4)( c) and its requirement that a NOI contain a “statement” of the manner in which it is claimed the applicable standard of care was breached. MCL 600.2912b(4)( c). While Plaintiff’s Notice generally alleges that a number of actions should have been completed in treating Plaintiff, the NOI does not indicate the manner in
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which any specific Defendant allegedly breached the standard of care. For example, the Notice of Intent’s ‘standard of care section’ never individually references Defendants. Additionally, the Notice’s ‘standard of care’ section never alleges that any given physician Defendant’s failure to complete any of the specified actions comprised a breach of the standard of care. (See Exhibit I).
In Roberts, the Michigan Supreme Court evaluated a NOI in which the Plaintiff described the manner in which Defendant breached the standard of care under MCL 600.2912b(4)( c) simply by referring the reader to “see paragraph 2 above,” in Plaintiff’s NOI. Id. at p. 679. As the Court noted, “paragraph 2 above” referenced Plaintiff’s statement of the applicable standard of care. Id. In evaluating the sufficiency of Plaintiff’s statement under MCL 600.2912b(4)( c), the Roberts Court noted the statement was a “circular and unresponsive assertion” that was “not minimally compliant with the statutory mandate that plaintiff provide a statement of the manner in which defendants breached the applicable standard of care” Id. at p. 696. Accordingly, the Roberts Court concluded Plaintiff’s NOI did not comply with the statutory requirements for Notices of Intent under MCL 600.2912b(4)( c).
In the present matter, Plaintiff’s NOI wholly fails to address the manner in which Defendant’s breached the applicable standard of care. Instead, Plaintiff’s NOI merely lists a number of actions which Plaintiff alleges should have been undertaken, and a time frame in which they allegedly should have been completed. (See Exhibit I). However, Plaintiff’s NOI never specifically alleges that the standard of care required any individual Defendant physician to take any of the specific actions alleged. Thus, Plaintiff’s NOI, like the Plaintiff’s in Roberts, fails to comply with MCL 600.2912b(4)( c).
Because Plaintiff did not fulfill his obligation under § 2912b to set forth either the standard of care or the breach of that standard of care in order to put Defendants, Dr. Mathai or any other Defendant, properly on notice of his claims, the statute of limitations was not tolled during the notice period. Id. at p. 702. Therefore, Plaintiff’s medical malpractice claim must be dismissed with prejudice.
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C. Plaintiff’s Affidavits Of Merit Fail To Set Forth The Required Elements In Order To Certify The Merit Of Plaintiff’s Claims. Plaintiff’s Affidavit of Merit by Brent Williams, M.D., filed with the original Complaint,
does not conform to the requirements of MCL 600.2912d and, therefore, Plaintiff’s medical malpractice claim must be dismissed pursuant to FRCP 12(b)(6). The Affidavit concerns 6 physicians7 and one medical provider vicariously 8, yet it fails to refer to any of these persons specifically, or to identify the medical standard of care applicable to each Defendant, the manner in which each breached the standard of care, and/or the actions each Defendant was required to take to comply with the standard of care
Under MCL 600.2912d a Plaintiff alleging medical malpractice must file with his Complaint an Affidavit of Merit signed by a health professional who is believed to meet the requirements for an expert witness under MCL 600.2169. MCL 600.2912d (1). Additionally, MCL 600.2912d(1) sets forth several elements that the Affidavit of Merit must contain to properly certify Plaintiff’s claims. Specifically, MCL 600.2912d(1) provides a Plaintiff’s Affidavit of Merit “shall contain a statement of each of the following:”:
(a) The applicable standard of practice or care. (b) The health professional's opinion that the applicable standard of practice or care was
breached by the health professional or health facility receiving the notice. ( c) The actions that should have been taken or omitted by the health professional or
health facility in order to have complied with the applicable standard of practice or care. (d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. MCL 600.2912d(1)(a)-(d).
As the plain language of MCL 600.2912d makes clear, the content of Affidavits of Merit is statutorily prescribed. Thus, when a Plaintiff files an Affidavit that does not comply with the
7 Aubertro Antonini, M.D., John Axelson, M.D., Malcom Trimble, M.D., Dr. Bey, Bency Mathai, M.D., and Ray H. Clark, M.D.
8 CMS. -32-

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requirements of MCL 600.29212d, the Plaintiff technically fails to complete the filing of his Complaint. Such a failure subjects the action to dismissal pursuant to MCR 2.116( C)(7). Mouradian, supra at p. 573. An Affidavit that does not contain statements concerning a claim that a Plaintiff wishes to assert at trial is "grossly nonconforming" with respect to that claim, and the claim therefore cannot be asserted at trial. Mouradian, supra at pp. 573-574. An Affidavit of Merit that does not conform to the statutory requirements does not satisfy the statutory filing requirements and does not support the filing of a Complaint that tolls the running of the statute of limitations. Geralds, supra at pp. 235-240; Mouradian, supra at pp. 573-574.
Plaintiff’s attached Affidavits of Merit by Brent Williams, M.D. and Dr. Carol Bradford, M.D. (See Exhibit K)9. Plaintiff’s Affidavits of Merit do not set forth the required element of the standard of care. Instead, each Affidavit lists several actions that the Affiants contend “a reasonable general practitioner, internist, or health care provider” would have done (Exhibit K). As is clear from this language, the Affidavits of Merit completely fail to indicate any specific physician to whom Plaintiff is directing his claims. Rather, to the extent the Affidavits allege a standard of care, they appear to allege that the same standard applies equally to a general practitioner, an internist, or any health care provider. Clearly such language leaves open the absurd result that a wide range of health care providers–such as a surgeon, a nurse, a pharmacist, a laboratory technician, or a nurse’s aid–are all properly held to the same standard of care. Obviously, such result is legally untrue, and this reality exposes the fact Plaintiff’s Affidavits are simply lists of potential interventions that could be performed in treating a patient, not a cohesive standard of care
9 Pursuant to MCL 600.2916, only the affidavit of Dr. Williams is relevant to this case and Dr. Mathai since both he and Dr. Mathai are board certified in the same medical profession, internal medicine. Dr. Bradford does not spend the majority of her practice in the specialty of internal medicine, therefore, she is not qualified to testify concerning the applicable standard of care.
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delineating the proper practice as to any specific health care provider or Defendant. Accordingly,
Plaintiff’s Affidavits of Merit fail to certify Plaintiff’s claims.
In failing to file an Affidavit which complies with the requirements for MCL 600.2912d,
Plaintiff did not technically complete the filing of his Complaint. Therefore, Plaintiff’s Complaint
should be dismissed pursuant to FRCP 12(b)(6) because Plaintiff failed to commence his action prior
to the expiration of the two year statute of limitations. Mouradian v. Goldberg, 256 Mich. App.
566, 573 (Mich. Ct. App., 2003)
D. Plaintiff’s NOI And/Or Affidavit Of Merit Fail To Sufficiently Specify The Element Of Proximate Cause Pursuant To MCL 600.2912b(4) And/Or MCL 600.2912d(1)(d).
In pertinent part, MCL 600.2912d(1)(d) requires, “...The affidavit of merit shall... contain
a statement of each of the following: ...(d) The manner in which the breach of the standard of
practice or care was the proximate cause of the injury alleged in the notice.” With respect to
proximate cause, Dr. Williams’ Affidavit simply states,
Mr. Broder suffered the following injuries as the proximate result of the acts and omissions that were outside the standard of care: a. Long-term sore throat, weight loss, loss of voice, and difficulty swallowing for
months longer than was necessary; b. Progression of his cancer from Stage I to Stage III T2N1, lowering his statistical life
expectancy; c. Three courses of chemotherapy with all attendant side effects, including the insertion
of a PEG tube and subsequent infection, as well as possible long-term dental problems, all of which were avoidable because Stage I laryngeal cancer is treatable by radiation alone; c. Physical pain and suffering, mental anxiety, and emotional anguish because of the complications and side effects of the additional treatments needed to remedy his Stage III laryngeal cancer and because of the uncertainty caused by the delays in diagnosis, treatment, follow-up, and the increased risk of occurrence.
In Bailey v. Pornpichit, 2006 Mich App Lexis 2459 (unpublished) (Exhibit P) on August 8,
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2006, the Court of Appeals recently held that such language contained in an Affidavit of Merit is insufficient to satisfy the requirements of MCL 600.2912d(1)(d). In Bailey the Court of Appeals looked to the Supreme Court’s decision in Roberts, supra at pp. 699-700 n 16. In Roberts, the Supreme Court held that a NOI submitted under MCL 600.2912b was insufficient because, among other things, the Notice failed to state the manner in which the Defendants’ alleged breach of the standard of care proximately caused the injury:
Plaintiff's notices of intent state that "as a result of [defendants'] negligence . . ., [plaintiff] is now unable to have any children." At first blush, this may appear to satisfy the proximate causation requirement of § 2912b(4)(e). However, it is not sufficient under this provision to merely state that defendants' alleged negligence caused an injury. Rather, § 2912b(4)(e) requires that a notice of intent more precisely contain a statement as to the manner in which it is alleged that the breach was a proximate cause of the injury. Id. In the present case, Plaintiff’s NOI clearly fails to satisfy the requirements of MCL 600.2912b(4)(e) because it does not contain a statement as to the manner in which it is alleged that the breach was a proximate cause of Plaintiff’s injury, as required by Roberts. Id. In Bailey, the Defendants moved for summary disposition arguing that Plaintiff's Affidavit of Merit failed to comply with the requirements of MCL 600.2912d because it did not sufficiently specify the required element of proximate cause and, therefore, Plaintiff did not properly commence her action. With respect to proximate cause, the Affidavit of Merit simply stated, "That as a result of the Dr.’s failure to comply with the applicable standard of care, as outlined above, Christal Bailey was delivered stillborn." The Court of Appeals held Plaintiff’s Affidavit of Merit did not comply with MCL 600.2912d(1)(d). The court reasoned as follows: The mere correlation between alleged malpractice and an injury is insufficient to show proximate cause. Craig v Oakwood Hosp, 471 Mich. 67, 86-88; 684 N.W.2d 296 (2004). Proximate cause is a legal term of art that incorporates both
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cause in fact and legal (proximate) cause. Id. at 86. The cause in fact element generally requires showing that but for the defendant's actions, the plaintiff's injury would not have occurred. Id. at 86-87. Legal (proximate) cause normally involves examining the foreseeability of consequences and whether a defendant should be held legally responsible for such consequences. Id. at 87.
In this case, plaintiff's affidavit describing the matter of proximate cause simply states "[t]hat as a direct result of Dr. [Sethavarangura's] failure to comply with the applicable standard of care, as outlined above, Christal Bailey was delivered stillborn." The standard of care "outlined above" consisted of performing tests. Presumably, if defendant had performed the tests and learned of Christal Bailey's fetal distress, then defendant possibly could have done something to save her. But the affidavit does not describe the manner in which defendant's failure to perform the tests factually and foreseeably caused Christal Bailey to be stillborn. It is possible that, even had defendant performed the tests, Christal Bailey still could have been stillborn. Therefore, we find that plaintiff's affidavit of merit was insufficient to satisfy MCL 600.2912d(1)(d). [emphasis added]
The statement of proximate cause in the Affidavit of Merit in Bailey is factually similar to
the Affidavit of Merit in the present case. In the present case, like in Bailey, presumably Plaintiff
alleges that if Defendant monitored Plaintiff closer his tests and treatment would have been
completed sooner. But similar to Bailey, the Affidavit in the present case does not describe the
manner in which Defendant’s alleged failure to monitor Plaintiff“factually and forseeably” caused
Plaintiff “to suffer prolonged as alleged. It is possible that, even had Defendant monitored Plaintiff
closer, Plaintiff’s testing and treatment would not have occurred sooner in light of the opinions and
schedules of the various consulting specialists utilized, and the nature of Plaintiff’s cancer.
Further, there is no evidence Plaintiff’s cancer ever progressed from Stage I to III as alleged
by Plaintiff, or that more invasive treatment was required as a result of any alleged delay. Plaintiff
has not complied with the forseeability requirement of MCL 600.2912a(2), which states,
In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an
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opportunity to achieve a better result unless the opportunity was greater than 50%
Under MCL § 600.2912a(2) a medical malpractice Plaintiff has the burden of proving that the Plaintiff's opportunity to achieve a better result was greater than 50 percent, which is calculated by subtracting the chance a better result after treatment from the chance for survival or a better result before treatment. Ensink v Mecosta County Gen. Hosp., 262 Mich App 518, 687 NW2d 143 (2004), later proceeding 262 Mich App 801, 687 NW2d 901 (2004). In the present case, Plaintiff was cured of his cancer. There is no evidence that his opportunity to achieve a better result was decreased by greater than 50% as a result of Dr. Mathai’s alleged medical malpractice.
Under the present circumstances, the Court must find that Plaintiff’s Affidavit of Merit is insufficient to satisfy MCL 600.2912d(1)(d), consistent with the Court of Appeals’ decision in Bailey and the authority stated therein. Therefore, Plaintiff has failed to state a claim for medical malpractice, and the claim must be dismissed pursuant to FRCP 12(b)(6) and/or FRCP 56.
ARGUMENT IV: Defendant Dr. Mathai Is Entitled To Summary Judgment Concerning Plaintiff’s Medical Malpractice Claim Pursuant To FRCP 56 Because Plaintiff’s Experts Admit There Was No Delay By Dr. Mathai. Plaintiff’s allegations that Dr. Mathai may have breached the medical standard of care in delaying the diagnosis of Plaintiff’s laryngeal cancer are without any factual support. Plaintiff’s expert, Dr. Williams, testified Dr. Mathai should have diagnosed the cancer as of August 1, 2001. (Exhibit O, p. 39, line 23 to p. 40, line 1) That is because as of that date Plaintiffs allege Dr. Mathai
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was aware that since March 2001 Dr. Mathai was aware Plaintiff has a persistent sore throat, progressive dysphagia, and persistent weight loss. However, Dr. Williams admitted during his testimony there is no evidence of these symptoms during the time period in question, between March through August 2001. There is no evidence that a letter from Plaintiff concerning his symptoms was ever received by Dr. Mathai. (Exhibit O, p. 41, lines 2 to p. 42, line 1) Dr. Williams testified the only evidence in the chart of persistent symptoms was Dr. Antonini’s progress note concerning his October 12, 2001 examination. (Exhibit O, p. 42, lines 5-12) Dr. Williams testified: Plaintiff’s sore throats were intermittent. (Exhibit O, p. 42, line 23 to p. 43, line 6); and his weight loss in the chart was intermittent. (Exhibit O, p. 43, line 7 to p. 44, line 7) Dr. Williams admitted there is no evidence Dr. Mathai ever received from Plaintiff the same complete history as Dr. Antonini received on October 12, 2001 when laryngeal cancer was first suspected. (Exhibit O, p. 52, lines 15-18). Given the lack of information observed by Dr. Mathai concerning the conditions required to diagnose Plaintiff’s laryngeal cancer, Plaintiff’s claim that Dr. Mathai did not timely diagnose or suspect Plaintiff’s laryngeal cancer must be dismissed. (refer to Exhibit O, pp. 30 to 53)
Plaintiff’s claim that Dr. Mathai committed medical malpractice because she allegedly did nothing to facilitate the care and treatment of Plaintiff’s cancer once it was suspected on October 12, 2001, must also be dismissed since it is unsupported by the evidence according to Dr. Williams. Specifically, Dr. Williams testified Dr. Mathai was not responsible for Mr. Broder’s care from October 1, 2001 through October 21, 2001 while she was away on vacation. (Exhibit O, p. 45, lines 1-10) Similarly, he also testified Dr. Mathai was not responsible for Plaintiff while on maternity leave from March 9, 2002, through May 15, 2002. (Exhibit O, p. 80, lines 7-16) Dr. Williams has no criticisms of Dr. Mathai after she returned from maternity leave. (Exhibit O, p. 80, lines 17-20)
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therefore, the only remaining dates at issue concerning Dr. Mathai are between October 21, 2002 through March9, 2002.
During the remaining dates at issue, Dr. Williams testified Dr. Mathai timely followed the recommendations of the treating consulting cancer and oncology specialists. (Exhibit O, p. 54 through 77) Therefore, she did not breach the standard of care by delaying Plaintiff’s cancer diagnosis or treatment. Specifically, Dr. Williams testified that between October 12, 2001 and November 13, 2001, Plaintiff was timely referred to ENT specialist, Dr. Kornak. (Exhibit O, p. 56, line 25 to p. 57, line 9) The standard of care entitled Dr. Mathai to rely on the opinions of the specialty consultant, Dr. Kornak. (Exhibit O, p. 61, lines 12-16) Dr. Kornak testified during his deposition that under the circumstances the microlaryngoscopy and vocal cord stripping procedures were scheduled within a reasonable amount of time after his November 11, 2001 examination. (Exhibit C, p. 20-21). Dr. Williams testified, once Plaintiff’s microlaryngoscopy and vocal cord stripping were completed January 11, 2002, it was within the standard of care for Dr. Mathai to wait for the pathology report before taking any other action. (Exhibit O, p. 699, line 24 to p. 70, line 3) It was within the standard of care for Dr. Mathai to wait for Mr. Broder to return to Dr. Kornak on January 22, 2002 for followup before taking any other action (Exhibit O, p. 70, lines 21 - p. 71 line 3), for Dr. Mathai to rely on Dr. Kornak’s specialty consult referral to radiation oncology (Exhibit O. p. 72, lines 1-9), and for her to wait until completion of the consult on February 5, 2002 before taking any further action. (Exhibit O, p. 73, lines 9-23) Dr. Mathai timely reviewed the radiation oncology consult report on February 8, 2002. (Exhibit O, p. 77, lines 4-8) Plaintiff was scheduled to receive simulation of treatment recommended by the radiation oncologists on March 12, 2002, and to begin radiation treatment on March 19, 2002. In the interim, Dr. Mathai began her maternity
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leave on March 9, 2002 and was not responsible for plaintiff thereafter. Dr. Williams testified someone else other than Dr. Mathai was responsible for the timely completion of Plaintiff’s radiation therapy. (Exhibit O, p. 77, lines 16-23)
For Plaintiff to meet his burden of proof on his medical malpractice claim, MCL 600.2169 requires expert testimony from Dr. Williams to support Plaintiff’s claim that Dr. Mathai breached the medical standard of practice and care to timely diagnose and treat Plaintiff’s cancer. As set fort above, Dr. Williams does not support Plaintiff’s claim. Dr. Mathai did not breach the applicable medical standard of practice and care under the present circumstances. Therefore, Dr. Mathai should be granted summary judgment concerning Plaintiff’s medical malpractice claim pursuant to FRCP 56.
CONCLUSION Defendants, Dr. Hutchinson and Dr. Mathai are entitled to summary judgment as a matter of law as there are no genuine issues of material fact presented by Plaintiff. When all the evidence is viewed in a light most favorable to the Plaintiff, there remains no genuine issues of material fact, and Defendants are entitled to summary judgment as a matter of law pursuant to FRCP 56. Defendant, Dr. Hutchinson, may not be found vicariously liable, on a theory of supervisory liability or otherwise, for the alleged actions of CMS, Dr. Mathai or others. Dr. Hutchinson did not have any personal involvement with Plaintiff. Further, Plaintiff can not show any policy, practice, or procedure, officially adopted by Dr. Hutchinson on behalf of himself or CMS and relied on the Defendants, that was deliberately indifferent to Plaintiff’s serious medial needs and/or harmed Plaintiff.
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Plaintiff failed to satisfy the subjective element of a deliberate indifference claim against Defendants Dr. Hutchinson, and Dr. Mathai as well. Dr. Hutchinson had no personal involvement with Plaintiff’s treatment and therefore could not be deliberately indifferent to Plaintiff’s condition. Dr. Mathai treated Plaintiff in accordance with his professional medical judgment and not in a criminally reckless manner and therefore did not act with deliberate indifference or reckless disregard.
Plaintiff’s claim for medical malpractice must also be dismissed with prejudice. Plaintiff failed to serve a proper Notice of Intent, and failed to file proper Affidavits of Merit with his Complaint or his Amended Complaint. Because Plaintiff’s Notice of Intent and Affidavits of Merit were statutorily insufficient, Plaintiff failed to properly commence his claim, and failed to toll the applicable statute of limitations.
Finally, Plaintiff’s claim for medical malpractice is unsupported by their only standard of care expert, Brent Williams, M.D.

RELIEF REQUESTED WHEREFORE, Defendants, Bency Mathai, M.D. and Craig Hutchinson, M.D., pray that this Honorable Court shall dismiss the present case with prejudice for the reasons stated herein.

Respectfully submitted, CHAPMAN AND ASSOCIATES, P.C.

Dated: November 30, 2006

s/Brian J. Richtarcik CHAPMAN AND ASSOCIATES, P.C. 40950 N Woodward, Suite 120 Bloomfield Hills, MI 48304
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(248) 644-6326 Brichtarcik@chapmanandassociates.com P49390 PROOF OF SERVICE
I hereby certify that on November 30, 2006, I presented the foregoing paper to the Clerk of the Court for filing and uploading to the ECF system, which will send notification of such filing to the attorneys of record listed herein and I
hereby certify that I have mailed by US Postal Service the document to the involved non participants. s/Brian J. Richtarcik
CHAPMAN AND ASSOCIATES, P.C. 40950 N Woodward, Suite 120
Bloomfield Hills, MI 48304 (248) 644-6326
Brichtarcik@chapmanandassociates.com P49390
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 Case 2:03-cv-75106-MOB-PJK Document 167 Filed 09/04/2009 Page 1 of 22

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER, by James H. Jackson, Personal Representative of the Estate of Steven Broder,

Plaintiff, vs

Case No. 03 75106 Honorable Marianne O. Battani Magistrate Paul J. Komives

CORRECTIONAL MEDICAL SERVICES, INC., CRAIG HUTCHINSON, its medical director, and BENCY MATHAI, and employees of the Michigan Department of Corrections, namely: GEORGE PRAMSTALLER, Medical Director, and JAN EPPS, Regional Medical Director in their individual capacities,

Defendants.

_______________________________________________________________________/

Michigan Clinical Law Program

The JuipRichtarcik Law Firm

Paul D. Reingold (P27594)

Brian J. Richtarcik (P49390)

Attorneys for Plaintiff

Randall A. Juip (P58538)

363 Legal Research Building

Attorneys for Defendant, Correctional

801 Monroe Street

Medical Services, Inc., Craig Hutchinson,

Ann Arbor, MI 49109-1215

M.D. and Bency Mathai, M.D.,only.

(734) 763-4319

The Penobscot Building

645 Griswold, Ste. 3850

Thomas H. Blaske (P26760)

Detroit, MI 48226

John F. Turck IV (P67670)

Ph(313)859-5900; fax(313)859-5959

Blaske & Blaske, PLC

Co-Counsel for Plaintiff

A Peter Govorchin (P31161)

500 South Main Street

Assistant Attorney General

Ann Arbor, MI 48104

Attorney for Defendants Pramstaller

(734) 747-7055

and Epps

Corrections Division

P.O. Box 30217

Lansing, MI 48909

(517) 335-7021

_______________________________________________________________________/

DEFENDANTS MOTION TO DISMISS PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES AND ATTORNEY FEES

Case 2:03-cv-75106-MOB-PJK Document 167 Filed 09/04/2009 Page 2 of 22
NOW COME the Defendants, Correctional Medical Services, Inc. (CMS), Bency Mathai, M.D., and Craig Hutchinson, M.D., only, by and through their attorneys, Chapman And Associates, P.C., and for their Motion For Summary Judgment Regarding Plaintiff’s Claim For Puntive Damages, state as follows:
1. Plaintiff’s amended complaint claims punitive damages pursuant to 42 U.S.C. § 1983. 2. Plaintiff is the personal representative of the Estate of Steven Broder, deceased. 3. Plaintiff’s claims only survive the death of Mr. Broder pursuant to the Michigan
Wrongful Death Act MCL 600.2922. However, the Wrongful Death Act does not permit a party to receive punitive damages or attorney fees. 4. Defendants expect that Plaintiff will argue to the jury during trial that Plaintiff is entitled to punitive damages and attorney fees. 5. Because the Wrongful Death Act does not permit a party to receive punitive damages and/or attorney fees it would be extremely prejudicial to Defendants if Plaintiff is permitted to argue entitlement to such relief to the jury during trial. 6. The trial court must not permit Plaintiff to argue for punitive damages and/or attorney fees during trial, and should strike Plaintiff’s punitive damages and attorney fee claims because it is not permitted by Michigan law under the circumstances of this case. 7. Defendants rely on the facts and arguments in their supporting brief, as if more fully restated herein.
2

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WHEREFORE, Defendants pray that this Honorable Court shall dismiss Plaintiff’s claim for punitive damages and attorney fees pursuant to Michigan’s Wrongful Death Act, MCL 600.2622(6) is dismissed.

Dated: September 4, 2009.

By:__/s/ Randall A. Juip___________ Randall A. Juip (P58538) Attorneys for Defendant, Correctional Medical Services, Inc., Craig Hutchinson, M.D. and Bency Mathai, M.D.,only. 645 Griswold, Suite 3466 Detroit, MI 48226 Ph(313) 859-5900; fax(313)859-5959

3

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER, by James H. Jackson, Personal Representative of the Estate of Steven Broder,

Plaintiff, vs

Case No. 03 75106 Honorable Marianne O. Battani Magistrate Paul J. Komives

CORRECTIONAL MEDICAL SERVICES, INC., CRAIG HUTCHINSON, its medical director, and BENCY MATHAI, and employees of the Michigan Department of Corrections, namely: GEORGE PRAMSTALLER, Medical Director, and JAN EPPS, Regional Medical Director in their individual capacities,

Defendants.

_______________________________________________________________________/

Michigan Clinical Law Program

The JuipRichtarcik Law Firm

Paul D. Reingold (P27594)

Brian J. Richtarcik (P49390)

Attorneys for Plaintiff

Randall A. Juip (P58538)

363 Legal Research Building

Attorneys for Defendant, Correctional

801 Monroe Street

Medical Services, Inc., Craig Hutchinson,

Ann Arbor, MI 49109-1215

M.D. and Bency Mathai, M.D.,only.

(734) 763-4319

The Penobscot Building

645 Griswold, Ste. 3850

Thomas H. Blaske (P26760)

Detroit, MI 48226

John F. Turck IV (P67670)

Ph(313)859-5900; fax(313)859-5959

Blaske & Blaske, PLC

Co-Counsel for Plaintiff

A Peter Govorchin (P31161)

500 South Main Street

Assistant Attorney General

Ann Arbor, MI 48104

Attorney for Defendants Pramstaller

(734) 747-7055

and Epps

Corrections Division

P.O. Box 30217

Lansing, MI 48909

(517) 335-7021

_______________________________________________________________________/

BRIEF IN SUPPORT OF

DEFENDANTS MOTION TO DISMISS

PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES AND ATTORNEY FEES

Case 2:03-cv-75106-MOB-PJK Document 167 Filed 09/04/2009 Page 5 of 22
TABLE OF CONTENTS INDEX OF AUTHORITIES.......................................................................................................... iii QUESTIONS PRESENTED............................................................................................................v CONTROLLING AUTHORITY................................................................................................... vi FACTS .............................................................................................................................................1 STANDARD OF REVIEW .............................................................................................................1 ARGUMENTS.................................................................................................................................2
Punitive damages and attorney fees are not permitted under the Michigan Wrongful Death Act (WDA) MCL 600.2922, therefore Plaintiff should be prohibited from arguing for punitive damages at trial.
A. Without application of Michigan’s survival and wrongful death statutes, Mr. Broder’s claim for damages under 42 USC§ 1983 expired (abated)upon his death ...........................................................................................2
B. Michigan’s WDA is consistent with the Constitution and laws of the United States therefore this court is obligated by 42 USC § 1988 to apply the damages criteria from the WDA to Plaintiff’s proposed amended complaint ..........................................................8
CONCLUSION..............................................................................................................................13
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INDEX OF AUTHORITIES

CASES:

PAGE

Bernier v Board of County Rd. Comm'rs, 581 F Supp 71(1983, WD Mich) ..................................7

Carey v Piphus, 435 US 247 (1978) ..............................................................................................10

Claybrook v Birchwell, 199 F3d 350, 357 (CA 6, 2000). ..............................................................6

Courtney v Apple, 345 Mich 223, 76 NW2d 80(1956) ...................................................................4

Fellows v. Superior Prods. Co., 201 Mich App 155, 506 NW2d 534 (1993)..................................7

Frontier Insurance Co v Blaty, 454 F3d 590, 598 (CA 6, 2006). ....................................2, 8, 10, 12 Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998) ...................................................................1

Hardy v Maxheimer, 492 Mich 422, 439-440 (1987)......................................................................5

Jaco v Bloechle, 739 F2d 239 (CA 6, 1984)............................................................................10, 11

Jenkins v Patel, 471 Mich 158 (2004) .............................................................................................8

Kemp v Pfizer, Inc., 947 F Supp 1139 (1996, ED Mich) ......................................................... vii, 7

Memphis Community School District v Stachura, 477 US 299, at 307 (1986)...............................9

Moore v County of Alameda, 411 U.S. 693, 703; 93 S. Ct. 1785 (1973). .................................2, 3

Polec v Northwest Airlines, (In re Air Crash Disaster) 86 F3d 498, 44 Fed Rules Evid Serv 1102, 34 FR Serv 3d 1067 (1996, CA6 Mich)................................................................................ vii, 6, 7

Robertson v Wegmann, 436 US 584 (1978)..........................................................................3, 9, 10 Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993). ....................................................2

Smith v Wade, 461 US 30 (1983)....................................................................................................3

iii

Case 2:03-cv-75106-MOB-PJK Document 167 Filed 09/04/2009 Page 7 of 22 STATUTUES: MCL 600.2921.............................................................................................................................3, 5 MCL 600.2922............................................................................................. vi, vii, 1, 4, 5, 9, 11, 12 FEDERAL RULES OF CIVIL PROCEDURE: FRCP 12(b)(6) .................................................................................................................................4 FEDERAL STATUTES: 42 USC § 1983.................................................................................................................2, 3, 6, 7, 8 42 USC § 1988...................................................................................................................2, 5, 8, 11 42 USC § 1988(a) ....................................................................................................................2, 3, 9
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QUESTION PRESENTED

WHETHER PLAINTIFF MAY BE ENTITLED TO PUNITIVE DAMAGES AND/OR ATTORNEY FEES AT TRIAL PURSUANT TO THE MICHIGAN WRONGFUL DEATH ACT (WDA) MCL §600.2922.

Plaintiff argues: Defendants argue:

YES. NO.

v

Case 2:03-cv-75106-MOB-PJK Document 167 Filed 09/04/2009 Page 9 of 22 CONTROLLING AUTHORITY
Michigan’s Wrongful Death Act (WDA), MCL §600.2922, does not permit an award for punitive damages and/or attorney fees. Kemp v Pfizer, Inc., 947 F Supp 1139 (1996, ED Mich). The WDA is narrowly construed. Id. The WDA provides exclusive remedies for injuries resulting in death, whether instantaneous or resulting in a claim surviving "by law," and such remedies do not include exemplary or punitive damages or allow recovery of them under the WDA. Polec v Northwest Airlines, (In re Air Crash Disaster) 86 F3d 498, 44 Fed Rules Evid Serv 1102, 34 FR Serv 3d 1067 (1996, CA6 Mich).
vi

Case 2:03-cv-75106-MOB-PJK Document 167 Filed 09/04/2009 Page 10 of 22
FACTS Mr. Broder originally filed the present action on December 19, 2003 alleging defendants were deliberately indifferent to his serious medical needs by failing to diagnose and treat his laryngeal cancer timely. In April 2002 Mr. Broder was successfully treated with chemoradiation therapy and he remained disease free thereafter for over 5 years. In February 2008 he was diagnosed again with laryngeal cancer, which resulted in his death in December 2008. In January 2008, Plaintiff was appointed the personal representative of Mr. Broder’s estate. Plaintiff filed an second amended complaint on or about April 24, 2009 (Docket #149) alleging a wrongful death claim pursuant to MCL §600.2922. Like before, the amended complaint alleges a claim for punitive damages, however unlike before Mr. Broder is now deceased. Defendants argue that Plaintiff’s second amended complaint requesting punitive damages fails to state a claim upon which punitive damages may be awarded since Plaintiff is not entitled to punitive damages pursuant to Michigan’s Wrongful Death Act, MCL §600.2922. Plaintiff’s claim for punitive damages should be dismissed pursuant to Fed. R. Civ. Proc. 12(b)(6).
STANDARD OF REVIEW A. Standard Applicable To A Motion To Dismiss Pursuant To Fed. R. Civ. P.
12(b)(6) In deciding a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must construe the Complaint in a light most favorable to Plaintiff and must accept Plaintiff's factual allegations as true. Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). Dismissal is appropriate if it is clear that Plaintiff will not be able to prove his claims under any circumstances. Grindstaff v. Green at 421. In considering such a motion, the Court need not accept Plaintiff's legal conclusions or "unwarranted factual inferences." Id. Generally, a Court
1

Case 2:03-cv-75106-MOB-PJK Document 167 Filed 09/04/2009 Page 11 of 22
may decide a Motion to Dismiss only on the basis of the pleadings. Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993).
ARGUMENT
PUNITIVE DAMAGES AND/OR ATTORNEY FEES ARE NOT PERMITTED UNDER THE MICHIGAN WRONGFUL DEATH ACT (WDA) MCL §600.2922, THEREFORE PLAINTIFF SHOULD BE PROHIBITED FROM ARGUING FOR PUNITIVE DAMAGES AT TRIAL.
A. Without application of Michigan's survival and wrongful death statutes, Mr. Broder’s claim for damages under 42 USC § 1983 expired (abated) upon his death.
42 USC § 1988 is the federal statute that describes the applicability of statutory and
common law to federal civil rights activities. That section states in pertinent part:
42 USC § 1988(a). Applicability of statutory and common law. The jurisdiction in civil and criminal matters conferred on the district and circuit courts [district courts] by the provisions of this Title, and the Title "Civil Rights" and of Title "Crimes" for the protection of all persons in the United States and their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect;…
The 19th century common law rule was that an injured party's personal claim was always extinguished upon the death of either the injured party himself or the alleged wrongdoer.1 42
USC § 1983 does not provide any guidance regarding what damages are available under that section,2 nor does 42 USC § 1983 address whether an action brought pursuant to that statute survives death.3 Federal law does not cover every issue that may arise in the context of federal civil rights actions.4
1 Moore v County of Alameda, 411 US 693, at 702 (1973) citing Prosser, Law of Torts, p 900-901 (4th ed, 1971). 2 Frontier Insurance Co v Blaty, 454 F3d 590, 598 (CA 6, 2006). 3 Robertson v Wegmann, 436 US 584, 588-89 (1978). 4 Moore v County of Alameda, 411 U.S. 693, 703; 93 S. Ct. 1785 (1973).
2

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Since federal law does not address the situation where a 42 USC § 1983 claimant has died, we can look to the rest of 42 USC § 1988(a) for the reference to the law that guides the evaluation and controls of the status of a claim after the death of a civil rights victim. The rest of 42 USC § 1988(a) states,
…but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the Constitution and statutes of the State in the court having jurisdiction of such civil or criminal causes held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty Mr. Broder’s claim brought pursuant to 42 USC § 1983 and filed prior to his death entitled him to assert a claim for compensatory damages, including loss of enjoyment of life, and allege a claim for punitive damages.5 Mr. Broder’s death extinguished (abated) those claims. 42 USC § 1983 does not address what happens to this type of claim after the person whose civil rights were allegedly violated, dies. The second part of 42 USC § 1988(a), quoted above, directs the inquiry to the "common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held." Thus, the determination of what claims, if any, survive or can be pursued as a result of the experiences of Mr. Broder during his life is left to Michigan's common law as modified by its Constitution and statutes. Michigan's survival statute, MCL 600.2921 allows a claim related to Mr. Broder’s experience to "survive" his death. In Michigan, the right to recover damages for wrongfully causing a death rests wholly on statute, and recovery of damages is limited to those specified by legislature and sustained by proofs. Courtney v Apple, 345 Mich 223, 76 NW2d 80(1956). Michigan's survival statute states:
5 Smith v Wade, 461 US 30 (1983).
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Case 2:03-cv-75106-MOB-PJK Document 167 Filed 09/04/2009 Page 13 of 22
All actions and claims survive death. Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section. If an action is pending at the time of death the claims may be amended to bring it under the next section. A failure to so amend will amount to a waiver of the claim for additional damages resulting from death.
The section states that the ability to bring or maintain a pending action survived Mr.
Broder’s death but that any claims for damages for injuries which resulted in that death may not
be prosecuted after the death of Mr. Broder "except pursuant to the next section." That next
section is Michigan's Wrongful Death Act (WDA), MCL 600.2922. That section states, in
pertinent part:
(1) Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused by a wrongful act, neglect, or fault of another, and the act, neglect or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony.
Subsection 2 of MCL 600.2922 states as follows:
(2) Every action under this section shall be brought by, and in the name of, the personal representative of the estate of the deceased. Within 30 days after the commencement of an action, the personal representative shall serve a copy of the complaint and notice as prescribed in subsection (4) upon the person or persons who may be entitled to damages under subsection (3) in the manner and method provided in the rules applicable to probate court proceedings.
Plaintiff (James H. Jackson, as personal representative of the Estate of Steven Broder,
Deceased) may be the proper party to pursue this action in accord with Michigan's survival and
WDA. Any possible confusion that the survival statute and that statute's reference to the WDA
describe two distinct events has been resolved by the Michigan Supreme Court in its 1987 decision in Hardy v Maxheimer.6 There the court stated:
6 Hardy v Maxheimer, 492 Mich 422, 439-440 (1987).
4

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Thus, a death action (i.e., where the death is instantaneous) like any other cause of action under the Revised Judicature Act may be said to "survive by law" for purposes of [the State's period of limitations]. The claim "survives" the decedent's death to vest in those who suffer a loss through the death—it "survives" to those who are entitled to claim damages under the wrongful death act.
The court went on to state at the end of page 440 that "[w]e, therefore believe that since
1846 the law in Michigan has evolved to the point where it may now be held that the right to recovery for wrongful death 'survives by law.'"7 Consequently, a wrongful death action will no
longer be regarded as one created at the time of death, but as one that "survives by law."
Assuming Plaintiff is properly the personal representative of Mr. Broder’s estate, the
question becomes what claim Plaintiff can still pursue since Mr. Broder’s death and the
expiration (abatement) of his personal right to damages. 42 USC § 1988 directs us to the
common law in Michigan as modified by its Constitution and statutes. This takes us to
Michigan's WDA. The survival statute says nothing itself about the kinds of damages that can be
recovered in an action that "survives" except that the survival statute specifically states that
claims for injuries that result in death shall not be prosecuted after the death of the injured person, "except pursuant to the next section."8 That next section states what damages are
recoverable. MCL 600.2922(6) states:
(6) In every action under this section, the court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of society and companionship of the deceased.
Therefore, as is directly applicable to the instant lawsuit, Plaintiff is entitled to request, on behalf
of the estate, any (1) reasonable medical, hospital, funeral and burial expenses for which the
7 Hardy v Maxheimer, 492 Mich 422, 439-440 (1987). 8 MCL 600.2921.
5

Case 2:03-cv-75106-MOB-PJK Document 167 Filed 09/04/2009 Page 15 of 22
estate is liable and, (2) reasonable compensation for the pain and suffering, while conscious, undergone by Mr. Broder during the period intervening between the time of the injury and his death. In the instant case, Plaintiff asserts that for some indeterminate period of time running for a period of months or even possibly some years, Plaintiff's decedent was experiencing a violation of his civil rights and certain related pain and suffering. Plaintiff’s medical malpractice claim alleges his medical care received was below the appropriate medical standard of care under the circumstances.
Finally, Michigan's wrongful death act potentially allows any related family members, such as his 3 estranged daughters, to seek (3) damages for the loss of financial support and the loss of society and companionship of the deceased.9 These last damages are damages that would not be available in litigation based on 42 USC § 1983 if Mr. Broder had survived the alleged violation of his civil rights. As the U.S. Court of Appeals for the Sixth Circuit has observed, no cause of action may lie under 42 USC § 1983 to recover for the emotional distress, loss of a loved one, or any other consequent collateral injuries allegedly suffered personally by the victim's family members.10 In the present case, Mr. Broder’s surviving family are not alleging any damages.
The WDA provides exclusive remedies for injuries resulting in death, whether instantaneous or resulting in a claim surviving "by law," and such remedies do not include exemplary or punitive damages and/or attorney fees, or allow recovery of them under the WDA. Polec v Northwest Airlines, (In re Air Crash Disaster) 86 F3d 498, 44 Fed Rules Evid Serv 1102, 34 FR Serv 3d 1067 (1996, CA6 Mich). For example, in Bernier v Board of County
9 Defendants Mr. Broder maintained no close familial relationships with his alleged estranged daughters that would entitle them to seek damages for loss of society, companionship and support, nor have the daughters come forward with such a claim to date by Plaintiff’s own admission in the present motion. 10 Claybrook v Birchwell, 199 F3d 350, 357 (CA 6, 2000).
6

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Rd. Comm'rs, 581 F Supp 71(1983, WD Mich) the court held that since the WDA contained no provision for exemplary damages, plaintiff could not recover such damages if she prevailed against county board of road commissioners. Exemplary damages are not recoverable in a wrongful death action. Fellows v. Superior Prods. Co., 201 Mich App 155, 506 NW2d 534 (1993).
While Michigan's wrongful death act allows for the recovery of certain damages that would not be available to the personal victim of a civil rights violation pursuant to 42 USC § 1983, Michigan's wrongful death act also does not allow the recovery of some types of damages that would have been available to the victim if he had survived. Michigan's wrongful death act does not list loss of enjoyment of life damages or punitive damages as categories of damages that are recoverable by the persons prosecuting a claim that has survived the death of the decedent. Therefore, if this was the end of the analysis, it would be clear that neither loss of enjoyment of life (where life expectancy would be a factor in the damages calculus) or, as more directly applicable to this motion, punitive damages, are available in this lawsuit.
In Kemp v Pfizer, Inc., 947 F Supp 1139 (1996, ED Mich), the court denied a claim for punitive, exemplary and hedonic damages to the plaintiff, personal representative of the estate of her deceased husband, who experienced severe chest pains and died from failure of a surgically implanted heart valve, because Michigan law precludes recovery of punitive damages for products liability actions. The court held that the WDA was narrowly construed to limit recovery of damages to those provisions expressly provided for in the Act, which did not include hedonic or exemplary damages, "loss of enjoyment of life" damages are inconsistent with cases involving death, and the fact that hedonic damages are not available in wrongful death actions in an overwhelming number of jurisdictions was persuasive.
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In the present case, the only authority for Plaintiff to maintain the present case after Mr. Broder’s death is the Michigan’s WDA. There is no provision for punitive damages and/or attorney fees in the WDA. Therefore, Plaintiff’s claim for punitive damages and/or attorney fees must be dismissed.
B. Michigan's WDA is consistent with the Constitution and laws of the United States therefore this court is obligated by 42 USC § 1988 to apply the damages criteria from the WDA to Plaintiff’s proposed amended complaint. In the recent Sixth Circuit decision of Frontier Insurance Co v Blaty,11 the Sixth Circuit
dealt with the question of what kind of damages were available to a two-year old girl who died of extreme neglect while in foster care. In Frontier, the dispute was whether the damages available to the estate on behalf of the two-year old decedent were limited to those damages set forth in Michigan's WDA. The Sixth Circuit pointed out that 42 USC § 1983 provided no guidance on how to evaluate damages in the event of the death of the victim. However, the Frontier Court recognized that 42 USC § 1988 directs the district courts to apply the common law, as modified and changed by the Constitution and statutes of the state wherein the court having jurisdiction of such civil action is held. In the present case Michigan is the state wherein this Court has jurisdiction. Therefore, like in Frontier, Michigan's civil damages allowed by the WDA apply because without the WDA, Mr. Broder’s claim would, be abated by his death.
In Frontier, the plaintiff argued that the Michigan WDA was not a comprehensive list of damages but merely an advisory list. However, the Sixth Circuit, citing the Michigan Supreme Court case of Jenkins v Patel,12 which held that there was no common law right to recover damages for a wrongfully caused death, and concluded that a statute in derogation of the
11 Frontier Insurance Co, 454 F3d at 598. 12 Jenkins v Patel, 471 Mich 158 (2004).
8

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common law, such as the WDA, must be narrowly construed.13 The Frontier Court then reviewed those damages allowed by Michigan's WDA, MCL 600.2922(6) and concluded that for a two-year old decedent, a claim for the loss of enjoyment of her future life was not on the list. Therefore no damages were available for that claim. However, the plaintiff in Frontier argued that even if Michigan's WDA did, by its terms, limit the damages such that his client's claim for loss of future enjoyment of life damages were not available, the federal court should view that limitation of damages as being inconsistent with the Constitution and laws of the United States, citing 42 USC § 1988(a). The Frontier plaintiff argued that federal courts should look to federal common law to allow a broader scope of damages than that allowed by Michigan's wrongful death statute. That argument required the Sixth Circuit to directly consider whether Michigan's wrongful death act, MCL 600.2922(6), was inconsistent with the Constitution and laws of the United States.14 The Sixth Circuit undertook this analysis even though there was no question in the case that this loss of future enjoyment of life or hedonic damages would have been available to the decedent if this decedent had suffered the civil rights action but experienced injuries short of death and had survived to pursue the action on her own behalf.
Citing Robertson v Wegmann, the court considered whether there is inconsistency between Michigan's WDA, federal law and the US Constitution.15 The Frontier Court stated that the policies underlying 42 USC § 1983 include both (1) compensation of persons for injuries caused by deprivations of their federal rights; and (2) deterrence of future deprivation of rights. The Sixth Circuit then cited Memphis Community School District v Stachura16, for the proposition that deterrence operates through the mechanism of damages that are compensatory—
13 Frontier Insurance Co, 454 F3d at 599. 14 42 USC § 1988(a). 15 Robertson v Wegmann, 436 US at 590. 16 Memphis Community School District v Stachura, 477 US 299, at 307 (1986).
9

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damages grounded in determinations of plaintiff's actual losses. The Frontier Court stated that section 1983 presupposes that damages which compensate for actual harm ordinarily suffice to deter constitutional violations.17 The Sixth Circuit declared:
Michigan's wrongful death act is consistent with the compensatory purpose of §1983 identified by the Supreme Court. The act authorizes compensation for losses, including hedonic losses, that are experienced by the decedent before death. There is no requirement under federal law that a state go further than this in providing damages for wrongful death. The loss of enjoyment caused by death is not "actual," in the sense that is relevant here because it is not consciously experienced by the decedent. The Sixth Circuit, citing the Robertson decision, stated that the goal of compensating those injured by deprivation of rights provides no basis for requiring compensation for one who is merely suing as the executor of the deceased's estate. The Frontier Court then cited the US Supreme Court case of Carey v Piphus for the principle that the deterrent aspect of 42 USC § 1983 operates through compensation for the actual damages suffered by the victim.18 Quoting Carey, the Frontier Court stated: "To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages."19 The Frontier Court described the distinction between states' "consistent" or "inconsistent" wrongful death statutes by referring to one of its earlier decisions. In Jaco v Bloechle,20 the Sixth Circuit had found Ohio's wrongful death statute to be inconsistent with the Constitution and the laws of the United States because it provided for no recovery. By comparison, the Frontier Court referenced one of its unpublished decisions where it found that the application of Ohio's wrongful death statute in a case where the victim was killed by police and was granted
17 Frontier Insurance Co, 454 F3d at 601. 18 Carey v Piphus, 435 US 247 (1978). 19 Frontier Insurance Co, 454 F3d at 603. 20 Jaco v Bloechle, 739 F2d 239 (CA 6, 1984).
10

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compensation damages of $25,000 as acceptable and not inconsistent with the Constitution and the laws of the United States.21 In concluding its analysis of whether Michigan's WDA was inconsistent with the Constitution and laws of the United States, the court declared that, under 42 USC § 1988, "…the only basis to supplement the state law damages scheme is a determination that the [state law damages scheme] is inconsistent with the purposes of federal law, and we see no basis for making such a determination here."22
On the question of whether the WDA’s failure to include punitive damages in the list of recoverable damages, if any, several circuits have found that their particular state's wrongful death statutes in those jurisdictions were inconsistent with the Constitution and laws of the United States because of those statutes having very limited compensation schemes.23 Even the Sixth Circuit, when reviewing Ohio's wrongful death statute in the Jaco decision cited above, held that the version of the Ohio statute considered there was inconsistent with the Constitution and laws of the United States. While these other states' wrongful death statutes may be inconsistent with the Constitution and laws of the United States, that is not true for Michigan's WDA. The controlling law in this circuit holds that Michigan's WDA, by providing the range of compensatory damages listed in subsection 6, is not inconsistent with the Constitution and laws of the United States.24
Therefore, 42 USC § 1988 directs this Court to look to the common law as modified by the Constitution and statutes of the state in which the court sits for guidance on the damages available to a claim brought after the alleged victim of a civil rights violation has died. The applicable statute is Michigan's survival and wrongful death statutes, MCL 600.2922. The
21 Frontier Insurance Co, 454 F3d at 602-603. 22 Frontier Insurance Co, 454 F3d at 603. 23 Bell v City of Milwaukee, 742 F2d 1205, 1241 (CA 7, 1984); Garrick v Denver, 652 F2d 969, 971 (CA 10, 1981); McCollough v Glasgow, 620 F2d 47, 51 (CA 5, 1980); Basista v Weir, 340 F2d 74 (CA 3, 1965). 24 Frontier Insurance Co, 454 F3d at 603.
11

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applicable damages provision is MCL 600.2922(6). That damages provision does not authorize the recovery of punitive damages. The statutory list of damages must be strictly construed because it is in derogation of the common law.
In the Sixth Circuit's Frontier decision the court addressed a "hard case" or "difficult circumstance" situation by describing the way the hard facts or difficult situation was applied in that case. There the court stated:
The typical recovery in Michigan wrongful death suits for damages such as the ones being sought by Blaty in this case is loss of society and companionship damages from the perspective of those who survived the deceased. Because of the unique circumstances of Parrot's [the 2-year old's] death, the district court held these damages amounted to zero. While this result does not seem wholly fair to Parrot's estate, it is the result dictated by current Michigan law. At the same time, the outlier of facts that this case presents does not necessitate that federal law must trump the Michigan law as being inconsistent with the Constitution and the laws of the United States.25 Similarly, in the instant case, it may turn out that no income and/or support or loss of society and companionship could have been expected from Plaintiff's decedent to his estranged daughters and thus, those damages may not prove to be available or, to be of great significance. Nevertheless, according to Plaintiff's complaint, Mr. Broder allegedly experienced conscious pain and suffering for some extended period of time prior to Plaintiff's decedent's death. Therefore, the possibility of compensation is not zero in this case but possibly some real, though at present indeterminable, number (if liability exists). Therefore, just as in the Frontier case, the possibility that not every type of damage allowed under Michigan's WDA can be recovered in a significant amount does not make Michigan's WDA, which was found to be not inconsistent with the Constitution and laws of the United States in 2006, suddenly inconsistent with the Constitution and laws of the United States in 2008 when referenced to exclude another type of damage claims (punitive damages) while expanding types of damages recoverable in this action
25 Frontier Insurance Co, 454 F3d at 603-604.
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to damages that would not have been available if Mr. Broder had survived. Plaintiff’s claim for punitive damages and/or attorney fees must be dismissed.
CONCLUSION Michigan’s Wrongful Death Act governs what damages are available to Plaintiff at trial. The WDA does not provide for punitive damages and/or attorney fees. Therefore, Plaintiff must be prohibited from requesting punitive damages and/or attorney fees at trial and be prohibited from arguing for same to the jury otherwise unfair prejudice to the Defendants will result. Plaintiff’s claim for punitive damages and/or attorney fees must be dismissed.

Dated: September 4, 2009.

By:__/s/ Randall A. Juip___________ Randall A. Juip (P58538) Attorneys for Defendant, Correctional Medical Services, Inc., Craig Hutchinson, M.D. and Bency Mathai, M.D.,only. 645 Griswold, Suite 3466 Detroit, MI 48226 Ph(313) 859-5900; fax(313)859-5959 (P58538)

PROOF OF SERVICE I hereby certify that on September 4, 2009, I presented the foregoing paper to the Clerk of the Court for filing and uploading to the ECF system, which will send notification of such filing to the attorneys of record listed herein and I hereby certify that I have mailed by US Postal Service the document to the involved non participants.
s/Randall A. Juip 645 Griswold, Suite 3466
Detroit, MI 48226 (313)859-5900
rajuip@mac.com P58538

13

 
 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

__________________________________________

STEVEN BRODER,

Plaintiff,

vs.

File No. 03-75106

Hon. Gerald E. Rosen

CORRECTIONAL MEDICAL SERVICES, INC.,

Mag. Judge Paul J. Komives

and its physician employees, namely:

AUBERTRO ANTONINI, JOHN AXELSON,

MALCOLM TRIMBLE, ________ BEY,

BENZI MATHAI, and RAY H. CLARK;

and employees and medical staff of the Michigan

Department of Corrections, namely:

PATRICIA L. CARUSO, director,

GEORGE PRAMSTALLER, medical director,

HENRY GRAYSON, warden,

and JAN EPPS, regional medical director;

in their individual and official capacities,

Defendants. _____________________________________________/

COMPLAINT AND JURY DEMAND Plaintiff Steven Broder, by his attorneys, the Michigan Clinical Law Program, for his complaint states as follows:
INTRODUCTION 1. This is a civil rights action for damages and injunctive relief against Michigan Department of Corrections’ (MDOC) employees and medical staff, and against MDOC’s managed health care provider, Correctional Medical Services, Inc. (CMS), and several of its physician employees. 2. Mr. Broder’s claims arise out of inadequate medical care provided to him while he was incarcerated at the Parnell Correctional Facility in Jackson, Michigan. 3. The heart of Mr. Broder’s complaint is that the defendants were deliberately indifferent to his serious medical needs by failing to timely diagnose and treat his laryngeal cancer, in violation of the Eighth Amendment to the United States Constitution, as actionable through 42 U.S.C. § 1983.

1

4. Mr. Broder’s complaint also includes the Michigan common law torts of gross negligence, reckless indifference, and willful and wanton misconduct as to all defendants, and the common law and statutory torts of negligence and medical malpractice (under MCL 600. 2912) as to those defendants who fall outside the governmental immunity statute (MCL 691. 1407(2)(c)).
PARTIES 5. Plaintiff STEVEN BRODER (MDOC # 226094) is in the custody of the MDOC. His minimum sentence was completed in January 1999 and his maximum sentence will be completed in October 2008. Mr. Broder is classified as a level one security risk. 6. Defendant PATRICIA L. CARUSO is the director of the Michigan Department of Corrections. In that capacity she is ultimately responsible for the policies, procedures, and staff training that govern the medical care provided to prisoners in the custody of the MDOC, and she can implement any injunctive relief ordered by the Court. 7. Defendant GEORGE PRAMSTALLER, D.O., is the MDOC’s chief medical officer. In that capacity at all relevant times he was and is directly responsible for the policies, procedures, and staff training that govern the medical care provided to prisoners in the custody of the MDOC, and he can implement any injunctive relief ordered by the Court. 8. Defendant HENRY GRAYSON is the warden of the Parnall Correctional Facility. At all relevant times he was and is directly responsible for the policies, procedures, and staff training that govern the medical care provided to prisoners at Parnall, and he can implement any injunctive relief ordered by the Court. 9. Defendant JAN EPPS, B.S.N., R.N., is the regional health care administrator. At all relevant times she was and is directly responsible for the policies, procedures, and staff training that govern the medical care provided to prisoners in the MDOC region that includes Parnall, and she can implement any injunctive relief ordered by the Court. 10. Defendant CORRECTIONAL MEDICAL SERVICES is a for-profit corporation licensed to do business in Michigan. At all relevant times CMS was and is obligated by contract to provide managed health care to MDOC prisoners generally and to Mr. Broder in particular. Upon information and belief, CMS helps to formulate the policies, procedures, and staff training related to medical care in MDOC facilities, and it implements those protocols. 11. Defendant AUDBERTO ANTONINI, M.D., is an agent or employee of CMS
2

who at all relevant times worked as a primary care physician in the prisons and who provided care to the plaintiff.
12. Defendant BENZI MATHAI, M.D., is an agent or employee of CMS who at all relevant times worked as a primary care physician in the prisons and who provided care to the plaintiff.
13. Defendant ______ BEY, M.D. [first name unknown], is an agent or employee of CMS who at all relevant times worked as a physician in the prisons and who provided care to the plaintiff.
14. Defendant MALCOLM TRIMBLE, M.D., is an agent or employee of CMS who at all relevant times worked as a physician in the prisons and who provided care to the plaintiff at Dwayne Waters Hospital in the Jackson Complex.
15. Defendant JOHN AXELSON, M.D., is an agent or employee of CMS who at all relevant times worked as a physician in the prisons and who provided care to the plaintiff at the Dwayne Waters Hospital in the Jackson Complex.
16. RAY H. CLARK, M.D., is an agent or employee of CMS who at all relevant times worked as a primary care physician in the prisons and who provided care to the plaintiff at the Dwayne Waters Hospital in the Jackson Complex.
JURISDICTION 17. Actions by the MDOC’s agents and CMS and its agents were carried out under color of state law. 18. This action is brought under 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. 19. Jurisdiction of this Court is based on 28 U.S.C. § 1331 and § 1343. 20. Venue is proper within the Eastern District of Michigan because a substantial part of the events or omissions giving rise to Mr. Broder’s claims occurred within this district, certain defendants reside within this district, and upon information and belief, all the defendants reside in the state of Michigan. 21. For the state-law-based claims, this Court has supplemental jurisdiction under 28 U.S.C. § 1367. 22. The plaintiff has exhausted his administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Copies of his grievances and corresponding
3

denials are attached as Exhibit 1. FACTUAL ALLEGATIONS
23. In the early spring of 2001, while in the custody of the MDOC, Mr. Broder began suffering from a sore throat and sinus problems.
24. On May 4, 2001, Mr. Broder presented at sick call with symptoms of a sore throat and sinus problems. Sinus medication was prescribed for approximately 10 days.
25. Mr. Broder’s sore throat did not improve as a result of that treatment. 26. Between May 4, 2001, and July 2001, Mr. Broder made several follow-up complaints and requests for treatment. 27. Mr. Broder received no treatment as a result of these complaints and requests. 28. On July 11, 2001, during Mr. Broder’s annual physical exam, he again requested treatment for his sore throat, which at that point had been continuous for 3-4 months. 29. At the July 11 physical, Mr. Broder presented with a long-term sore throat, difficulty in swallowing and talking, and significant weight loss. 30. Between July 11 and September 5, 2001, Mr. Broder continued to suffer from and to complain of the same symptoms. 31. He received no treatment as a result of these symptoms or complaints. 32. On September 5, 2001, Mr. Broder again presented at sick call with the same symptoms, but he was not treated. 33. On October 12, 2001, Dr. Auberto Antonini examined Mr. Broder, who presented with the same sore throat and difficulty swallowing and talking, and significant weight loss. 34. Dr. Antonini, suspecting laryngeal or esophageal cancer, recommended that Mr. Broder see an ear, nose, and throat (ENT) specialist and a gastroenterologist for immediate testing. 35. On October 19, 2001, Mr. Broder was examined at Dwayne Waters Hospital. He had chest x-rays taken, but due to broken equipment, no stomach or intestinal x-rays were taken. 36. On October 31, 2001, Mr. Broder was again taken to Dwayne Waters Hospital to complete his x-rays, but those x-rays were not done because the hospital was out of barium. 37. On November 4, 2001, the x-rays were completed. 38. On November 13, 2001, Mr. Broder was sent out of the prison to see an ENT specialist in the city of Jackson, Michigan.
4

39. On November 13, 2001, Dr. Ronald Kornak examined Mr. Broder and found a lesion on his larynx.
40. Dr. Kornack recommended that Mr. Broder undergo a microlaryngoscopy and vocal cord stripping promptly, to determine if the lesion was cancerous.
41. On November 19, 2001, Mr. Broder saw a gastroenterologist, Dr. ______ Sharma. 42. Dr. Sharma recommended that Mr. Broder undergo an endoscopy. 43. On November 29, 2001, Dr. Benzi Mathai signed an order delaying both Dr. Kornak’s recommended microlaryngoscopy and vocal cord stripping and Dr. Sharma’s recommended endoscopy. 44. In early December, Mr. Broder was notified of a pre-operative appointment scheduled for December 7, 2001. 45. That appointment was cancelled. 46. Mr. Broder’s endoscopy, scheduled for December 10, 2001, was also cancelled. 47. On January 2, 2002, Dr. Mathai signed another order delaying both Dr. Kornak’s recommended microlaryngoscopy and vocal cord stripping and Dr. Sharma’s recommended endoscopy. 48. On January 11, 2002, Dr. Kornak performed a microlaryngoscopy and vocal cord stripping on Mr. Broder at Foote Hospital in Jackson. 49. On January 14, 2002, lab tests confirmed that Mr. Broder had a malignant tumor on his larynx. 50. By that time, Mr. Broder had had a continuous sore throat for some 8-9 months; more than three months had passed since Dr. Antonini first suspected that Mr. Broder had cancer and referred him to specialists for testing; more than two months had passed since the ENT specialist had identified a lesion on Mr. Broder’s throat. 51. On January 14, 2002, Mr. Broder was specifically diagnosed with Stage I invasive and in-situ moderately differentiated keratinizing squamous carcinoma on his left vocal cord. 52. The seriousness of laryngeal cancer is measured by four stages: Stage I, Stage II, Stage III, and Stage IV. Stage I is the least serious; Stage IV is the most serious. 53. The physical effects of laryngeal cancer and treatment include pain, difficulty in eating, choking on secretions, trouble swallowing, weight loss, hoarseness, and loss of voice.
5

54. On January 22, 2002, Dr. Kornak informed Mr. Broder that he had Stage I laryngeal cancer.
55. With treatment, the statistical five-year survival rate for Stage I laryngeal cancer is approximately 90 percent.
56. Mr. Broder was told that he should start radiation therapy immediately. 57. On January 30, February 4, and February 5, 2002, Mr. Broder requested information concerning the start of his radiation treatment. The reply indicated that radiation treatment had been requested but had not yet been scheduled. 58. On February 5, 2002, Mr. Broder was told during an outside appointment with Dr. James Hayman that radiation treatment should begin immediately – within one or two weeks. 59. On February 25, 2002, Mr. Broder requested information concerning the start of his radiation treatment. The reply indicated that the treatment would begin the following week. 60. Mr. Broder did not get a CT treatment-planning scan until March 12, 2002. 61. Mr. Broder’s radiation treatment was scheduled to begin on March 19, 2003, but the radiation did not start that day. 62. On March 27, 2002, Mr. Broder had an MRI. 63. On March 27, 2002, Mr. Broder again requested information concerning the start of his radiation treatment; he was again told that he would have to wait. 64. By April 1, 2002, before Mr. Broder’s disease was treated in any way, his throat cancer had advanced from Stage I (the original January diagnosis) to Stage III T2N1. 65. Stage III T2N1 indicates a second site of cancer within the larynx (“T2”) and that the cancer had metastasized to a lymph node (“N1”). 66. With treatment, the statistical five-year survival rate of Stage III laryngeal cancer is 34 to 60 percent. 67. Because Mr. Broder’s cancer had metastasized to the lymph nodes, however, the statistical five-year survival rate could be reduced by as much as half (to 17 to 30 percent). 68. As a result of the delay in diagnosis and/or treatment, Mr. Broder had to undergo chemotherapy as well as radiation therapy. 69. On April 2, 2002, Mr. Broder finally began chemotherapy. 70. On April 3, 2003, Mr. Broder finally began daily radiation treatment. 71. Mr. Broder received no treatment for his disease until approximately 25 weeks
6

after Dr. Antonini suspected that Mr. Border had throat cancer, and 11 weeks after Dr. Kornak and the pathology lab confirmed that Mr. Broder had Stage I throat cancer.
72. But for the delays Mr. Border would not have needed chemotherapy, as Stage I throat cancer is treatable with radiation only.
73. Complications and side effects caused by Mr. Broder’s radiation and/or chemotherapy included nausea, dry mouth, irritated skin, loss of appetite, vomiting, diarrhea, anemia, suppressed immune system, and fatigue; the defendants failed to treat these side effects, particularly the dry mouth caused by the suppression of Mr. Broder’s salivary glands.
74. On April 3, 2003, a PEG tube was inserted in Mr. Broder’s abdomen to provide for nutrition, as Mr. Broder was having extreme difficulty swallowing and had lost considerable weight.
75. On April 4, 2002, Mr. Broder had one tooth pulled; the loss of this tooth caused the failure of a partial denture in August 2002.
76. Within one week of the PEG tube’s insertion, the area surrounding the PEG tube became infected, requiring an incision to drain and treat the infection.
77. On May 2, 2002, Mr. Broder began a second course of chemotherapy; his radiation treatment also continued.
78. On May 24, 2002, Mr. Broder’s daily radiation treatment ended. 79. On June 10, 2002, Mr. Broder began a third course of chemotherapy. 80. During the third course of chemotherapy, Mr. Broder’s PEG tube was removed. 81. During the third course of chemotherapy, Mr. Broder underwent a microlaryngoscopy and biopsy that revealed that his laryngeal cancer was reaching remission. 82. Throughout the period of Mr. Broder’s treatment he suffered from dry mouth, which resulted or will result in accelerated dental decay and possible loss of his teeth. 83. On November 5, 2002, Mr. Broder saw Dr. Kornak, who recommended another follow-up biopsy and vocal cord stripping promptly to check for a recurrence of Mr. Broder’s laryngeal cancer. 84. The biopsy and vocal cord stripping were not performed until April 17, 2003, more than five months after Dr. Kornak recommended these procedures. The biopsy was negative. 85. The defendants’ failure to timely diagnose and treat Mr. Broder’s cancer stemmed
7

in part from their failure to have in place policies and procedures to ensure prompt treatment of life-threatening disease.
86. Indeed, the defendants’ policies and procedures made the failure to timely diagnose and treat Mr. Broder’s cancer almost inevitable.
87. The defendants’ failure to timely diagnose and treat Mr. Broder’s cancer stemmed in part from their failure to train or supervise staff in a way that would ensure prompt and effective treatment of life-threatening disease.
88. Defendants Caruso, Pramstaller, Grayson, and Epps have a non-delegable duty to create customs, policies, and procedures to ensure timely and effective treatment of life-threatening disease, and to ensure that such treatment is in fact provided.
89. Defendants Caruso, Pramstaller, Grayson, and Epps have a non-delegable duty to train or supervise staff in a way that ensures timely and effective treatment of life-threatening disease, and to ensure that such treatment is in fact provided.
90. Defendants CMS and its employees have the same duty to implement policies and procedures to ensure timely and effective treatment of life-threatening disease, and to ensure that such treatment is in fact provided.
LEGAL CLAIMS 42 U.S.C. § 1983 91. The defendant doctors, acting under color of state law, demonstrated deliberate indifference to Mr. Broder’s serious medical needs, subjecting him to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, as actionable under 42 U.S.C. § 1983. 92. The defendant doctors demonstrated deliberate indifference by failing to diagnose Mr. Broder’s throat cancer within a reasonable time, by failing to confirm their suspicions (through laboratory tests) that he had cancer within a reasonable time, and, when Mr. Broder’s cancer was diagnosed, by failing to treat him within a reasonable time. 93. Even after treatment, the defendant doctors demonstrated deliberate indifference by failing to test Mr. Broder for recurrence of his cancer within a reasonable time. 94. The defendant doctors’ repeated delay in diagnosis and treatment allowed Mr. Broder’s cancer to progress from Stage I to Stage III T2N1, necessitating chemotherapy and insertion of a PEG tube, and causing other complications and side effects, including but not
8

limited to an increased risk of recurrence of his cancer. 95. The violation of Mr. Broder’s Eighth Amendment rights stemmed in part from
MDOC and CMS customs and policies that allowed or facilitated care that was deliberately indifferent, wanton, oppressive, or reckless.
96. Specifically, the defendants with the authority to create customs or policies failed to draft, promulgate, adopt, or enforce appropriate rules, regulations, procedures, orders, or protocols that could and should have prevented the acts of deliberate indifference committed against Mr. Broder, and that also could and should have prevented the injuries he suffered.
97. Alternatively, the defendants with the authority to create customs or policies promulgated or implemented policies that failed to flag his life-threatening disease and also failed to ensure that he got timely testing, diagnosis, care, and treatment.
98. The defendants with the authority to train staff failed to train them sufficient to prevent the provision of care that was deliberately indifferent to the plaintiff’s reasonable medical needs.
99. As a direct and proximate result of the defendants’ deliberate indifference, their customs and policies, and their failure to train, Mr. Broder was harmed, including but not limited to long-term sore throat, weight loss, loss of voice, difficulty swallowing, suppression of his salivary glands, and severe tooth decay; he was forced to undergo three courses of chemotherapy and insertion of a PEG tube; he suffered physical pain, mental anxiety, emotional anguish, and an increased risk that his cancer will recur.
100. At all relevant times the law was clearly established such that qualified immunity is no defense to the plaintiff’s constitutional claims.
GROSS NEGLIGENCE, RECKLESS INDIFFERENCE, AND WILLFUL AND WANTON MISCONDUCT
101. The defendants owed a duty to Mr. Broder to provide him with reasonable medical care.
102. The defendants’ repeated failures to provide timely testing, diagnosis, care, and treatment of Mr. Broder’s life-threatening disease, as described above, constitute gross negligence, reckless indifference, and willful and wanton misconduct under Michigan common law.
103. The defendants failed to draft, promulgate, adopt, or enforce appropriate rules, regulations, procedures, orders, and protocols that could and should have prevented the acts of
9

gross negligence, reckless indifference, and willful and wanton misconduct committed against Mr. Broder, and that also could and should have prevented the injuries that Mr. Broder suffered.
104. The defendants failed to train staff sufficient to prevent the acts of gross negligence, reckless indifference, and willful and wanton misconduct described above.
105. As a direct and proximate result of the defendants’ gross negligence, reckless indifference, and willful and wanton misconduct, Mr. Broder was harmed, including but not limited to long-term sore throat, weight loss, loss of voice, difficulty swallowing, suppression of his salivary glands, and the risk of severe tooth decay; and he was forced to undergo three courses of chemotherapy and insertion of a PEG tube; and suffered physical pain, mental anxiety, and emotional anguish; and increased risk that his cancer will recur.
NEGLIGENCE AND MEDICAL MALPRACTICE 106. The defendants owed a duty to Mr. Broder to provide him with reasonable medical care and with medical care consistent with the standard of care for the area where he lived. 107. The defendants’ repeated failures to provide timely testing, diagnosis, care, and treatment of Mr. Broder’s life-threatening disease, as described above, constitute negligence and medical malpractice under Michigan law. 108. The defendants failed to draft, promulgate, adopt, or enforce appropriate rules, regulations, policies, procedures, orders, and protocols that could and should have prevented the acts of negligence and medical malpractice committed against Mr. Broder and that also could and should have prevented the injuries that he suffered. 109. The defendants failed to train staff sufficient to prevent the acts of negligence and medical malpractice described above. 110. Mr. Broder has complied with the notice of claim and the affidavit of merit provisions of the Michigan medical malpractice statute (MCL 600.2912b). 111. The defendants violated the applicable standard of care by failing to timely diagnose and treat Mr. Broder’s Stage I cancer, causing Mr. Broder’s cancer to progress to Stage III T2N1; by failing to timely treat the side effects of Mr. Broder’s Stage III T2N1 cancer; and by failing to provide regular follow-up care and treatment for Mr. Broder. 112. The defendants further failed to provide reasonable care by delaying Mr. Broder’s access to physicians for diagnosis of his cancer and by delaying his prescribed treatment. 113. As a direct and proximate result of the defendants’ negligence and medical mal-
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practice, Mr. Broder was harmed, including but not limited to long-term sore throat, weight loss, loss of voice, difficulty swallowing, suppression of his salivary glands, and the risk of severe tooth decay; and he was forced to undergo three courses of chemotherapy and insertion of a PEG tube; and suffered physical pain, mental anxiety, and emotional anguish; and increased risk that his cancer will recur.
The Standard of Care 114. A reasonable general practitioner, internist, or health care provider would have made sure that Mr. Broder saw an ENT specialist within four to eight weeks after July 11, 2001, when Mr. Broder first presented with a long-term sore throat in conjunction with weight loss, difficulty swallowing, and loss of voice. 115. A reasonable general practitioner, internist, or health care provider would have made sure that Mr. Broder saw an ENT specialist within one to two weeks after October 12, 2001, when Dr. Antonini first suspected that Mr. Broder had throat or stomach cancer. 116. A reasonable general practitioner, internist, health care provider, or ENT specialist would have made sure that Mr. Broder had laboratory tests (to establish or eliminate a diagnosis of cancer) within four to eight weeks after October 12, 2001, when Dr. Antonini first suspected that Mr. Broder had throat or stomach cancer. 117. A reasonable general practitioner, internist, health care provider, or ENT specialist would have performed a microlaryngoscopy and vocal cord stripping (to establish or eliminate a diagnosis of cancer) within two to four weeks after November 13, 2001, when an ENT specialist identified a lesion on Mr. Broder’s larynx. 118. A reasonable general practitioner, internist, health care provider, or ENT specialist would have begun radiation therapy on Mr. Broder no later than one month after January 14, 2002, when lab tests confirmed the diagnosis of Mr. Broder’s Stage I invasive and in-situ moderately differentiated keratinizing squamous left vocal cord carcinoma. 119. A reasonable general practitioner, internist, health care provider, or ENT specialist would have prescribed medications necessary to counteract the suppression of Mr. Broder’s salivary glands to prevent damage to his teeth. 120. A reasonable general practitioner, internist, health care provider, or ENT specialist would have provided regular follow-up visits with an ENT specialist to monitor the condition of Mr. Broder’s larynx and to determine if his cancer had recurred.
11

121. A reasonable general practitioner, internist, health care provider, or ENT specialist would have performed a biopsy and microlaryngoscopy within two to three months after an ENT specialist recommended those tests on November 5, 2002, to determine if Mr. Broder’s cancer had recurred.
The Defendants’ Breaches of the Standard of Care 122. Mr. Broder was not referred to an ENT specialist until October 12, 2001, about 12 weeks after he presented with long-term sore throat in conjunction with significant weight loss, difficulty swallowing, and loss of voice; he should have been referred to an ENT specialist four to eight weeks after he presented with these symptoms, if his condition did not improve. 123. Mr. Broder did not see an ENT specialist until November 13, 2001; he should have seen an ENT specialist within two week of October 12, 2001, when Dr. Antonini first suspected cancer. 124. Surgical and laboratory tests were not performed (to establish or eliminate a diagnosis of cancer) until January 11 and January 14, 2002, some 13 weeks after Dr. Antonini suspected that Mr. Broder had throat or stomach cancer (on October 12, 2001); the tests should have been performed within four to eight weeks of the suspected diagnosis. 125. The surgical and laboratory tests were not performed until approximately eight weeks after an ENT specialist identified a lesion on Mr. Broder’s larynx (on November 13, 2001); the defendants should have ensured that a microlaryngoscopy and vocal cord stripping and laboratory tests were performed within two to four weeks of the ENT specialist’s identification of a lesion on Mr. Broder’s larynx. 126. Mr. Broder did not undergo any treatment of his throat cancer until April 2, 2002, approximately 11 weeks after it was diagnosed on January 14, 2002; the defendants should have ensured that Mr. Broder was treated within four weeks of the confirmed diagnosis. 127. Mr. Broder did not receive medications necessary to counteract the effects of his chemotherapy or the suppression of his salivary glands; the defendants should have regularly provided Mr. Broder with the necessary medications. 128. Mr. Broder did not and has not had regular follow-up visits with an ENT specialist to monitor the condition of his larynx and to determine if his cancer has recurred; the defendants should have provided Mr. Broder with regular follow-up visits with an ENT specialist. 129. Mr. Broder did not receive a post-treatment microlaryngoscopy and biopsy until
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April 17, 2003, more than five months after an ENT specialist recommended these procedures (on November 5, 2002) to check for a recurrence of Mr. Broder’s laryngeal cancer; the defendants should have made sure that these procedures were performed within two to three months of the ENT specialist’s recommendation for such tests.
DAMAGES PROXIMATELY CAUSED BY THE BREACH OF THE STANDARD OF CARE
130. The defendants’ failure to timely diagnose and treat Mr. Broder’s throat cancer caused him to suffer from an extended period of sore throat, weight loss, loss of voice, and pain and difficulty swallowing.
131. The defendants’ failure to timely refer Mr. Broder to an ENT specialist and then promptly to act on his diagnostic and treatment recommendations caused Mr. Broder’s cancer to progress from Stage I to Stage III T2N1, lowering his statistical life expectancy.
132. The defendants’ failures described above caused Mr. Broder to undergo three courses of chemotherapy, insertion of a PEG tube, infection, and dental work; these treatments were in addition to the radiation treatment that should alone have been sufficient to treat Mr. Broder’s Stage I throat cancer.
133. The defendants’ failure to replace Mr. Broder’s partial denture between August 2002 and October of 2003 prevented him from eating properly despite his need to do so to recover promptly from his chemotherapy and radiation treatments.
134. The defendants’ failure to timely provide medications necessary to counteract the effects of his treatment, including the suppression of his salivary glands, caused Mr. Broder to suffer side effects and significant dental problems.
135. The defendants’ breaches of the standard of care caused Mr. Broder to suffer physical pain, mental anxiety, and emotional anguish because of the complications and side effects of additional treatments needed to remedy his Stage III laryngeal cancer and because of the uncertainty caused by the delays in diagnosis, treatment, and follow-up.
RELIEF Wherefore, the plaintiff asks the Court to: a. Grant him compensatory, exemplary, and punitive damages commensurate with his
injuries; b. Declare that his constitutional and state law rights were violated by the defendants;
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c. Grant equitable relief to bar the defendants from acting with deliberate indifference to his medical needs, or from failing to provide him with reasonable medical care consistent with the standard of care, in the future;
d. Order the defendants to change their policies and procedures and training regimen so that similar violations will not and cannot recur as long as Mr. Broder remains in MDOC custody;
e. Award him his costs, interest from the date of filing, and reasonable attorneys’ fees as permitted by state or federal law; and
f. Grant such further relief as the Court sees fit.

JURY DEMAND The plaintiff requests a trial by jury of all issues so triable.

Respectfully submitted,
MICHIGAN CLINICAL LAW PROGRAM
/s/ Paul D. Reingold 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 (P-27594) pdr@umich.edu

Dated: December 17, 2003

Ali Ahmad and Brian Koch Student Attorneys

14

 
 Case 2:03-cv-75106-GER-PJK Document 87 Filed 12/20/2006 Page 1 of 34

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER, (#226094) Plaintiff
v.

No. 03-cv-75106 HONORABLE GERALD E. ROSEN

CORRECTIONAL MEDICAL SERVICES, INC., PATRICIA L. CARUSO, GEORGE PRAMSTALLER, HENRY GRAYSON, JAN EPP, in their individual and official capacities,

Defendants.

Paul D. Reingold (P27594) Michigan Clinical Law Program Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, Michigan 48109-1215 (734) 763-4319

Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Chapman and Associates, P.C. Attorney for Defendants CMS and Dr. Mathai 40950 N. Woodward Avenue, Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326

Kevin Thom (P36178) Assistant Attorney General Attorney for Defendants Caruso, Pramstaller, Corrections Division P. O. Box 30217 Lansing, Michigan 48909 (517) 335-7021

and Epp

DEFENDANTS' (PATRICIA CARUSO, GEORGE PRAMSTALLER, AND JAN EPP)1 MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

Defendants, Patricia Caruso, George Pramstaller, and Jan Epp, through Counsel and

pursuant to FRCP 12 (b) (1) and (6) and FRCP 12 (h) (3) bring this motion to dismiss all federal

claims for lack of jurisdiction under the Eleventh Amendment, failure to exhaust administrative

remedies under 42 USC 1997e (a), and for failure to state a claim upon which relief may be

1Defendant, Henry Grayson, who is represented by this Defense Counsel, submitted a stipulation and order to dismiss, with prejudice, signed by all parties' counsel. (USDC Dkt. Entry 76, filed September 27, 2006). Upon information and belief, no order has yet been entered dismissing Henry Grayson, but it is reasonable to anticipate he will be dismissed. Thus, this motion does not address arguments that would be applicable to a dismissal of Henry Grayson. If the Court does not intend to sign and enter an order dismissing Henry Grayson with prejudice and without costs or attorneys fees pursuant to the stipulation of the parties, please advise and Henry Grayson will file his own dispositive motion/s.
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Case 2:03-cv-75106-GER-PJK Document 87 Filed 12/20/2006 Page 2 of 34
granted.2 Alternatively, these Defendants bring a motion for summary judgment pursuant to
FRCP 56 (b) because there is no genuine issue of material fact on essential elements of Plaintiff's
case and the moving party is entitled to a judgment as a matter of law.
1. Co-Defendants, Bency Mathai, and Craig Hutchinson, filed a dispositive motion
and brief on November 30, 2006, which these Defendants join and adopt by reference pursuant
to FRCP 10 (c), as if fully set forth herein.
2. These Defendants, however, have additional legal defenses available to them that
were not covered by Co-Defendants' dispositive motion and brief, to include the following:
a) These Defendants enjoy Eleventh Amendment immunity from suit in
federal court for monetary damages in their "official capacity/ies";
b) In their individual capacity/ies, these Defendants were not personally
involved in any alleged wrongdoing, which is a prerequisite for liability under 42 USC
1983. Since these Defendants were not personally involved, Plaintiff cannot meet an
essential element of a 42 USC 1983 action and the federal claims must be dismissed.
These Defendants were not medical treaters. In fact, Plaintiff admitted at his deposition
that none of these Defendants were personally involved in any medical treatment of
Plaintiff and that he had not even met or talked to any of these Defendants about anything
at issue in this case;
2 If this Court dismisses the federal claims, it may then decline to exercise supplemental jurisdiction over the state law claims and dismiss those state law claims without prejudice. Where a district court has exercised jurisdiction over state law claims solely by virtue of supplemental jurisdiction and all federal claims are dismissed prior to trial, the state law claims should be dismissed without reaching the merits. Landefeld v Marion General Hospital, 994 F2d 1178, 1182 (CA 6 1993); Faughender v City of North Olmstead, 927 F2d 909, 917 (CA 6 1991); Coleman v Huff, No. 97-1916; 1998 WL 476226 at 1 (CA 6 1998). However, if the Court decides to exercise supplemental jurisdiction over the state law claims, then dismissal of those claims is also appropriate under FRCP 12 (b) (6) for failure to state a claim upon which relief may be granted and for failure to exhaust administrative remedies pursuant to MCL 600.5503 (1).
2

Case 2:03-cv-75106-GER-PJK Document 87 Filed 12/20/2006 Page 3 of 34
c) Plaintiff never filed any prisoner grievance against Defendant Patricia Caruso and the sole grievance he filed naming George Pramstaller and Jan Epp was untimely, which requires a dismissal of these three Defendants because Plaintiff has failed to exhaust administrative remedies under 42 USC 1997e (a);
d) Plaintiff’s federal claim is barred by qualified immunity since Defendant’s conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.3 e.) Defendant Patricia Caruso is not a health care professional and has never held herself out to be one. As a result, a state law medical malpractice action may not be brought against a person who is not a health care professional per MCL 600.2912 (1) and/or a "practitioner of medicine" under MCL 600.2912a. As a result, she cannot be sued in her individual capacity for monetary damages in a medical malpractice action and any attempt to sue her in an "official capacity" in this regard in federal court is precluded by Eleventh Amendment immunity. f.) Defendant Jan Epp is not a "practitioner of medicine" and cannot be sued for medical malpractice under MCL 600.2912a.4 Plaintiff admits that Jan Epp is only a nurse (First Amended Complaint, paragraph 9) and is not a medical doctor or physician; g.) George Pramstaller, in his "official capacity" is immune from any tort liability in federal court, including any alleged medical malpractice under MCL 600.2912, et seq, because of Eleventh Amendment immunity. In his individual capacity, he cannot be sued for medical malpractice, since he was not a treating physician;
3 Harlow v Fitzgerald, 457 US 800; 102 5 Ct 2727; 73 L Ed 2d 396 (1982). 4 Cox v Flint Board of Hospital Managers, 467 Mich 1, 18-22 (2002).
3

Case 2:03-cv-75106-GER-PJK Document 87 Filed 12/20/2006 Page 4 of 34

g.) Patricia Caruso, as Director of the MDOC, and George Pramstaller, as MDOC Medical

Director, are high appointed officials of state government and are immune from state tort liability

under MCL 691.1407 (5).

h.) Plaintiff’s pendent state tort claim against Defendant public employees is barred

by public employee immunity. MCL 691.1407 (2).

i.) Plaintiff does not have a single medical expert who will testify that any of these

three Defendants were deliberately indifferent to any serious medical need of the Plaintiff or that

they intended any harm to come to the Plaintiff and, therefore, Plaintiff cannot meet his burden

under the Eighth Amendment. Although Plaintiff alleges that MDOC policies and practices were

not adequate, none of Plaintiff's experts have even reviewed the MDOC's policies and practices

and Plaintiff's experts admitted at deposition that they do not know the particulars of the MDOC

contract with CMS and they are not familiar with the provision of medical services to prisoners

within the MDOC. Thus, they could give no valid expert opinions in any of these areas.

Wherefore, these Defendants request that Plaintiff's First Amended Complaint and this

entire case be dismissed without prejudice for failure to exhaust administrative remedies.

Alternatively, that this case be dismissed with prejudice on all other grounds and that these

Defendants be awarded their costs and attorneys fees, as allowed by law.

Respectfully submitted,

Michael A. Cox Attorney General

Dated: December 20, 2006

/s/ Kevin Thom (P36178) Assistant Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 thomk@michigan.gov P36178

4

Case 2:03-cv-75106-GER-PJK Document 87 Filed 12/20/2006 Page 5 of 34

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER, (#226094) Plaintiff
v.

No. 03-cv-75106 HONORABLE GERALD E. ROSEN

CORRECTIONAL MEDICAL SERVICES, INC., PATRICIA L. CARUSO, GEORGE PRAMSTALLER, HENRY GRAYSON, JAN EPP, in their individual and official capacities,

Defendants.

Paul D. Reingold (P27594) Michigan Clinical Law Program Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, Michigan 48109-1215 (734) 763-4319

Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Chapman and Associates, P.C. Attorney for Defendants CMS and Dr. Mathai 40950 N. Woodward Avenue, Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326

Kevin Thom (P36178) Assistant Attorney General Attorney for Defendants Caruso, Pramstaller and Epp Corrections Division P. O. Box 30217 Lansing, Michigan 48909 (517) 335-7021
DEFENDANTS' (PATRICIA CARUSO, GEORGE PRAMSTALLER, AND JAN EPP)5 BRIEF IN SUPPORT OF MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT
I. FACTS
Co-defense counsel for Dr. Bency Mathai and Dr. Craig Hutchinson filed a motion and

supporting brief to dismiss and/or for summary judgment (USDC Dkt. Entry 79), which these

Defendants incorporate by reference pursuant to FRCP 10 (c), as if fully set forth herein. These

5Defendant, Henry Grayson, who is represented by this defense counsel, submitted a stipulation and order to dismiss, with prejudice, signed by all parties' counsel. (USDC Dkt. Entry 76, filed September 27, 2006). Upon information and belief, no order has yet been entered dismissing Henry Grayson, but it is reasonable to anticipate he will be dismissed. Thus, this brief in support of the dispositive motion/s does not address arguments that would be applicable to a dismissal of Henry Grayson. If the Court does not intend to sign and enter an order dismissing Henry Grayson with prejudice and without costs or attorneys fees pursuant to the stipulation of the parties, please advise and Henry Grayson will file his own dispositive motion/s and brief in support.
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Defendants join in the motion filed by co-defense counsel and state that all of the arguments for dismissal in co-defense counsel's motion and brief apply equally as well to these Defendants, since Plaintiff cannot establish any Eighth Amendment violation against these Defendants for any alleged failure to adopt appropriate policies and procedures, without first establishing that the treating physicians were in violation. Hence, since the co-defendant treating physicians did not violate the Eighth Amendment, Plaintiff cannot establish that Patricia Caruso, George Pramstaller or Jan Epp did so either.
The key dates and treatment of Plaintiff are as stated in co-defendants' brief and there is no reason to be redundant and re-state them here. These Defendants simply want to reiterate that Plaintiff had laryngeal cancer that was properly diagnosed, properly treated, and that he has now been cancer free for over four and one-half years!6
There are, however, some facts that are applicable to legal defenses specific to Patricia Caruso, George Pramstaller, and Jan Epp, that need to be brought to the Court's attention.
A. Patricia Caruso It is undisputed that Plaintiff was cancer free as of July 22, 2002 per Dr's Tsien, Dr. Kornak, and Dr. Mathai and that Plaintiff's throat was pain free by September 2002 (See USDC Dkt. Entry 79, Co-Defendants' brief, pages 10-11 and attached exhibits thereto). It is also undisputed that Patricia Caruso did not even become the Director of the Michigan Department of
6 Regarding his current health, Plaintiff testified at his June 2, 2005 deposition, as follows: "Q All right. Now, you don't have cancer today, do you? A Not that I'm aware of. Q So whatever treatment you had for throat cancer, it has resolved the issue or the problem? It got rid of the cancer, in other words? A Yeah. It got rid of the cancer as far as I know." (See Exhibit 1 attached hereto, Plaintiff's Deposition, page 60, lines 17-22). Q All right. And the radiation therapy and the chemo therapy cured your cancer, along with the surgeries you had; is that correct? A Yeah. (Plaintiff's Deposition, page 69, lines 2-5)
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Corrections (MDOC) until some time in the year 2003.7 Plaintiff testified at his deposition, with
regards to Patricia Caruso, as follows:
"Q All right. Have you ever met Patricia Caruso?
A I've seen her. I've never personally met her, no. (Plaintiff's Deposition, page 35, lines 5-6)8
Q You've never been introduced to Patricia Caruso; is that correct.
A No.
Q You've never had any personal conversations either on the telephone or face-toface with Patricia Caruso; is that correct?
A Correct. (Plaintiff's Deposition, page 35, lines 13-19)
Q When did Patricia Caruso become the director, to your knowledge?
A I'm going to guess at 2003.
...,
Q And what was her job – Patricia Caruso's job before she became director of the Department of Corrections?
A If I'm not mistaken, she was original – a regional prison administrator or regional warden.
Q For what region?
A I believe it was region one, which I believe is up north.
Q Does that include the Parnall Correctional Facility?
A No.
Q So she would have been a regional prison administrator in a region that did not include the prison where you were housed, at Parnall?
7 See MDOC Michigan Annual Reports for 2001-2002 listing the directors in 2001-2002, including William Overton as Director in 2002 at website http://www.michigan.gov/corrections under "Publications and Information". Patricia Caruso was not the MDOC Director in 2001 or 2002. She did not become the MDOC Director until July 1, 2003. Plaintiff was already cured of cancer as of July 2002 (approximately one year before Patricia Caruso became the MDOC Director). The latest date complained of by Plaintiff in his First Amended Complaint is April 17, 2003 when a follow-up biopsy was performed indicating Plaintiff remained cancer free following his 2002 treatment. (USDC Dkt. Entry 49, First Amended Complaint, paragraph 80). Obviously, given these dates, Patricia Caruso could not have any personal involvement sufficient for liability under 42 USC 1983 in her "individual capacity" or her "official capacity". She also enjoys Eleventh Amendment immunity in her "official capacity". 8 Plaintiff's deposition is attached hereto as Exhibit 1.
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A Yes. Q Did you have any correspondence with Patricia Caruso while she was a regional
prison administrator? A No. I never knew she existed. Q So until she became director, you didn't know who she was? A Correct. (Plaintiff's Deposition, page 36, lines 1-22) Q Have you ever written to Patricia Caruso in a letter format or a kite where – for
any issue involved in this lawsuit that we're here on today? A Not that I'm aware of." (Plaintiff's Deposition, page 38, lines 16-19) Thus, it is very clear in this case, that Patricia Caruso had no personal involvement within the meaning of 42 USC 1983. She was not the MDOC Director during 2001-2002 and she had no personal involvement with Plaintiff regarding his laryngeal cancer. As a former Warden at the Kinross Correctional Facility in the Upper Peninsula and as a Regional Administrator in a region where Plaintiff was not housed, she was not the supervisor of either George Pramstaller or Jan Epp. Plaintiff has failed to establish any facts demonstrating that Patricia Caruso had any personal involvement in anything at issue in this case. Further, Patricia Caruso is not a health care professional, physician, or practitioner of medicine. As a result, she cannot be sued for "medical malpractice" under any state law theory. Further, just as co-defense counsel pointed out, Plaintiff failed to file an affidavit of merit with the First Amended Complaint as required by MCL 600.2912d and there was no notice of intent served on Patricia Caruso as required by MCL 600.2912b (1)-(6), which is a mandatory prerequisite for any medical malpractice action.
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Lastly, the MDOC Director is appointed by the Governor of Michigan9 and is a high
appointed official entitled to absolute immunity from state tort liability per MCL 691.1407 (5).
Thus, Plaintiff may not pursue state tort negligence law claims of any kind against Patricia
Caruso.
B. George Pramstaller
Defendant, Dr. George Pramstaller, was not a treating physician in this case. He had no
personal involvement in treating Plaintiff within the meaning of 42 USC 1983. Since he was not
a treating physician he cannot be sued under the state law medical malpractice statutes in his
individual capacity. In his "official capacity" he cannot be sued in federal court because of
Eleventh Amendment immunity. In order to establish George Pramstaller's lack of personal
involvement, it is helpful to review Plaintiff's own deposition testimony. Plaintiff testified, as
follows:
"Q Have you ever met George Pramstaller?
A No.
Q So you've never talked to him personally face-to-face or on the telephone?
A No.
...,
9 The Defendants request that this Court take judicial notice under FRE 201 that the MDOC is a department of state government for the State of Michigan. These facts are not subject to reasonable dispute because they are generally known within the territorial jurisdiction of this trial court and are capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Thus, this request meets the requirements of FRE 201 (b). See MCL 791.201, et seq, creating the MDOC as a department of state government within the State of Michigan with a Director appointed by the Governor.
MCL 791.231a (1) establishes a ten member Parole Board within the Michigan Department of Corrections (MDOC). MCL 791.231a (2) - (4) provide for the appointment and/or removal of the ten Parole Board members by the MDOC Director with salaries to be paid from state funds and established by the state legislature. Thus, the MDOC director is the head of the Department.
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Q Has George Pramstaller ever been a treating physician for any health problem that you've had?
A I'm not sure how – I'm not sure how "treating" is going to be defined.
Q Have you ever been – has he ever seen you as a patient?
A No." (Plaintiff's deposition, pages 38, lines 24-25 and page 39, lines 1-11)
"Q All right. Do you have any other correspondence that you addressed to George Pramstaller at all besides what's in [Deposition] Exhibit 5?10
A Just regarding – not regarding the cancer, no.
Q Well, what other correspondence do you have, if any?
A Regarding orthopedic shoes.
Q Okay. And that's the subject of a separate lawsuit?
A Correct.
Q And has nothing to do with the lawsuit we're here on; correct?
A Right." (Plaintiff's Deposition, page 41, lines 15-25)
"Q All right. Now, have you ever filed a prisoner grievance against George Pramstaller?
A I made a reference in some of the grievances, but never – I don't think I ever wrote one against him personally." (Plaintiff's Deposition, page 42, lines 8-11)
"Q Have you ever sent a medical kite to health care staff for which you were refused treatment?
A No.
Q So any time you sent a medical kite you were seen?
A Yes. Or responded to." (Plaintiff's Deposition, page 50, lines 8-12)
"Q So – just so I'm straight, you've never made a request to any custody staff or prison official to be seen by health care staff that was denied?
A No." (Plaintiff's Deposition, page 60, lines 12-15)
10 See Exhibit 2 attached hereto, which is a copy of George Pramstaller's answers to Plaintiff's Second Set of Interrogatories. Interrogatory 12 and the response thereto discuss the same correspondence that was Plaintiff's Deposition exhibit 5. George Pramstaller never received or responded to Plaintiff's correspondence. He was not personally involved.
Given that Plaintiff was properly diagnosed, properly treated, and cured of laryngeal cancer in this case, Plaintiff's September 23, 2001 correspondence and the response thereto have no real bearing on this case. See Plaintiff's deposition testimony quoted in footnote 2 above and Co-Defense Counsel's recitation of facts in his brief in support of his dispositive motion (USDC Dkt. Entry 79).
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Besides Plaintiff's own deposition testimony that he never met or talked to George
Pramstaller, that George Pramstaller was not his treating physician, that Plaintiff never exhausted
his administrative grievances against George Pramstaller, and that Plaintiff has never been
denied health care services, the Court will also note that there are no medical records of any kind
indicating that George Pramstaller was ever a treating physician of Plaintiff's.
C. Jan Epp
Like the other two named Defendants, Jan Epp was not personally involved in anything
at issue in this case within the meaning of 42 USC 1983 and Plaintiff never exhausted his
administrative grievances against her as required by 42 USC 1997e (a). In this regard, Plaintiff
testified at his deposition, as follows:
"Q So you would agree she has never personally treated you or seen you for any health care concern?
A Not that I'm aware of, no. Unless she saw me here for some reason, like I'm thinking she may have.
Q If she saw you, you would know that because you would have been present when she saw you; right?
A Well, it was the kite – this part I'm primarily thinking about the orthopedic shoes. She may have been over that matter, back around '99.
Q Okay. So you think she may have seen you for a reason that's unrelated to any issue in this lawsuit?
A Correct. Q But you're not sure she did see you? A No, I'm not sure. Q Do you know what Jan Epp's looks like? Could you describe her for us? A No. Q Have you ever talked to Jan Epps on the telephone? A No. Q Have you ever written any correspondence to her? A I believe so. Q When?
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A That I couldn't tell you. Q Did it have anything to do with this lawsuit? A I couldn't tell you that, either." (Plaintiff's Deposition, pages 44, lines 13-25 and
page 45, lines 1-12). D. Plaintiff's Experts do not support any legal claim against these Defendants
Besides Plaintiff's own deposition testimony, Plaintiff's experts in this case fail to
mention any of the Defendants, Patricia Caruso, George Pramstaller, and Jan Epp, by name or
indicate that any of these three breached any standard of care in the medical profession. Nor do
the expert reports state that any of these three Defendants were deliberately indifferent to any
serious medical need of Plaintiff's or formed any subjective intent to harm plaintiff under the
Eighth Amendment.
Plaintiff's expert, Dr. Brent Cutler, testified that neither Jan Epp nor George Pramstaller violated any Eighth Amendment standard, stating as follows11:
"Q Doctor, have you ever met Jan Epps? A No. Q Have you ever corresponded with her or Dr. Pramstaller? A No. Q Have you ever met Dr. Pramstaller? A No. Q Have you ever talked to either Jan Epps or Dr. Pramstaller on the
telephone? A No. ..., Q Do you know what Jan Epp's job title or job duties were? A No. Q I don't see anything in your report specifically relating to Jan Epps. Do
you have an opinion as – regarding Jan Epps and whether or not she did anything wrong in this case?
11 Relevant portions of Dr. Brent Cutler's deposition are attached hereto as Exhibit 3. 8

Case 2:03-cv-75106-GER-PJK Document 87 Filed 12/20/2006 Page 13 of 34
A What is her position? The answer is no. Q Okay. Yeah, she is not even mentioned in your report, so – Did you
review any Michigan Department of Corrections policies or procedures in preparing your report? A No. Q Are you aware that Jan Epps never personally provided any medical care to the Plaintiff Steven Broder and never treated him? A I never saw any reference to that in the records. Q Okay. A I guess I'm aware of it. Q So you don't have an opinion as to whether Jan Epps intentionally denied plaintiff Steven Broder any medical treatment for any serious medical condition in this case? A No, I do not. Q And you don't have an opinion as to whether or not she was deliberately indifferent to any serious medical need of the plaintiff Steven Broder? A No, I do not. (Brent Cutler Deposition, pages 85, line 1, to page 87, line19) Q What is Dr. Pramstaller's job title, if you know? A Medical director for Michigan Department of Corrections. Q Do you know what his job duties are? A Not specifically. Generally running the medical system for the Michigan Department of Corrections. Q Do you have an opinion whether Dr. George Pramstaller formed12 a subjective intent to harm the plaintiff Steven Broder by preventing or delaying any prescribed medical treatment for any serious medical need? A No, I don't think he did. (Brent Cutler Deposition, pages 88, lines 5-15) Plaintiff's own expert also testified that he doesn't even know whether any of the alleged
delays had any effect, whatsoever, on Plaintiff's ultimate outcome in this case. (See Exhibit 3
attached hereto, Brent Cutler Deposition, pages 90, lines 13-22). Thus, all of the alleged delays
that Plaintiff complains about in his First Amended Complaint amounted to nothing because
Plaintiff was diagnosed, treated, and cured and Plaintiff's own expert doesn't even know if there
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was any adverse effect on Plaintiff. All this case amounts to is a disagreement by Plaintiff with his doctors about what treatment he needed and when. Such disagreements do not amount to Eight Amendment violations. The bottom line is Plaintiff was cured and he has been cancer free for over four and one-half years.
E. Facts Regarding Exhaustion of Administrative Grievances Plaintiff admits that he never filed any prisoner grievance against any of these three Defendants (Patricia Caruso, George Pramstaller, and Jan Epp).13 Obviously, since Patricia Caruso did not become the MDOC Director until July 2003 and Plaintiff was completely cured of cancer before then, it is readily apparent why there would logically be no grievance against her.14 Although Plaintiff attached some prisoner grievances to his initial complaint filed in this lawsuit, none of those prisoner grievances name any of these three defendants, and none of the grievances are against any of these three defendants. Neither Patricia Caruso nor George Pramstaller ever responded to any of Plaintiff's prisoner grievances. They were not involved in the grievance process. The only Defendant who responded to one of Plaintiff's grievances was Jan Epp, which she did at the Step 2 appeal stage of the process. However, being assigned to respond to a prisoner grievance is not the same as being grieved. Thus, Plaintiff has failed to exhaust his administrative remedies against any of these three Defendants under 42 USC 1997e (a).
12 The deposition transcript contains the word "performed", which should be "formed" instead. 13 Plaintiff's Deposition, pages 42, line 8, to page 46, line 16. 14 It is obvious that Plaintiff simply named Patricia Caruso as a Defendant because at the time he initiated this lawsuit by filing the Complaint on December 19, 2003 (See USDC Dkt. Entry 1) she was the MDOC Director. However, Plaintiff forgot to take into consideration that Patricia Caruso was not the MDOC Director at any time relevant to this lawsuit.
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II. LEGAL ARGUMENTS
A. In their "official capacity", each Defendant enjoys Eleventh Amendment immunity from suit in federal court for monetary damages and/or injunctive and declaratory relief, regardless of whether the legal claims arise under federal or state law or both. The only exception to Eleventh Amendment immunity is for "prospective" injunctive and/or declaratory relief. Such relief is not appropriate in a case where Plaintiff can prove no violation of the Eighth Amendment or federal law. Additionally, Plaintiff is cured of cancer. Thus, any claimed need for prospective injunctive or declaratory relief is moot in this case. Plaintiff cannot establish any likelihood of success on the merits for purposes of injunctive relief when he cannot demonstrate that the cancer will re-occur in the future or that any alleged delays in the past had any adverse effect on him.___________________________________________
The Eleventh Amendment of the United States Constitution bars suits in federal court
against the State, its agencies, and officials sued in their official capacity unless this immunity
from suit is expressly waived by either the State or Congress, regardless of the nature of the
relief sought.15 Plaintiff's complaint is brought under 42 USC § 1983, and he specifically sued
these three Defendants in their official capacity/ies for damages as well as injunctive and
declaratory relief. The statute, 42 USC 1983, is not a waiver of the State’s Eleventh Amendment
15 Pennhurst State School and Hospital v Halderman, 465 US 89, 100, 104 S Ct 900, 79 L Ed 2d 67 (1984); Seminole Tribe of Florida v Florida, 517 US 44, 116 S Ct 1114, 134 L Ed 2d 252 (1996). The Eleventh Amendment provides jurisdictional immunity to state officials when the state is the real, substantial party in interest. Pennhurst State School and Hospital v Halderman, 465 US 89, 101 (1984). As when the state itself is named as the defendant, a suit against state officials that is, in fact, a suit against a state is barred regardless of whether it seeks damages or injunctive relief. Id., at 101-102. Thus, a suit against a state official, which is a disguised suit against the state itself, is prohibited by the Eleventh Amendment. In this case, Plaintiff attempts to seek both monetary damages and injunctive relief against state officials for alleged actions taken in their official capacity regarding MDOC policies and procedures. As this Court already noted in its Order dated September 22, 2004 (USDC Dkt. Entry 35, page 6, fn 3) "policy or custom" complaints under 42 USC 1983 may only be brought against local governments and municipalities, which do not enjoy Eleventh Amendment immunity. Monell v Dept of Social Services, 436 US 658, 689 at fn 54 (1978). Plaintiffs may not sue these three Defendants in their "individual capacity" for an alleged policy and custom violation, because only state officials acting in an official capacity and as an arm of the state make policy and custom and such a suit is against the state itself. Plaintiff may not avoid Eleventh Amendment immunity by couching the suit as an individual capacity claim. Individuals acting in their individual capacity do not make policy and customs for the state. Any claim seeking to change MDOC policy and custom, whether by injunction or a damage award, is, in effect, a suit against the state and precluded.
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jurisdictional immunity.16 Therefore, Plaintiff's complaint is barred by the Eleventh
Amendment, and must be dismissed.
The Eleventh Amendment to the United States Constitution bars suits against states and
their departments or agencies in federal court.17 The nature of the relief sought here does not
permit a different result. In Missouri v Fiske,18 the Supreme Court stated that the jurisdictional
bar applies regardless of the nature of the relief sought:
"Expressly applying to suits in equity as well as at law, the [Eleventh] Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State."
This was further explained in Dugan v Rank,19:
"The general rule is that a suit is against the sovereign if “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,” or if the effect of the judgment would be “to restrain the Government from acting, or to compel it to act.” (quoting Larson v Domestic & Foreign Commerce Corp., 337 US 682, 704 (1949)).
In Cory v White,20 the Court again declared that the Eleventh Amendment bars requests
for injunctive relief:
"It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought. The Eleventh Amendment reads: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . .” Thus, the Eleventh Amendment by its terms clearly applies to a suit seeking an injunction, a remedy available only from equity. To adopt the suggested rule, limiting the strictures of the Eleventh Amendment to a suit for a money judgment, would ignore the explicit language and contradict the very words of the Amendment itself. Edelman did not embrace, much less imply, any such proposition."21
16 Will v Dept. of State Police, 491 US 58, 109 S Ct 2304, 105 L E 2d 45 (1989); Quern v Jordan, 440 US 332, 341 (1979). 17 Alabama v Pugh, 438 US 781 (1978); Quern v Jordan, 440 US 332 (1979). 18 Missouri v Fiske, 290 US 18, 27 (1933). 19 Dugan v Rank, 372 US 609,620 (1963). 20 Cory v White, 457 US 85, 72 L Ed 2d 694 (1982). 21 Id at 90-91.
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Although the Supreme Court has recognized an exception for prospective injunctive relief to the Eleventh Amendment’s bar, that exception only applies in limited circumstances. Embodied in Edelman v Jordan,22 the exception allows a court to abrogate a state’s sovereign immunity for the sole purpose of ending continuing violations of federal law by governing future conduct. However, the Supreme Court has unequivocally stated that the theory underlying this abridgment of the state’s immunity is a “fiction,” the justification for which is not present in all cases requesting injunctive relief.23 The Sixth Circuit concurred in Banas v Dempsey,24 and Green v Mansour,25 stating: “As the fiction creates the exception to the Eleventh Amendment bar, it also limits the remedies that can be awarded.”
In particular, two requirements must be met before this Court can indulge the fiction and entertain a claim for injunctive relief in an official capacity suit:
1. An federal right must be at stake; and 2. The injunctive relief requested must be designed to end a continuing
violation of federal law. In Green,26 the Court specifically noted that while prospective injunctive relief “designed to end a continuing violation of federal law” is necessary to vindicate the federal interest, “compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment.”
22 Edelman v Jordan, 415 US 651 (1974). 23 Pennhurst State Sch. & Hosp. v Halderman, 465 US 89, 105, 79 L Ed 2d 67 (1984) 24 Banas v Dempsey, 742 F 2d 277, 287 (CA 6 1984), aff’d sub nom. 25 Green v Mansour, 474 US 64, 88 L Ed 2d 371 (1985). 26 Green, 474 US at 68.
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This case does not present a scenario of continuing violations of federal rights which
would justify invoking the fiction of Ex parte Young and Edelman to abrogate the State’s
sovereign immunity and to award prospective injunctive relief to govern future action.27 The
27 Likewise, retrospective declaratory relief is also barred by the Eleventh Amendment. The Federal Declaratory Judgment Act, 28 USC § 2201, is procedural in nature and neither supplies nor extends an independent ground for a federal court's jurisdiction, where none otherwise exists. See, e.g., Green v Mansour, 474 US 64 (1985); Hughes-Bechtol, Inc v West Virginia Bd. of Regents, 527 F Supp 1366 (SD Ohio, 1981), aff'd, 737 F2d 54 (CA 6 1984), cert den, 469 US 1018 (1984); and, Michigan Savings & Loan League v Francis, 683 F2d 957 (CA 6 1982). Furthermore, as aptly analyzed in Kozol v Lumbermens Mutual Casualty Co., 201 F Supp 718, 720 (D Mass, 1962):
"In enacting Section 2201, Congress had in mind providing a remedy to supply equitable relief where needed. I do not believe that it intended the Section to be available solely for the meaningless vindication of a claimed right, the establishment of which confers no economic benefit on the claimant and saddles the defendant with unnecessary expense, and likewise saddles innocent third parties with a great deal of totally unnecessary inconvenience."
In Green, the Supreme Court was confronted with a situation in which certain policies and regulations, implemented by the Michigan Department of Social Services, were alleged to be in violation of 42 USC § 1983. The Supreme Court "granted certiorari to resolve a conflict in the Circuits over whether federal courts may . . ., issue a declaratory judgment that state officials violated federal law in the past when there is no ongoing violation of federal law." Green, 474 U.S. at 67. Regarding the propriety of declaratory relief, the Sixth Circuit determined, as follows:
"Any declaratory judgment in these cases would concern only the past conduct of the state official, a finding, in retrospect, that certain activities of the state official had previously violated plaintiffs' rights under federal law. In our view, such a declaration would not be prospective in nature, and therefore an order based solely on a declaration regarding the past conduct of the state official would not be an order falling within the "prospective-compliance" exception necessary to bring it "on the Ex parte Young [209 US 123 (1908)] side of the Eleventh Amendment." Banas v Dempsey, 742 F2d 277, 288 (CA 6, 1984) (quoting Quern v Jordan, 44 US 332, 347 (1979). In upholding the Sixth Circuit's determination, the Green Court stated: "We have refused to extend the reasoning of Young, however, to claims for retrospective relief." Green, 474 US at 68. Furthermore, the Green Court noted that the reasoning in Quern was also inapplicable to abrogate the Michigan Department of Social Service's Eleventh Amendment immunity, concerning the request for declaratory relief:
"Justice Brennan's dissent contends that because the injunction and declaratory judgment in Quern implied past violations of federal law, declaratory judgments expressly adjudicating the question of past violations are routinely available. We think he is mistaken.
Thus, a declaratory judgment that respondent violated federal law in the past would have to stand on its own feet as an appropriate exercise of federal
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three Defendants (Patricia Caruso, George Pramstaller, and Jan Epp28) are entitled to a dismissal based on their Eleventh Amendment immunity. Plaintiff has failed to meet the requirements for the prospective injunctive relief exception because he has not established the violation of any federal right and therefore there can be no "continuing violation of federal law" present in this case. The only federal law claim raised by Plaintiff is an Eighth Amendment "cruel and unusual punishment" claim for alleged deliberate indifference to serious medical needs. The legal standard for an Eighth Amendment claim is as stated in co-defense counsel's brief (USDC Dkt. Entry 79, pages 17-20). Plaintiff cannot establish that any Defendant had the requisite subjective intent or state of mind to violate the Eighth Amendment. Plaintiff's claims of negligence and medical malpractice do not amount to an Eighth Amendment violation.29
In effect, Plaintiff merely has a disagreement with his treating physicians about the exercise of their medical judgment, which does not constitute an Eighth Amendment claim.30 Even Plaintiff's own expert, Dr. Brent Williams, testified that he does not know what effect, if any, the alleged delays Plaintiff complains about had on Plaintiff.
jurisdiction in this case. This it cannot do for the reasons we have previously stated." Green, 474 US at 74. 28 Jan Epp retired from the MDOC and is no longer an MDOC employee. See Jan Epp's answers to Plaintiff's Second Set of Interrogatories attached hereto as Exhibit 4. These answers are under oath as required by FRCP 33 and notarized. The answers, being under oath and notarized, have the same legal affect as a notarized affidavit. In interrogatory answers 7 and 12, Jan Epp states she is now retired from the MDOC. Thus, any claimed injunctive relief as to her would also be moot due to her retirement and because she has no ability to implement injunctive relief. Any requested injunctive relief would have no effect on Jan Epp. 29 Estelle v Gamble, 429 US 97, 105-106 (1976). Ribble v Lucky, 817 F Supp 653, 655 (ED Mich, 1993) (Even claims of "gross negligence" fail to state an Eighth Amendment claim). 30 West Lake v Lucas, 537 F2d 857, 860 at fn 5 (CA 6, 1976). Hicks v Frey, 992 F2d 1450, 1455 (CA 6, 1993). Youngberg v Romeo, 457 US 307, 321 (1982) (Courts typically do not intervene in questions of medical judgment).
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B. Neither the State, the MDOC, nor these Defendants in their "official capacity" are "persons" under 42 USC 1983.
Plaintiff has specifically indicated in the caption of the First Amended Complaint that he is suing these defendants in their official capacity. By suing defendants in their official capacity, plaintiff has, in effect, sued defendants' office, which is no different from a suit against the state itself.31 For purposes of 42 USC 1983, state officials sued in their "official capacity" are not persons within the statutory meaning of that term. They cannot be sued under 42 USC 1983 in their "official capacities". Will v Michigan Dep't of State Police, 491 US 58 (1989).
C. Where Defendants have not violated a clearly established federal statutory or constitutional right, they are entitled to dismissal based on qualified immunity.
The First Amended Complaint, paragraph 132, ask for various types of monetary relief, apparently against all named defendants, because the pleading fails to differentiate what relief is requested against what defendants. And the caption of the complaint indicates that all defendants are sued in both their individual and official capacities. In the event that Plaintiff seeks damages against them in their individual capacities, these three Defendants are entitled to summary judgment based on qualified immunity.
In 1982 the United State Supreme Court held that governmental officials or employees who are sued in their individual capacities “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”32 The Sixth Circuit thereafter said that "[t]he failure to so plead, precludes a plaintiff from proceeding further, even from engaging in discovery.”33
31 Will v Michigan Dep't of State Police, 491 US 58 (1989). 32Harlow v Fitzgerald, 457 US 800, 818 (1982). 33Dominique v Telb, 831 F2d 673, 676 (CA 6, 1987), citing Mitchell v Forsyth, 472 US 511 (1985), Gomez v Toledo, 446 US 635 (1980), and Harlow, 457 US at 818.
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In 1991, the Supreme Court held in Siegert v Gilley that prior to determining whether a right is clearly established and prior to entertaining summary judgment where qualified immunity has been asserted, a court must first determine “whether the plaintiff has asserted a violation of a constitutional right at all.”34
This holding was expanded and clarified in the Court's 2001 decision in Saucier v Katz. The Court enunciated a two-prong test, and also held that a district court must view the issue of qualified immunity in the specific context of the case. First, a court must consider whether the facts of the case, viewed in the light most favorable to the plaintiff, "show the officer's conduct violated a constitutional right."35 If so, the court must then decide "whether the right was clearly established."36 "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation that he confronted."37
The Court also reiterated that a ruling on qualified immunity “should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.”38 Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation” and is “an immunity from suit rather than a mere defense to liability.”39
A court’s first inquiry, taking the complaint in the light most favorable to the plaintiff, is whether the facts alleged show the defendant's conduct violated a constitutional right.40 If a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step “is to ask whether the right was clearly established” and “this inquiry, it is vital to note, must
34Siegert v Gilley, 500 US 226, 232 (1991). 35Saucier v Katz, 533 US 194, 201 (2001). 36Saucier v Katz, 533 US at 201. 37 Saucier v Katz, 533 US at 201. 38 Saucier v Katz, 533 US at 200. 39 Saucier v Katz, 533 US at 201. 40Saucier v Katz, 533 US at 201.
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be undertaken in light of the specific context of the case, not as a broad general proposition.”41 In this case, plaintiff has not alleged facts sufficient to satisfy the first prong of the Saucier test. As set forth throughout this brief, Plaintiff cannot establish any facts showing that the Defendants' conduct violated a constitutional right.42 Therefore, the Court should grant Defendants qualified immunity with respect to any putative claim for damages.
Further, as argued above, the law on this issue at the time of the events at issue here was in favor of Defendants' position that a disagreement with the medical doctors about the exercise of their medical judgment regarding acceptable time frames for treatment does not constitute a constitutional violation. Nor is mere negligence or even gross negligence a constitutional violation. Therefore, no clearly established law would have informed Defendants that, if they did not treat Plaintiff sooner, that they would be committing an 8th Amendment violation, especially when the diagnosis and treatment that occurred cured Plaintiff of cancer. Thus, Plaintiff fails to meet either provision of the two-part test for determining qualified immunity. Defendants are therefore entitled to a dismissal of any potential claim for damages, based on qualified immunity.
D. In their individual capacity, these Defendants had no personal involvement in any alleged wrongdoing and cannot be held liable under 42 USC 1983. The only claim that falls under 42 USC 1983 in this case is the 8th Amendment claim and there was no 8th Amendment violation.
In order to demonstrate liability under 42 USC § 1983, a plaintiff must first establish that each named defendant acted under color of state law and that their actions offended rights secured by the Constitutional and/or laws of the United States.43 Second, a plaintiff must make a
41Saucier v Katz, 533 US at 201. 42Saucier v Katz, 533 US at 201. 43 Baker v McCollan, 443 US 137 (1989).
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clear showing that each named Defendant was personally involved in the activity that forms the basis of the complaint.44
Allegations premised on respondeat superior liability are foreclosed in § 1983 actions.45
In Bellamy, the Sixth Circuit stated that in order to impose liability on supervisory personnel, a
Plaintiff must show more than having brought offending conduct to the attention of supervisory
officials:
There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved and knowingly acquiesced in the unconstitutional conduct of the offending subordinate. Bringing a complaint to the attention of supervisory officials is insufficient.46
And a supervisory official's awareness after the fact of alleged illegal conduct does not
provide a basis for imposition of damages under 42 USC § 1983. See Weaver v Toombs, 756 F
Supp 335, 337 (WD Mich, 1989). Merely being aware of a prisoner's complaint and failing to
take corrective action is insufficient to impose liability on supervisory personnel under § 1983.
Poe v Haydon, 853 F2d 418, 429 (CA 6, 1988), cert den, 488 US 1007 (1989). The supervisor
must have directly participated in the alleged wrongful conduct.
"[A] supervisory official's failure to, control, or train the offending individual is not actionable, unless the supervisor 'either encouraged the specific incident of misconduct or in some other way directly participated in it.'" Id.
Plaintiff has made no allegation or showing that Director Patricia Caruso participated in,
authorized, acquiesced in, or encouraged any unconstitutional conduct by any other Defendant.
In fact, Plaintiff must admit that Patricia Caruso did not even become the MDOC Director until
July 1, 2003, which fact is incontrovertible. Since Plaintiff cannot demonstrate that Patricia
44 See Rizzo v Goode, 423 US 362 (1976); Bellamy v Bradley, 729 F2d 416 (CA 6 1984) cert den, 469 US 845 (1984). 45 Monell v Dep't of Social Servs, 436 US 658 (1978); Bellamy, 729 F2d at 421. 46 Id.
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Caruso was ever the Director at any time relevant to this lawsuit, he cannot establish any
personal involvement on her part and any individual capacity suit against her must be dismissed.
Furthermore, Plaintiff has not shown that any of these three Defendants had "actual
knowledge of a breakdown in the proper working of the department" and failed to perform his own specific duties in the face of such actual knowledge.47 As Plaintiff's deposition testimony
makes clear, none of these three Defendants had any personal interaction with Plaintiff in 2001-
2002 over anything at issue in this case.
The only Defendants that ever reviewed and responded to any of Plaintiff's prisoner
grievances during the time at issue was Jan Epp, when she responded at Step 2 of the grievance
process. The mere denial of administrative grievances does not amount to active unconstitutional behavior.48 Liability under § 1983 must be based on active unconstitutional behavior and cannot be based upon "a mere failure to act."49 A prisoner's allegation that a
defendant improperly denied a grievance is not a claim of constitutional dimension because there is "no inherent constitutional right to an effective prison grievance procedure."50
Additionally, since Plaintiff cannot establish that any Eighth Amendment violation
occurred at all with regards to any treating physician in this case, he cannot successfully argue
that any of these three Defendants acquiesced in any unconstitutional behavior. Plaintiff must
first demonstrate unconstitutional behavior by a subordinate before he can argue supervisory
liability and he cannot prove either in this case.
47 See Hill v Marshall, 962 F2d 1209, 1213 (CA 6 1992). 48 See Shehee v Luttrell, 199 F3d 295, 300 (CA 6, 1999), cert den, 120 S Ct 2724 (2000); see also, Manney v Monroe, 151 F Supp 2d 976 (ND Ill, 2001) (Where the only evidence of a prison officials involvement in an alleged constitutional violation is a signature on the grievance report, it is not sufficient to show personal involvement.). 49 Shehee v Lutrell, 199 F 3d 295, 300 (CA 6 1999) (citing Salehpour v University of Tennessee, 159 F 3d 199, 206(CA 6 1998), cert den, 119 S Ct 1763, 143 L Ed 2d 793 (1999). 50 See Overholt v Unibase Data Entry, Inc., No. 98-3302, 2000 US App. LEXIS 14087 at *9, 2000 WL 799760, at *3 (CA 6 June 14, 2000) (copy attached); Lyle v Stahl, No. 97-2007, 1998 US App. LEXIS 18241 at*3, 1998 WL 476189, at *1 (CA 6 Aug. 3, 1998) (copy attached).
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Because Plaintiff has failed to show personal involvement sufficient to impose liability
under § 1983, Defendants Patricia Caruso, George Pramstaller, and Jan Epp are all entitled to
dismissal.
E. Plaintiff failed to exhaust administrative remedies under 42 USC 1997e (a) against any of these Defendants and this case should be dismissed.
Inmate Eighth Amendment claims must be grieved through the MDOC administrative
grievance procedure. 42 USC 1997e (a) states in this regard, as follows:
“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
The exhaustion of administrative remedies requirement applies to cases filed on or after
April 26, 1996.51, 52
The Supreme Court, in Porter v Nussle, 534 US 516, 524-525 (2002) discussed
Congress’ intent in enacting §1997e (a), as follows:
Beyond doubt, Congress enacted §1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officers’ time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review might “filter out some frivolous claims.” And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. (Emphasis added)
The Supreme Court also emphasized that “the PLRA’s exhaustion requirement applies to
all inmate suits about prison life, whether they involve general circumstances or particular
51 White v McGinnis, 131 F3d 593, 594 (CA 6 1997). 52 A limited exception applies to cases filed after April 26, 1996 when the events occurred before that date. See generally, Wolf v Moore, 199 F3d 324 (CA 6 1999); and Wyatt v Leonard, 193 F3d 876 (CA 6 1999). However, this exception does not apply in the case-at-bar because the events at issue in this lawsuit occurred in 2001-2002, which was well after the April 26, 1996 effective date of the Prison Litigation Reform Act and the amendments to 42 USC 1997e (a) making exhaustion of administrative remedies mandatory.
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episodes, and whether they allege excessive force or some other wrong”53 The Supreme Court
explained that a prior decision in Booth v Churner, 532 US 731 (2001), held that Congress has
enacted a statute that is an exception to the general rule that statutes be construed to favor non-
exhaustion in 42 USC §1983 cases:
In reaching its decision the [lower court] referred to its “obligation to construe statutory exceptions narrowly, in order to give full effect to the general rule of non-exhaustion in §1983. The [lower court] did not then have available to it our subsequently rendered decision in [Booth]. Booth held that §1997e(a) mandates initial recourse to the prison grievance process even when a prisoner seeks only money damages, a remedy not available in that process. In so ruling, we observed that “Congress… may well have thought that we were shortsighted” in failing adequately to recognize the utility of the administrative process to satisfy, reduce, or clarify prisoner grievances. While the canon on which the [lower court] relied may be dependable in other contexts, the PLRA establishes a different regime. For litigation with §1997e(a)’s compass, Congress has replaced the “general rule of non-exhaustion” with a general rule of exhaustion.54
The Sixth Circuit specifically addresses the exhaustion requirement under 42 USC
§1997e for prisoner civil rights cases in Brown v Toombs,55 stating:
"In light of the plain mandatory language of the statute regarding exhaustion of remedies, the legislative purpose underlying the plain language, and the sound policy on which it is based, this court will henceforth require that prisoners filing §1983 cases involving prison conditions must allege and show that they have exhausted all available state administrative remedies. A prisoner should attach to
53 Id. at 992. In Booth v Churner, 532 US 731 (2001) the Court held that the PLRA’s exhaustion requirement applies to Eighth Amendment claims even if the administrative process does not allow for monetary damages to be awarded. In Porter v Nussle, supra, the Court held that the PLRA exhaustion requirement applies to all Eighth Amendment claims including claims of excessive force and failure to protect claims. Porter v Nussle, supra, involved a claim by a prisoner that prison staff singled him out for a beating, i.e. an excessive force claim. The Supreme Court agreed with the Sixth Circuit, that even excessive force claims under the Eighth Amendment are subject to the PLRA’s exhaustion requirement. See, Freeman v Francis, 196 F3d 641 (CA 6 1999), which was cited by the Supreme Court in Porter v Nussle, supra. In Porter v Nussle, the Supreme Court discussed the different proofs necessary to make a case for excessive use of force under Hudson v McMillan, 503 US 1 (1992) and for failure to protect claims under Farmer v Brennan, 511 US 825 (1994) and found that the PLRA exhaustion requirements apply to both types of cases, as both types of cases involve “prison conditions” under 42 USC 1997e(a).
Thus, even Plaintiff’s Eighth Amendment claims in the First Amended Complaint, Count I, paragraphs 87-96, are subject to the exhaustion requirements of 42 USC 1997e (a). 54 Id. at 988 n. 4. 55 Brown v Toombs, 139 F3d 1102, 1104 (CA 6 1998) (per curiam), cert den 525 US 833.
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his §1983 complaint the administrative decision, if it is available, showing the administrative disposition of his complaint. Exhaustion applies only to cases filed on or after April 26, 1996 the effective date of the Prison Litigation Reform Act.56
District Courts should enforce the exhaustion requirement sua sponte if the issue is not raised by the defendant."
In Knuckles-El v Toombs,57 this issue was revisited. This Court stated:
"The complaint here does not meet the pleading requirements set forth in [Brown, 139 F.3d at 1104] and it was therefore properly dismissed. In Brown, we held that the statutory language in 42 U.S.C. §1997e(a) “no action shall be brought until all available administrative remedies are exhausted” - - “should be interpreted to mean precisely what is obviously intended - - that a federal court should not prematurely decide the merits of any such action.” Id. We held that in order to effectuate this language, a prisoner must plead his claims with specificity and show that they have been exhausted by attaching a copy of the applicable administrative dispositions to the complaint or, in the absence of written documentation, describe with specificity the administrative proceedings and its outcome."
An inmate may not bypass exhaustion by declining to file an administrative grievance in
a timely manner and thereafter claim the remedies are time-barred and thus not available.58
Even if MDOC officials are late in responding to a grievance, the inmate must still pursue the
process to its end, e.g. taking advantage of the MDOC process that allows the inmate to go to the
next step where a response is tardy.59 In Freeman v Francis,60 this Court stated “the
prisoner…may not exhaust administrative remedies during the pendency of a lawsuit.”61
(emphasis added).62 This Court held that the purported defendant must have been named in a
grievance that was fully exhausted.63 In the case at bar, Plaintiff has not named the Defendant,
56 See White v McGinnis, 131 F3d 593, 595 (CA 6 1997). 57 Knuckles-El v Toombs, 215 F3d 640, 642 (CA 6 2000), cert den 531 US 1040. 58 Wright v Morris, 111 F3d, 414, 417 n.3 (CA 6 1997) cert den 522 US 906. 59 Hartsfield v Vidor, 1999 F3d 305, 309 (CA 6 1999). 60 Freeman v Francis, 196 F3d 641 (CA 6 1999). 61 Id. at 645. 62 This Court created a very limited exception to this rule. In Curry v Scott, 249 F3d 493 (CA 6 2001), this Court held that where an inmate files a complaint, then exhausts the administrative remedies, then files an amended complaint that no dismissal is necessary. Id. at 501. This Court indicated this exception was being created due to unique circumstances that it did not expect to be repeated. Id. at 502 n. 3. 63 Curry v Scott, 249 F3d 493, 505 (CA 6 2001).
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Patricia Caruso, in ANY prisoner grievance asserting a violation of his Eighth Amendment rights. Plaintiff has clearly not exhausted administrative remedies against Patricia Caruso on any Eighth Amendment claim.
Before filing a lawsuit in federal court, a prisoner must exhaust all his administrative remedies as to each claim he brings against each defendant he intends to sue, and demonstrate exhaustion by attaching copies of the administrative proceedings and decisions to his complaint, or if not available, describing the proceedings with specificity.64 A prisoner must exhaust all his claims; a case cannot proceed where there is only partial exhaustion.65
As a result, the unexhausted Eighth Amendment claim must be dismissed even if this Court does not apply the "total exhaustion" rule that Defendants argue in Section II. G. of this brief is applicable.
F. Plaintiff's claims must all be dismissed because he failed to properly exhaust administrative remedies against each of these three Defendants (Caruso, Pramstaller, and Epp). The only prisoner grievance filed by Plaintiff that names either George Pramstaller and Jan Epp is Grievance No. SMT-02-070818-12D-2. This prisoner grievance was untimely. As a result, Woodford v Ngo, 548 US ___ (2006) requires dismissal of these claims.
This Court previously found that the only prisoner grievance filed by Plaintiff in this case that names Defendant George Pramstaller and Defendant Jan Epp is No. SMT-02-07-0818-12D-
64 Knuckles-El, et al., v Toombs, et al., 215 F3d 640, 642 (CA 6 2000); Curry v Scott, 249 F3d 493, 504-505 (CA 6 2001). 65 Smith v Federal Bureau of Prisons, 300 F3d 721 (CA 6 2002); Linder v Sundquist, No. 025303, 2002 U.S. App. LEXIS 19662 (CA 6 Sept. 18, 2002) (unpublished); Kemp v Jones, No. 01-2744, 2002 U.S. App. LEXIS 16058 (CA 6 Aug. 6, 2002) (unpublished).
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2.66 Prisoner Grievance No. SMT-02-07-0818-12D-2 on its face, lists the following dates:

Date of Incident:

March 2001 to April 200267

Date of attempt to informally resolve: Today's Date:

"Various dates" July 12, 200268

Date received at Step I:

July15, 2002

Plaintiff's prisoner grievance was late and failed to comply with the MDOC prisoner

grievance procedure because he filed it in July 2002, which is 16 months after the March 2001

date he is attempting to grieve and 2.5 months after the April 2002 date he attempts to grieve.

In Woodford v Ngo, 548 US ___ (June 22, 2006) the US Supreme Court held that a

prisoner who fails to comply with the prison's procedures for filing administrative grievances by

filing late and untimely grievances has also failed to comply with 42 USC 1997e (a) and his

lawsuit should be dismissed. The Supreme Court stated in this regard, as follows:

"[P]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.

66 Report and Recommendation (R & R) dated August 9, 2004, page 6. (USDC Dkt. Entry 21, page 6). The R & R states that the grievance referred to an attached list that included Pramstaller and Epp. 67 Per MDOC PD 03.02.130 (R) Plaintiff was required to attempt a resolution of this alleged incident within two business days, which he failed to do. The date he lists as his attempt to informally resolve this grievance is "various dates". However, Plaintiff failed to attempt a resolution of the grievance within two days of either the beginning date of March 2001 or within two days of the ending date of April 2002 listed on this grievance. Plaintiff's grievance, which attempts to cover a time period of more than one year from March 2001 to April 2002 is clearly improper, as is his attempt to list "various dates" as the date he attempted a resolution of the grievance. Plaintiff's grievance was intentionally vague and ambiguous and failed to comply with MDOC grievance procedures. 68 Per MDOC PD 03.02.130 (X) Plaintiff was required to file his Step 1 prisoner grievance within five days of his attempt to informally resolve the grievance. As we have seen, Plaintiff's attempt to informally resolve the grievance should have occurred no later than two days from April 2002, which means his Step 1 grievance was due no later than May 5, 2002 (this calculation generously allows five days from the end of April, since Plaintiff fails to give a day in April that he is grieving). Thus, Plaintiff's completion of a Step 1 grievance on July 12, 2002 was untimely and at least two months or eight weeks late.
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..., [T]he benefits of exhaustion can be realized only if the prison grievance system is given fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system's critical procedural rules. A prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system's procedural rules unless noncompliance carries a sanction, and under respondent's interpretation of the PLRA noncompliance carries no significant sanction. For example, a prisoner wishing to bypass available administrative remedies could simply file a late grievance without providing any reason for failing to file on time. If the prison then rejects the grievance as untimely, the prisoner could proceed directly to federal court. ..., We are confident that the PLRA did not create such a toothless scheme." As a result, the claims against all three Defendants should be dismissed because Plaintiff
failed to properly exhaust administrative remedies as required by 42 USC 1997e (a) by filing
untimely grievances. The US Supreme Court's ruling in Woodford v Ngo explicitly overrules the
Sixth Circuit's decision in Thomas v Woolum, 337 F3d 720, 723 (CA 6, 2003), which held that a
prisoner's case could not be dismissed because the underlying grievance was untimely. The
Sixth Circuit's holding in Thomas v Woolum is contrary to and conflicts with the US Supreme
Court's holding in Woodford v Ngo. Thomas v Woolum is no longer good law and has been
overruled by a higher court.
Woodford v Ngo must be applied retroactively to all pending cases because "when the
[US Supreme] Court applies a rule of federal law to the parties before it, the rule is the
controlling interpretation of federal law and must be given full retroactive effect in all cases still
open on direct review and to all events, regardless of whether such events predate or postdate our announcement of the rule."69
69 Harper v Virginia Dept of Taxation, 509 US 86, 97 (1993). See too US District Judge Victoria Roberts' December 6, 2006 decision in Michael Irving v T Kelly, USDC-ED of Michigan, Docket No. 2:06-cv-11569-dt (Dkt. Entry 38 in said case) (Copy of Order attached hereto as Exhibit 5).
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G. This entire Complaint should be dismissed based on the total exhaustion rule established in the Sixth Circuit US Court of Appeals. Thus, all claims, including unexhausted and exhausted claims70 should be dismissed.
If this Court determines that any of the claims raised by Plaintiff in this Complaint have
been properly exhausted pursuant to 42 USC 1997e (a) but that other claims have not been
properly exhausted, then these Defendants request that this Court apply the "total exhaustion"
rule and dismiss the entire lawsuit. The total exhaustion rule requires that any prisoner civil
rights lawsuit that contains a mixture of exhausted and unexhausted claims must be dismissed pursuant to 42 USC 1997e (a).71 These Defendants assert that the applicable rule in this Circuit
is the total exhaustion rule of Rinard v Luoma and Jones-Bey v Johnson.
Defendants recognize that the US Supreme Court has granted a writ of certiorari to
consider whether the total exhaustion rule or a partial exhaustion rule should be applied under 42 USC 1997e (a).72 Nevertheless, the Defendants want to ensure they have preserved the issue for
any later appeal and/or in the event that the Supreme Court upholds the total exhaustion rule the
Defendants will request a dismissal based on the Supreme Court's ruling.
It is already a matter of record that this Court held that this case included at least some
unexhausted claims when it was filed because this Court issued its Order of September 22, 2004 dismissing Defendant, CMS, for failure to exhaust under 42 USC 1997e (a).73 Thus, this is a
"mixed" complaint case. Likewise, if this Court agrees to dismiss all claims against Patricia
70 For purposes of this argument, the Defendants are assuming that the Court may find one or more claims have been exhausted. However, these Defendants are not conceding that any claims have been properly exhausted by arguing for the application of the total exhaustion rule. This argument is being included in this brief as an alternative argument, so that in the event this Court finds that a claim has been properly exhausted, a separate motion to dismiss will not have to be filed at a later date arguing for the application of the total exhaustion rule. 71 Rinard v Luoma, 440 F3d 361 (CA 6 2006); Jones-Bey v Johnson, 407 F3d 801, 807 (CA 6 2005); Chamberlain v Overton, 326 F Supp 2d 811, 816 (ED Mich, 2004); and Smeltzer v Hook, 235 F Supp 2d 736, 739-740 (WD Mich, 2002). 72 Williams v Overton, 126 S Ct 1463 (US March 6, 2006) (Dkt. No 05-7142) and Jones v Bock, 126 S Ct 1462 (US March 6, 2006) (Dkt. No. 05-7058). 73 USDC Dkt. Entry 35.
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Caruso because Plaintiff did not exhaust under 42 USC 1997e (a), then this case is a "mixed" complaint case involving both exhausted and unexhausted claims.
H. No viable medical malpractice claim exists against any of these three Defendants under MCL 600.2912a, et seq, and Count III of the First Amended Complaint, paragraphs 102-132 because none of them were "practicing medicine".
Defendant Patricia Caruso is not a health care professional and has never held herself out to be one. As a result, by express terms of the applicable statute, a state law medical malpractice action may not be brought against a person who is not a health care professional per MCL 600.2912 (1) and/or a "practitioner of medicine" under MCL 600.2912a.74 As a result, she cannot be sued in her individual capacity for monetary damages in a medical malpractice action and any attempt to sue her in an "official capacity" in this regard in federal court is precluded by Eleventh Amendment immunity. As this Court has already seen, Patricia Caruso did not become the MDOC Director until July 1, 2003 and she had no personal involvement with Plaintiff, i.e. it is impossible to logically claim she was involved in any alleged medical malpractice.
Likewise, Defendant Jan Epp is not a "practitioner of medicine" and cannot be sued for medical malpractice under MCL 600.2912a. Plaintiff admits that Jan Epp is only a nurse (First Amended Complaint, paragraph 9) and is not a medical doctor or physician. In Cox v Flint Board of Hospital Managers, 467 Mich 1, 18-22 (2002) the Court held that nurses cannot be sued for medical malpractice under MCL 600.2912a. Thus, as a matter of law, this claim must be dismissed as it relates to Jan Epp. Further, Jan Epp never treated Plaintiff.
Lastly, George Pramstaller, although he is a licensed medical doctor, never treated Plaintiff. George Pramstaller cannot be liable for medical malpractice in his individual capacity when he was not engaged in the "practice of medicine" as it relates to Plaintiff. Plaintiff has
74 There is no genuine issue of material fact regarding Patricia Caruso's status. All parties agree she is not a health care professional, a physician, or medical treater.
28

Case 2:03-cv-75106-GER-PJK Document 87 Filed 12/20/2006 Page 33 of 34 never met or talked to George Pramstaller and George Pramstaller never reviewed or responded to any prisoner grievance filed by Plaintiff.
If Plaintiff attempts to argue that he is suing any of these three Defendants for medical malpractice for not having policies or customs of any kind in place, then Plaintiff is attempting to sue them in their "official capacity" as policy makers, which is precluded in federal court by the Eleventh Amendment. Further, Patricia Caruso cannot be sued under such an argument when she was not the Director at the time in question.
I. As high appointed officials of state government, Patricia Caruso and George Pramstaller enjoy absolute immunity from state tort liability under MCL 691.1407 (5).
Patricia Caruso, as Director of the MDOC, and George Pramstaller, as MDOC Medical Director, are high appointed officials of state government and are immune from state tort liability under MCL 691.1407 (5).75
75 Markis v City of Grosse Pointe Park, 180 Mich App 545 (1989). Walkowski v Macomb County Sheriff, 64 Mich App 460 (1975). Harrison v Director of Dept of Corrections, 194 Mich App 446 (1992), app den 441 Mich 887 (1992).
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III. CONCLUSION AND RELIEF REQUESTED

Wherefore, Defendants request that this case be dismissed with prejudice as to the Eighth

Amendment claim for all the reasons stated in this brief. Defendants assert that once the federal claim is dismissed that this court should decline jurisdiction over the state law claims.76

However, if this Court decides the state law claims, those claims should also be dismissed with

prejudice for all the reasons stated in this brief, which includes the reasons stated in co-

defendants brief per FRCP 10 (c). Defendants also request that they be awarded all costs and

attorneys fees allowed by law.

Respectfully submitted,

Dated: December 20, 2006

/s/ Kevin Thom (P36178) Assistant Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 thomk@michigan.gov P36178

KTCases/2004001847A/Brief SJ

CERTIFICATE OF SERVICE: I certify that on December 20, 2006, I electronically filed the foregoing papers with the Clerk of the Court using the ECF system which will provide copies to counsel of record.
s/ Kevin Thom (P36178) Assistant Attorney General PO Box 30217 Lansing, MI 48909 Phone: (517) 335-7021 Email: thomk@michigan.gov P36178

76 Where a district court has exercised jurisdiction over state law claims solely by virtue of supplemental jurisdiction and all federal claims are dismissed prior to trial, the state law claims should be dismissed without reaching the merits. Landefeld v Marion General Hospital, 994 F2d 1178, 1182 (CA6 1993); Faughender v City of North Olmstead, 927 F2d 909, 917 (CA 6 1991); Coleman v Huff, No. 97-1916; 1998 WL 476226 at 1 (CA 6 1998).
30

 
 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

____________________________________

STEVEN BRODER,

Plaintiff,

vs.

File No. 03-CV-75106

CORRECTIONAL MEDICAL SERVICES, INC., et al.,

Hon. Marianne O. Battani Mag. Judge Paul J. Komives

Defendants. ____________________________________

PLAINTIFF’S MOTION AND BRIEF TO REVISIT THE DISMISSAL OF THE CORPORATE DEFENDANT CMS IN LIGHT OF NEW CASE LAW

The plaintiff Steven Broder, by counsel, moves the Court to re-instate dismissed

defendant Correctional Medical Services, Inc., (CMS) due to a new U.S. Supreme Court

case that changes the controlling law.

Pursuant to Fed. R. Civ. P. 6(b)(1) and Local Rule 7.1, the plaintiff’s counsel sent

a draft of the proposed motion to CMS’s counsel, who refused to stipulate to the motion.

The motion is supported by the short brief below.

Respectfully submitted,

MICHIGAN CLINICAL LAW PROGRAM

Dated: September 21, 2007

s/ Paul D. Reingold 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu – P-27594

1

PLAINTIFFS’ BRIEF IN SUPPORT Issues Presented:
1. Should the Court reinstate the dismissed corporate defendant Correctional Medical Services, Inc., (CMS) because of intervening U.S. Supreme Court case law?
2. Should the Court reinstate CMS because no case law supports the earlier finding that CMS is entitled to Eleventh Amendment immunity? Primary Authority:
1. Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910 (2007) 2. Kovats v. Rutgers State University, 822 F.2d 1303 (3d Cir. 1987)
Calhoun v. Ramsey, 408 F.3d 375 (7th Cir. 2005) Hartman v. CMS, Inc., 960 F. Supp. 1577 (M.D. Fl. 1996)
Facts and Proceedings to Date Regarding CMS Plaintiff Steven Broder brought suit under 42 U.S.C. § 1983, alleging that various defendants failed to timely diagnose and treat his throat cancer in violation of his Eighth Amendment right to be free from cruel and unusual punishment and in violation of state medical malpractice law. Mr. Broder originally named CMS, Inc., as the lead defendant in his lawsuit. CMS moved to dismiss, arguing a failure to exhaust – specifically that Mr. Broder had failed to name it as a separate entity in any of his four grievances. See CMS Motion, R. 8 (2/24/04). The Magistrate Judge agreed with CMS as to grievances #1, #3, and #4, but said that Mr. Broder had made sufficient reference to CMS in grievance #2. See R&R on CMS Motion to Dismiss, R. 21, at 8-9 and 16-17 (8/9/04). Following objections to the R&R, Judge Gerald Rosen disagreed with the Magistrate Judge, holding that
2

Mr. Broder had failed to name CMS with sufficient specificity even as to grievance #2. Judge Rosen also held – sua sponte, without briefing by either side – that CMS was not amenable to suit under § 1983 because it had Eleventh Amendment immunity. See Opinion and Order (adopting in part and modifying in part the R&R and dismissing the corporate defendant CMS) (Rosen, J.), R. 35, at 4-7 (9/9/04). Mr. Broder now asks the Court to revisit the dismissal of CMS in light of changes in the law.
1. Facts Regarding Exhaustion: The Grievances Mr. Broder filed four separate MDOC grievances challenging the delays in his diagnosis and treatment and the quality of his care and aftercare. Grievance #1: Mr. Broder filed his first grievance for inadequate treatment on November 3, 2001. The grievance described his difficulty in swallowing, his weight loss, his persistent sore throat, and his fears for his health on account of the delays in getting tested. Mr. Broder asked why evaluations by ENT and GI specialists, which he was told would be scheduled, had not yet occurred. He concluded the Step 1 grievance by stating: I have lost an additional 10 pounds (approximate) and have continual excruciating pain. I simply write this grievance to document the situation and attempt to eliminate any further delays in my medical treatment. The MDOC answered the grievance late, by which time Mr. Broder had already filed his Step II appeal. The Step II response was also late. It said, “We are currently waiting for the appointment dates for the requested procedures.” By then Mr. Broder had already filed his appeal to Step III, citing continual pain, difficulty breathing and swallowing, and further weight loss. After waiting more than a month, on January 27, 2002,
3

Mr. Broder mailed a letter to the MDOC director’s office in Lansing inquiring about his Step III appeal and attaching a second copy of it. Mr. Broder never got a response ether to his appeal or to his follow-up letter.
Grievance #2: Mr. Broder filed his second grievance on July 12, 2002, after having spent parts of April, May, and June 2002 in the hospital for chemotherapy and radiation. He complained that the late diagnosis and treatment of his cancer were in violation of MDOC policy. He said that his grievance was intended to run against “any and all individuals or organizations involved in the diagnosis, treatment, [or] referral of my condition.” Mr. Broder attached to the grievance a list of the people and/or agencies who, to the best of his knowledge, had in any way figured in his diagnosis, treatment, or aftercare to that point. The list included 37 named individuals plus “any and all relevant CMS personnel” and “any and all relevant MDOC personnel.” See Grievance #2.
Once again the MDOC response was late and Mr. Broder filed a Step II appeal on August 7, 2002. The appeal receipt said that he would receive a response no later than August 30, 2002, but he did not get a Step II response until December 5, 2002. The Step II response said, “You were interviewed and a response was provided to you in a timely manner.” In fact, the Step I response was nine days late and the Step II response was 95 days late. Because the Step II response was so late, Mr. Broder had already filed a Step III appeal, stating that his “medical treatment and diagnosis [were] neither ‘timely’ [nor] provided in a ‘humane’ way.” As with the first grievance, Mr. Broder never received a response to his Step III appeal.
4

Grievance #3: Mr. Broder filed his third grievance on March 1, 2003. This grievance asked why his ENT specialist’s instructions of October 2002 (that Mr. Broder have a follow-up test to ensure that his cancer was in remission) had not yet been followed. On March 13, 2003, Mr. Broder met with an RN supervisor who then wrote a memorandum to the grievance coordinator confirming that Mr. Broder’s requested procedures had been approved but that no appointment had yet been scheduled (despite the five-month delay).
Mr. Broder filed a Step II appeal because he still did not have a scheduled appointment and the Step I response failed to address why a doctor’s request for follow-up tests had taken five months to schedule. On May 5, 2003, Mr. Broder received a late response stating that “the specialist may have told you it would only be 2 weeks, however, the process that is required is for this request to go to CMS first for denial or approval.” By then Mr. Broder had already filed a timely Step III appeal. Six months later, on November 7, 2003, Mr. Broder got a Step III response denying his grievance.
Grievance#4: Mr. Broder’s filed his fourth grievance on April 22, 2003 (while the third grievance was awaiting a Step II response). The fourth grievance focused on posttreatment issues, specifically that a side effect of the chemotherapy (loss of the ability to salivate) could lead to serious tooth decay. Mr. Broder wanted to know why it took 11 months for him to get the drug Salagen to help with his salivation problems. Also, Mr. Broder wrote that he was still awaiting the follow-up visits with specialists that were the subject of his third grievance.
Mr. Broder’s Step I grievance was received on April 24, 2003. He was told he
5

would get a Step I response no later than May 15, 2003. The Step I response, however, did not arrive until July 21, 2003. The response said that Mr. Broder should bring up his issues with his ENT specialist at his next scheduled appointment. Due to the three-month delay in receiving a Step I response, Mr. Broder filed a Step II appeal on May 20, 2003. The Step II response acknowledged the severity of his dental problems and set up a visit with the dental director to determine a treatment plan. The response did not address why Mr. Broder had not been prescribed Salagen throughout his treatment or why his followup radiation oncology visit had not been scheduled. Mr. Broder duly filed his Step III appeal on November 18, 2003. It was denied five months later.
ARGUMENT I. Jones v. Bock Changed the Legal Standard for Exhaustion When Judge Rosen considered CMS’s motion to dismiss in 2004, the Sixth Circuit had a Draconian set of rules about what prisoner-plaintiffs must do in order to meet the exhaustion requirements of the PLRA. See e.g., Knuckles-El v. Toombs, 215 F.3d 640 (6th Cir. 2000) (requiring the plaintiff to prove exhaustion with specificity); Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998) (same); Burton v. Jones, 321 F. 3d 569 (6th Cir. 2003) (requiring the plaintiff to name in his initial grievance every individual whom he later sued); Curry v. Scott, 249 F.3d 493 (6th Cir. 2001) (same); Jones-Bey v. Johnson, 407 F.3d 801 (6th Cir. 2005) (requiring that the plaintiff must show “total exhaustion,” i.e., that no part of the case could go forward if any claim was unexhausted).1
1 Although Jones-Bey was a 2005 case and thus came down after Judge Rosen decided CMS’s motion to dismiss, the case re-affirmed what panels of the Sixth Circuit had already been doing in unpublished
6

In Jones v. Bock, __ U.S. __, 127 S.Ct. 910 (2007), the U.S. Supreme Court abrogated all of these cases. In a rare unanimous opinion, the Court held (1) that failure to exhaust is an affirmative defense, so that prisoners have no “heightened” pleading requirement to prove exhaustion; (2) that the PLRA does not require a prisoner to name every defendant in the initial grievance2 (noting that Michigan’s grievance process had no such requirement either); and (3) that the PLRA also does not require “total exhaustion” of all claims in order for unexhausted claims to go forward.
In this case there was no dispute that Mr. Broder had appealed all his grievances to Step III so that procedurally exhaustion was complete. See R&R, R. 21, at 8-10 (8/9/04). The only exhaustion issue left open was whether or not the Eighth Amendment claim could run against the corporate defendant CMS where Mr. Broder either had not named CMS at all (grievances #1, #3, and #4) or had not named CMS specifically as a corporate entity (grievance #2). Judge Rosen found that naming CMS as a separate corporate entity was required as to each and every grievance, and therefore he dismissed CMS.
Jones v. Bock completely changes this analysis. Under Jones, Mr. Broder need not have named CMS at all. As long as reasonable prison officials or medical staffers reading the grievances would have understood the general nature of Mr. Broder’s complaints, that is all that is required. Id.
cases on the issue of total exhaustion. 2 The Court cited Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004), saying: “We are mindful that
the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial litigation.”
7

Mr. Broder’s first grievance was as clear as it could be, saying, in effect: “My doc-
tor has told me that I may have cancer and that I need to be tested, but that was weeks ago
and I have heard nothing since: what is the hold-up?” He could not possibly have known
(1) who was responsible for getting the appointments scheduled; (2) what MDOC/CMS
policies might have contributed to the delays; (3) what legal causes of action might even-
tually accrue if the delays caused him harm; or (4) which MDOC/CMS employees/agents
would have to be named as defendants in order for any legal causes of action to proceed.
His other grievances were equally specific, complaining about the failure of his medical
providers to ensure timely testing, diagnosis, treatment, and aftercare.
Jones makes clear that prisoners do not need law degrees (or clairvoyance) when they file a Step I grievance in order to later sue the appropriate defendants.3 Mr. Broder
did everything we would expect a responsible prisoner to do. He filed a series of four
grievances, each one laying out with specificity the precise lack of care of which he com-
plained. With the second grievance he included a list of every person whose name had
appeared on his medical records to that point, and he made clear that he intended his com-
plaint to run against all of them, plus “any other treating personnel, supervisory
personnel, and any and all other individuals or organizations involved in the diagnosis,
3
In Brown v. Sikes, 212 F.3d 1205 (11th Cir. 2000), the court listed no fewer than seven purposes behind the exhaustion requirement of § 1997e, and held that it would not serve any of those purposes to require a prisoner to include in his grievance information that he did not know, or could not reasonably be expected to know, when he filed the grievance. See also Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002) (holding that when state grievance rules do not prescribe the contents of a grievance or the necessary degree of factual particularity, a grievant need only “object intelligently to some asserted shortcoming” and need not “lay out facts, articulate legal theories, or demand particular relief”). Even the preJones Sixth Circuit agreed that “an inmate need not identify each officer by name when the identities of the particular officers are unknown.” See Burton v. Jones, 321 F.3d at 575.
8

treatment, or referral of my condition.” Under Jones v. Bock, that is more than a prisoner needs to do.
Because Judge Rosen dismissed the case pursuant to cases that are no longer good law, the Court should now correct that error and reinstate the corporate defendant CMS.
II. CMS Does Not Have Eleventh Amendment Immunity Judge Rosen also ruled sua sponte that CMS must be dismissed because it has Eleventh Amendment immunity.4 Order of 9/24/04, supra, at 4-7. In doing so, Judge Rosen cited no other case from any jurisdiction in which an entity providing contract services to a state had been granted Eleventh Amendment immunity. As far as the plaintiff’s counsel is aware, Judge Rosen cited no other case because there was none to cite. Id.5 At bottom Judge Rosen confused black-letter civil rights law by concluding that any entity which is sufficiently aligned with the state so as to be suable under § 1983 is necessarily also sufficiently aligned with the state to have Eleventh Amendment immunity. To the contrary, a host of cases hold that the two issues are judged by different legal standards, for very good reason. To be suable under § 1983, all that is required is that an entity (or person) be suffi-
4 The plaintiff did not seek reconsideration at the time because the Court’s alternate ground for dismissal – failure to name CMS in a grievance – was a valid interpretation of then-existing Sixth Circuit law and was an independent ground for dismissal.
5 The only case Judge Rosen cited on this issue was Boyd v. Corrections Corp. of America, 380 F.3d 989 (2004). But Boyd held only that prisoners serving time in private “contract” prisons must still abide by the administrative exhaustion provisions of the PLRA, because those provisions apply to “any” prison or jail. Implicit in the decision was that a private contract prison is serving a state function (and thus is acting under color of state law and is suable under § 1983), but Boyd neither said nor implied anything about the Eleventh Amendment.
9

ciently aligned with the state that its action can be viewed as “arising under color of state law.” Thus, a private store that carries out state-mandated racial segregation, newspaper people who ride along with law enforcement officers, a school athletic association, and doctors working under contract to the state can all be sued under § 1983 for violating the civil rights of others while acting “under color of state law.” See e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) (private store); Wilson v. Layne, 526 U.S. 603 (1999) (reporters); Brentwood Academic v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001) (school athletic association) ; and West v. Atkins, 487 U.S. 42 (1988) (prison doctors).
Eleventh Amendment immunity, on the other hand, is a much narrower concept. It attaches to the state itself; it has been held to extend to state officials sued in their official capacities, as well as to agencies that are directly linked to the state, like executive departments, state hospitals, and state universities. See e.g., Thiakol Corp. v. Michigan Dept. of Treasury, 987 F.2d 376 (6th Cir. 1993) (Eleventh Amendment bars suit against treasury); Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89 (1984) (Eleventh Amendment bars suit against state hospital); and Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir. 2000) (Eleventh Amendment bars suit against state university).
Eleventh Amendment immunity does not attach to subdivisions of the state like county or city government, sheriffs’ departments, or school boards.6 See e.g., Monell v.
6 The same is true of qualified immunity: in Richardson v. McKnight, 521 U.S. 399 (1997), the Court held that although guards in a private prison (providing contract services to the state) are suable under § 1983 because they act under color of state law, they are not protected by the qualified immunity that state employees enjoy. The same is true in the present case. The MDOC defendants can claim qualified im-
10

Department of Social Services, 436 U.S. 658 (1978) (county); Missouri v. Jenkins, 495 U.S. 33 (1990) (school board); Schelz v. Monroe County, 954 F2d 1540 (11th Cir. 1992) (county sheriff’s officers). The test for “sub-divisions” of the state is “whether the [body] is to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or political subdivision to which the Eleventh Amendment does not extend.” Mt. Healthy City School Board of Education v. Doyle, 429 U.S. 274, 280 (1977).
The standard for private entities which contract with the state is even higher. It looks at many factors, including whether the entity is separately incorporated, the degree of autonomy the entity has over its operations, whether it has the power to sue/be sued and to enter into contracts, whether its property is taxable, whether it has the funds or the power to satisfy a judgment, and whether any judgment will be paid by the state. See e.g., Kovats v. Rutgers State University, 822 F.2d 1303, 1307 (3d Cir. 1987).
On this standard, no one (but Judge Rosen) has ever suggested that CMS fits the definition of an arm of the state entitled to Eleventh Amendment immunity. Indeed, CMS itself has been sued in a host of federal courts all over the country, where its status as a contract health-care provider to state DOCs is similar if not identical to its status here in Michigan.7 In none of these cases was CMS granted Eleventh Amendment immunity.
munity as state employees, while the CMS employees or agents cannot. 7 Most of the reported cases are brought by pro se prisoner plaintiffs and (predictably) result in Rule
12(b)(6) dismissals or Rule 56 summary judgments. But of the hundreds of cases reviewed, counsel for the plaintiff could find none in which CMS was let out on Eleventh Amendment grounds.
11

See e.g.,Calhoun v. Ramsey, 408 F.3d 375 (7th Cir. 2005) (policy-and-practice claim against both CMS and county went to the jury – defense verdict was upheld on appeal on the merits with no mention of the Eleventh Amendment); Goode v. CMS, Inc., 168 F. Supp. 2d 289 (D. Del. 2001) (dismissing state defendants in their official capacities on Eleventh Amendment grounds, but dismissing CMS only for failure to state a claim because respondeat superior is not a basis for § 1983 liability); Hartman v. CMS, Inc., 960 F. Supp. 1577 (M.D. Fl. 1996) (holding that fact issues precluded dismissal/summary judgment as to CMS, without mention of the Eleventh Amendment).
Judge Rosen’s conclusion to the contrary may be indicative of what he wants the law to be, but it is not what the law is. To prevent clear error – and now that the independent ground for dismissing CMS (based on exhaustion) is no longer good law – the Court should revisit CMS’s dismissal, and should reinstate CMS, Inc., as a named defendant.
CONCLUSION For the above reasons, the plaintiff Steven Broder asks the Court: 1. to find that he complied with the administrative exhaustion requirements of
the PLRA, so that his claims can go forward against CMS as to all grievances that he filed addressing the delays in his diagnosis, treatment, and aftercare; 2. to find that there was no basis in law for the Court to dismiss CMS sua sponte on Eleventh Amendment grounds; 3. to reinstate CMS, Inc., as a party defendant; and 4. to grant such further relief as the Court deems fair and just.
12

Dated: September 21, 2007

Respectfully submitted,
MICHIGAN CLINICAL LAW PROGRAM s/ Paul D. Reingold
363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu – P-27594

Proof of Service
The plaintiff’s motion and brief to revisit the dismissal of the corporate defendant CMS in light of new case law was served using the Court’s ECF system, which will provide notice by e-mail to all counsel listed on the case caption.
/s/ Paul D. Reingold Attorney for Plaintiff pdr@umich.edu – P-27594
Dated: September 21, 2007

13

 
 Case 2:03-cv-75106-MOB-PJK Document 113 Filed 03/14/2008 Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER,

Plaintiff, v.

Case No. 03-75106 Hon. Marianne O. Battani

CORRECTIONAL MEDICAL SERVICES, INC., et al.,

Defendants. ______________________________________/

OPINION AND ORDER ADOPTING MAGISTRATE JUDGES’S REPORT AND RECOMMENDATION

Before the Court is Defendants Mathai and Hutchinson’s Objections to Report and Recommendation (Doc. No. 102). The Court has reviewed the objections and Plaintiff’s response thereto and for the reasons that follow, the Court ADOPTS Magistrate Judge Komives’ Report and Recommendation. I. INTRODUCTION
Plaintiff Steven Broder, a prisoner in the custody of the Michigan Department of Corrections (“MDOC”), initiated the current action alleging federal claims under 42 U.S.C.§ 1983 and state law claims of gross negligence and medical malpractice. His claims arise out of his contention that Defendants failed to timely diagnose or adequately treat his larygenal cancer. Defendant Bency Mathai acted as Plaintiff’s primary care physician during the relevant time period, from Spring 2001 through April 2003. Dr. Craig Hutchinson, was the Medical Director of the contract provider of health care services for Michigan prisoners during the relevant time frame, and he was responsible for the policies and practices in place.
Defendants Mathai and Hutchinson filed a Motion to Dismiss and/or for Summary Judgment. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court referred the motion to Magistrate Judge Komives. After reviewing the parties’ submissions, Magistrate Judge

Case 2:03-cv-75106-MOB-PJK Document 113 Filed 03/14/2008 Page 2 of 6
Komives concluded that the motion should be granted in part and denied in part. The Factual History section of the Report and Recommendation lays out the relevant facts and the Court adopts the recitation in its entirety. The parties did not dispute that the Plaintiff’s gross negligence and willful and wanton misconduct claims should be dismissed. Defendants object to the remaining recommendations, challenging whether Plaintiff should be allowed to proceed with his Eighth Amendment and medical malpractice claims. II. STANDARD OF REVIEW
A district court must conduct a de novo review of the parts of a magistrate judge’s report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The district “court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.
The requirement of de novo review “is a statutory recognition that Article III of the United States Constitution mandates that the judicial power of the United States be vested in judges with life tenure.” United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985). Accordingly, Congress enacted 28 U.S.C. § 636(b)(1) to “insure[] that the district judge would be the final arbiter” of a matter referred to a magistrate. Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir. 1987). III. ANALYSIS
Defendants raise three objections to the Report and Recommendation. First, they assert that there is insufficient evidence to support that Dr. Mathai knew of an disregarded a substantial risk of serious harm to Plaintiff’s health and safety. Second, Defendants object to the recommendation that Plaintiff’s § 1983 claim go forward as to Dr. Hutchinson given his lack of personal involvement in the Plaintiff’s medical treatment. Finally Defendants object to the recommendation that the medical malpractice claim survives summary judgment inasmuch as Plaintiff’s Notice of Intent
2

Case 2:03-cv-75106-MOB-PJK Document 113 Filed 03/14/2008 Page 3 of 6
and Affidavit of Merit fail to meet the statutory criteria. Each objection is addressed below.
A. Eighth Amendment Courts assess a prisoner's claim that his constitutional right to medical treatment was violated under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). To state a § 1983 claim for a violation of a prisoner's Eighth Amendment rights due to inadequate medical care, the prisoner must allege facts evidencing a deliberate indifference to serious medical needs. Farmer v. Brennan, 511 U.S. 825, 838-42 (1994); Wilson v. Seiter, 501 U.S. 294, 297 (1991). To succeed on a claim of deliberate indifference, plaintiff must satisfy both an objective element and a subjective one. Wilson, 501 U.S. at 300. A serious medical need, such as Plaintiff’s in this case, satisfies the objective element. See id. at 297. If the medical need involved is minor, a plaintiff “must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment.” Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005) (quoting Napier v. Madison County, Kentucky, 238 F.3d 739, 742 (6th Cir. 2001)) (internal punctuation omitted). To satisfy the subjective component of the adequate medical care test, the plaintiff must demonstrate that the defendant “subjectively perceived a risk of harm and then disregarded it.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837). An inmate may satisfy the subjective component of the Section 1983 standard by showing that prison officials' delay in providing medical treatment caused unnecessary pain or the worsening of his condition. Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990) (observing that a “[f]ailure to respond to an inmate's known medical needs raises an inference that there was deliberate indifference to those needs”). Defendants assert that there is no evidence supporting the subject element of a
3

Case 2:03-cv-75106-MOB-PJK Document 113 Filed 03/14/2008 Page 4 of 6
deliberate indifference claim upon which the jury could conclude Dr. Mathai knew of and disregarded a substantial risk of serious harm to Plaintiff’s health and safety. Defendants’ assertion is undermined by the record in this case, which chronicles Plaintiff’s deteriorating medical condition and Dr. Mathai’s response to Plaintiff’s persistent sore throat and drastic weight loss. Defendants fail to show any basis upon which to depart from the Magistrate Judge’s thorough analysis of the facts and governing law. The Court agrees with the Magistrate Judge that a jury question exists, and, accordingly, rejects Defendants’ objection.
B. . Personal involvement Defendants object to the Magistrate Judge’s determination that Plaintiff’s § 1983 claim can continue against Dr. Hutchinson, arguing that Plaintiff has failed to show Dr. Hutchinson’s personal involvement in the policies and practices governing Plaintiff’s medical treatment. Defendants claim that there is no discussion of how the policies were adopted and/or implemented by Dr. Hutchinson or relied upon by any of Plaintiff’s treating physicians. The fact that MDOC’s system may be flawed does not necessarily indicate that Dr. Hutchinson was deliberately indifferent, and Defendants assert that there is no evidence that what happened to Plaintiff is anything other than an isolated incident. Objections at 16. Further, Defendants argue that the Magistrate Judge improperly relied on findings of fact and conclusions of law from other litigation, in which a district court found that “the policies, procedures, and health care systems in place [ ] in 2001-2002 violated the Eighth Amendment.” See R&R at 30. Dr. Hutchinson was not a party to that litigation and Defendants conclude that reliance on those findings is inappropriate. The record shows that Dr. Hutchinson provided clinical oversight for the state correctional system, including quality of specialty care services. Pl.’s Ex. I, at 6. In contrast to Defendants’ position, evidence of systemic problems is evidenced by the fact
4

Case 2:03-cv-75106-MOB-PJK Document 113 Filed 03/14/2008 Page 5 of 6
that Plaintiff’s kites, grievances, and letters to Dr. Pramstaller, MDOC’s chief medical officer, were not included in Plaintiff’s medical chart and available for review by Dr. Mathai. This problem is exacerbated by Defendants’ reliance on a system that was not designed to deal with urgent care. Pl.’s Ex. I at 76-77. In addition, the Court rejects Defendants’ contention that the Magistrate Judge relied improperly on the litigation in another case filed against the Michigan Department of Corrections regarding health care provided to prisoners. The Magistrate Judge merely cited the case as evidence supporting Plaintiff’s claim of systemic failure and Hutchinson’s knowledge of the failure. Finally, the Magistrate Judge relied on the testimony of Plaintiff’s expert, Dr. Williams, that the processes were “[w]ay too slow” in reaching his recommendation. R&R at 31.
There is sufficient evidence presented by Plaintiff to rebut Defendants’ request for summary judgment on this claim. Accordingly, the Court denies Defendants’ objection on this claim.
C. Medical malpractice claim Defendants contest the Magistrate Judge’s characterization of Michigan’s medical malpractice statutes as “procedural,” rather than substantive, and they assert that Plaintiff’s failure to comply with the statutory requirements requires dismissal. The Court disagrees. The Report and Recommendation articulates the statutory requirements and assesses whether they were met in this case. The recommendation is supported by case law. IV. CONCLUSION For the reasons stated above, the Court ADOPTS the Report and Recommendation in its entirety. Accordingly, Defendants’ Motion to Dismiss and/or for Summary Judgment is GRANTED in part and DENIED in part.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s gross negligence claim is
5

Case 2:03-cv-75106-MOB-PJK Document 113 Filed 03/14/2008 Page 6 of 6 DISMISSED.
IT IS SO ORDERED. DATED: March 14, 2008
s/Marianne O. Battani MARIANNE O. BATTANI UNITED STATES DISTRICT JUDGE CERTIFICATE OF SERVICE Copies of this Opinion and Order were mailed to counsel of record on this date by ordinary mail and/or e-filing. s/Bernadette M. Thebolt Deputy Clerk
6

 
 Case 2:03-cv-75106-GER-PJK Document 35 Filed 09/22/2004 Page 1 of 9

r

STEVEN BRODER,

F I l E D UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SEP 2 2 2lKJ4

SOUTHERN DIVISION

CU3F/K'S 0
~A~fJ~~~~f§'~~w

Plaintiff,

No.03-CY-75106-DT

vs.

Hon. Gerald E. Rosen

CORRECTIONAL MEDICAL SERVICES, ct al.,

Defendants.

ORDER ADOPTING, IN PART AND WITH MODIFICATION, MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION OF AUGUST 9,2004, AND DISMISSING PLAINTIFF'S COMPLA[NT AS TO
DEFENDANT CMS. IN [TS ENT[RETY, WITH PREJUDICE
At a session of said Court, held in the U.S. CO!.lrthouse, Detroit, Michigan
on __~SuE~·P~~~4~'~/!AiGD·'~___
PRESENT: Honorable Gerald E. Rosen United States District Judge
This matter is presently before the Court on the August 9,2004 Report and
Recommendation of Magistrate Judge Paul J. Komives recommending that the Court
grant, in part, and deny, in pali, the Motion to Dismiss filed by Defendant Correctional
Medical Service ("CMS"), I and recommending that thc Court grant Plaintiff's Motion to

I CMS provides health care services to inmates incarcerated by the Michigan Department of Corrections (MDOC), pursual1t to a contract between CMS and the State of Michigan.

Case 2:03-cv-75106-GER-PJK Document 35 Filed 09/22/2004 Page 2 of 9
Compel to the extent that it seeks discovery from Defendant CMS. Plaintiff timely filed objections to the Report and Recommendation to which objections, three defendants -Defendants Caruso, Epp and Pramstaller -- havc replied.
The Magistrate Judge's recommendation concerning Defendant's Motion to Dismiss is based upon his conclusion that Plaintiff failed to exhaust his administrative remedies with regard to his some of claims against Defel1dant CMS2 by virtuc of his failure to name CMS or allege any complaints against that entity in his November 3, 2001, March 7, 2003, and April 22, 2003 grievances. Therefore, pursuant to 42 U.S.c. § 1997e(a), the Magistrate Judge reconIDlel1ds that with regard to the complaints alleged in these three grievances, Plaintiff's claims against Defendant CMS be dismissed. However, with regard to complaints asserted in his July 12,2002 grievance, Magistrate Judge Komives detennined that Plaintiff had exhausted his administrative remedies against CMS, and for this reason, the Magistrate Judge recommends that Defendant's Motion to Dismiss be denied as to this one grievance.
The Court disagrces with the Magistrate Judge's exhaustion determination regarding the July 12, 2002 grievance. Plaintiff alleged in his July 12,2002 grievanec;
I am filing this grieva11ce to complain about the delay in diagnosis and treatment of my cancer, which caused months of unnecessary pain and medical complications. I want to make sure this never happens again and want compensation for thc harm I have suffercd. This grieva11ce is against the following doctors and staff (sec attached list), and any othcr treati11g
2 Defe11dant CMS is btlt one of eleven defendants named in Plaintiffs Complaillt.
2

Case 2:03-cv-75106-GER-PJK Document 35 Filed 09/22/2004 Page 3 of 9
personnel, supervisin!$ personnel, and any and all other individuals or organizations involved in the diagnosis .... [See Defendant's Motion to Dismiss Ex. 2·3.] To this grievance, Plaintiff attached a list of names of 36 doctors and nurses and one prison official, the warden of the prison, Henry Grayson. [See Plaintiffs Opposition Brief, Ex. A.] At the end of this two-column list of names, Plaintiff added the following phrases:
"Any and all relevant CMS personnel" [and] Any and all relevant MDOC personnel"
rd.
The Magistrate Judge detennitted that naming "any and all relevant CMS personnel" in his appended list is sufficient to constitute a complaint against CMS, the entity. The Court disagrees. This case is essentially no different than Alder v.
Correctional Medical Services, No. 02·CV·70997-DT (E.D. Mich.), a/rel 73 Fed. Appx.
839,2003 WL 22025373 (6th Cir. 2003), cert. denied, 124 S.Ct. 1718 (2004). In Alder, as in this case, the Magistrate Judge recommended that the court find that the prisoner's grievance naming an employee ofCMS in his grievance was sufficient to serve to exhaust the prisoner's administrative remedies with respect to eMS itself. The District Court rejected the Magistrate Judge's recommendation. The eourt concluded that Alder's grievance naming an employee of CMS could ltot serve to exhaust Alder's claims against CMS, and, having failed to demonstrate by any other evidence that he
3

Case 2:03-cv-75106-GER-PJK Document 35 Filed 09/22/2004 Page 4 of 9
exhausted his administrative remedies with respect to CMS, the District Court overruled the Magistrate Judge's reconm1endation. The Sixth Circuit affinned the District Court's failure-to-exhaust conclusion. See also, VanDiver v. Martin 304 F. Supp. 2d 934 (E.D. Mich. 2004) (merely mentioning CMS in grievance held insufficient to constitute a complaint against the entity).
Here, Plaintiff only includes in his attachment to his July 12 grievance a list of 37 specifically identified defendants. with the appended catch-all the phrase "any and all
relevant CMS personnef' at the end of this list. Even accepting this broad statement as
being sufficient to put eMS personnel that Plaintiff might ultimately seek to sue them, nowhere in his grievance docs Plait1tiff state that he is seeking compensation from CMS, tile entity. It is well-settled that a Section 1983 claim cannot be sustained on a theory of respondeat superior, see Rizzo v. Goode, 423 U.S. 362, 376-77 (1976), yet this appears to be the basis for the Magistrate Judge's recommendation.
However, even beyond Plaintiffs failure to exhaust problem, the Court finds PlaintifPs claims against CMS to be barred for another reason: Eleventh Amendmcnt immunity. The Eleventh Amendment prohibits tederal eourts trom entertaining suits by private parties against States or their agencies unless the state expressly consents to being
sued and therefore waives its sovereign il1U11Unity. Alabama v. Pugh, 438 U.S. 781, 98
S.Ct. 3057 (1978); Quem v. Jordan, 440 U.S. 332, 350, 99 S.O. 1139 (1979) (holding that § 1983 docs not override a State's Eleventh Amendment immunity). The State of
4

Case 2:03-cv-75106-GER-PJK Document 35 Filed 09/22/2004 Page 5 of 9
Michigan has not consented to being sued in civil rights actions ill the federal courts. See Abick v. Michigan, 803 F.2d 874, 877 (6th Cir.1986). See also, Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir.1999) (recognizing that claims against a Slate under § 1981 are barred by the Eleventh Amendment).
As indicated, the protections of the Eleventh Amendment extend not only to the
State but also to state agencies. See Pennhurst State School and Hasp. v. Halderman, 465 U.S. 89, 100-01, 104 S.C1. 900, 908 (1984); Johnson v. University o/Cincinnati,
215 FJd 561, 571 (6th Cir. ) (the university, as an arm of the State, is immune from suit under the Eleventh Amendmel1t); Presler v. }"lichigan Dept. a/Corrections, 129 FJd 1265,1997 WL 693057 (6th Clf. 1997) (the Eleventh Amendment bars suit against
MDOe); Lee v. Michigan Parole Board, 104 Fed. Appx. 490, 2004 WL 1532563 (6th
Cir. 2004) (holdil1g that prisoner's Section 1983 civil rights claims against the Michigan Parole Board, the Michigan Department ofCorrcctions, and the Michigan Burcau of Forensic Mental Health Scrvices were barred by the Eleventh Amendment); Taggart v. Oklahoma, 74 Fed.Appx. 880, 881, 2003 WL 22052864 (10th Cir.2003) (affim1ing district court's dismissal of prisoner's § 1983 aetion filed against the State of Oklahoma, the Oklahoma Department of Corrections, and DOC Medical Services on Eleventh Amendment immunity grounds).
Although this case admittedly has a slightly different twist, i.e., the entity sued is a private entity with whom the state has contracted to provide required medical services to
5

Case 2:03-cv-75106-GER-PJK Document 35 Filed 09/22/2004 Page 6 of 9
inmates incarcerated in the state prison, the Sixth Circuit has held that private entities performing prison duties are to be treated no differently than the Department of
Corrections. See Boyd v. Corrections Corporation o.fAmerica, F3d. 2004 WL 1982517 (6th Cir., Sept. 8, 2004). In Boyd, the prIsoner-plaintiff argued that CCA was a
private entity, not an arm of the State, and that he, therefore, was not required to pursue his grievances through the prison grievance procedure as mandated by the PLRA.
AIthough the holding in Boyd addressed only the complete exhaustion issue with respect
to complaints against CCA employees, the Sixth Circuit could not have reached the conclusion it did -- i.e., finding I1mt although CCA was a private entity that operated pursuant to a contract with the State, in order to pursue their civil rights complaints against CCA employees, the prisoners had to have first pursued their complaints through the prison's grievance procedure and have fully exhausted those administrative remedies -- the Court ipso facto had to tind that CCA, although a private contractor, was, for purposes of processing prisoner grievances, operating as all ann of the State with which it had contracted.)
) To the extent that Plaintiff has attempted to craft his complaints against CMS as a "policy or custom" complaint against a corporation acting under color of statc law so as
to bring his action against CMS within the purview of Monell v. Dep 'f ofSocial Services, 436 U.S. 658, 98 S.Ct. 2018 (J 978), the Court notes that Monell doctrine is applicable
only to local governments and municipalities which are not considered part of the State for Eleventh Amendment purposes. See Monell, 436 U.S. at 689 n. 54, 98 S.Ct. at 2035 11.54.
6

Case 2:03-cv-75106-GER-PJK Document 35 Filed 09/22/2004 Page 7 of 9
Here, the State of Michigan has delegated its duty to provide health care to state prisoners to Corrections Medical Services. CMS, thus, is acting as ann ofthe State, and accordingly, like the Michigan Department of Corrections, is immune from suit by virtue ofthc Eleventh Amendment. Therefore, Plaintiffs action against eMS is barred. Accordingly, the Court will dismiss Plaintiff's claims against CMS with prejudice.4
The Magistrate Judge also recommends that the COUli deny Plaintiffs motion to compel discovery from Defendants Antonini, Axelson, Trimble, Bey, Mathai, and Clark because they have not been served with process, and recommends that the Court enter an order directing Plaintiff to show cause why the complaint against these defendants
should not be dismissed for failure to comply with Fed. R. Civ. P. 4(m).5 The Court
finds it unnecessary to enter a show cause ordcr because the Court finds that Plaintiff has sufficiently explained the breakdown in the "service by the U.S. Marshal" procedure utilized in in/arma pauperis actions (see Response Brief, pp. 9-14). As Plaintiff indicates, the COllli ordered the Marshal's office to serve Defendants. The Court is advised that the Marshal's service does not file returns of service, nor docs it provide
4 This ruling Illoots the Magistrate Judge's recommendation with regard to Plaintiffs motion to compel discovery from eMS.
I Although the Magistrate Judge also noted that Defendant Grayson was not served, an Answer to Plaintiff's Complaint was med on behalf of Defendant Grayson. Although the Michigan Attorney General indicates (through the reply brief of Defendants Caruso, Epp and l'rastaller) that Warden Grayson's name was included as an answering defendant by mistake, no good cause has been shown for requi ring that Grayson be served anew.
7

Case 2:03-cv-75106-GER-PJK Document 35 Filed 09/22/2004 Page 8 of 9
proofs of service to prisoner-plaintiffs. Plaintiff indicates that upon receiving the Michigan Attomey Gcneral's Appearance together with an Answer and jury demand from four of the MDOC defendants, and the Appearance of separate counsel for eMS, Plaintiff mistakenly assumed that all of the defendants had beel1 served. Plaintiff scrved discovery requests upon CMS and all of the individual CMS defendants in April 2004. No responses were ever filed to those discovery requcsts. However, because thc first responsive plcading was from eMS itself, Plaintiff's counsel assumed that that motion would be decided before any action would be taken on the discovery requests. Although Plaintin"s counsel had sent correspondence to eMS's counsel inquiring about the interrogatories it had directed to the individual CMS defendants, CMS never advised Plaintiffs counsel that the individual defendants had not been served, nor did counsel object to any of the discovery requests on that basis.
Because service of process on the individual defendants was out of Plaintiffs hands, the Court finds that Plaintiff has shown sufficient good cause to extend the life of the summons in this case. Therefore. the Court will order that the summons be extended for a period of 30 days from the date of this Order to enable Plaintiff to effectuate service ofproecss on the six unserved individual CMS Defendants. After these defendants are served, Plaintiff may re-serve them with his discovery requests.
CONCLUSION For all of the foregoing reasons,
8

Case 2:03-cv-75106-GER-PJK Document 35 Filed 09/22/2004 Page 9 of 9

IT IS HEREBY ORDERED that the Magistrate Judge's August 9,2004 Report and Recommendation is accepted, in pali, and rejected, in part. The R&R is accepted \vith regard to Defendant CMS's Motion to Dismiss as to claims contained in his November 3,2001, March 7, 2003, and April 22, 2003 grievances but rejected with regard to the July 12, 2002 grievance.
IT IS FURTHER ORDERED that for the reasons stated in the Magistrate Judge's R&R and for the further reasons set forth above, Defendant CMS's Motion to Dismiss is GRANTED and Plaintiffs claims against this defendant are dismissed, with prejudice.
IT IS FURTHER ORDERED that the suounonses issued in this case are hereby extended for a period of30 days to allow l'laintiffto effectuate service upon Defendants Antonini, Axelson, Trimble, Bey, Mathai, and Clark. (There is no need to serve Defendant Grayson inasmuch as an answer has been filed on his behalf.)
IT IS FURTHER ORDERED that Plaintiffs Motion to Compel is DENIED without prejudice as to the individual CMS defendants. Plaintiff may re-serve his discovery requests after these defendants have been properly served with process. (The Motion to Compel is denied as moot as to Defendant CMS.)
SO ORDERED.

PUASUt..tIT TO RULE 77 (r:l). F[O. R. CIV. p.

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--- Gerald E.J3,..0icn d Stat~trict Judge 9

 
 Case 2:03-cv-75106-MOB-PJK Document 114 Filed 03/14/2008 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER,

Plaintiff, v.

Case No. 03-75106 Hon. Marianne O. Battani

CORRECTIONAL MEDICAL SERVICES, INC., et al.,

Defendants. ______________________________________/

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO REVISIT THE DISMISSAL OF THE CORPORATE DEFENDANT CMS IN LIGHT OF NEW CASE LAW
Before the Court is Plaintiff’s Motion to Revisit the Dismissal of the Corporate Defendant CMS in Light of New Case Law (Doc. No. 105). The Court has reviewed the pleadings and finds that oral argument would not aid in the resolution of this dispute. See E.D. Mich. LR LR 7.1(e)(2). For the reasons that follow, the Court GRANTS the motion. I. PROCEDURAL BACKGROUND
Plaintiff Steven Broder, a prisoner in the custody of the Michigan Department of Corrections (“MDOC”), initiated this law suit alleging federal and state claims against multiple defendants arising out of the medical treatment he received for his laryngeal cancer. Defendant Correctional Medical Services, Inc. (“CMS”), provides certain medical services to inmates incarcerated by the MDOC pursuant to contract. It subsequently moved for dismissal from the lawsuit based upon Plaintiff’s failure to exhaust. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court referred the motion to Magistrate Judge Komives for Report and Recommendation (“R&R”).
The Magistrate Judge recommended that the motion be granted in part and denied in part based upon his review of four grievances. According to the R&R, only one grievance made sufficient reference to CMS to be deemed exhausted. Plaintiff

Case 2:03-cv-75106-MOB-PJK Document 114 Filed 03/14/2008 Page 2 of 5
objected. Upon review of the objection, the Honorable Gerald E. Rosen, to whom the case
was assigned, dismissed CMS finding Plaintiff failed to exhaust any claim relative to CMS. See Order Adopting, In Part And With Modification, Magistrate Judge’s Report and Recommendation of August 9, 2004, and Dismissing Plaintiff’s Complaint As To Defendant CMS, In Its Entirety, With Prejudice. The issue before Judge Rosen was whether the claim ran against the corporate defendant inasmuch as Broder had never named CMS in three grievances and not named it specifically as a corporate entity in another grievance. Judge Rosen held that CMS had to be named as a separate corporate entity in each and every grievance, therefore dismissal was warranted. Judge Rosen added that Plaintiff’s claim against CMS were barred by the Eleventh Amendment. Id., at 4-8.
Plaintiff asks the Court to revisit the dismissal in light of changes in the law which impact the Sixth Circuit requirement that a defendant be named at Step 1 in the grievance process. Plaintiff relies on Jones v. Bock, U.S. , 127 S.Ct. 910, 923 (2007) (voiding the total exhaustion pleading requirements), as a basis for reinstatement of his claims against CMS.
Defendants Mathai and Hutchinson object to reinstatement on the grounds that the motion is untimely and that Plaintiff failed to exhaust in accordance with 42 U.S.C. § 1997(e)(a). The Court addresses the arguments below. II. ANALYSIS
A. Timeliness Defendants argue that Plaintiff’s motion is untimely under the Local Rules governing reconsideration, E.D. Mich. LR 7.1(g)(1), or under FED.R.CIV.P. 60(b). Because Plaintiff did not advance his motion under either procedural rule, Defendants’ arguments are immaterial.
2

Case 2:03-cv-75106-MOB-PJK Document 114 Filed 03/14/2008 Page 3 of 5
More importantly, the Court possesses authority to reconsider its prior, non-final orders pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. An order of dismissal was never entered in this case; hence, the Court is not bound by the strictures of FED.R.CIV.P. 60, and its revisory authority is essentially unfettered. See, e.g., Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (“every order short of a final decree is subject to reopening at the discretion of the district judge"). Accordingly, the Court considers the merits.1
B. Failure to Exhaust Defendants contend that Plaintiff’s failure to name CMS as a potential Defendant disregards the requirement that he be as specific as possible in filing his grievance. Under Section 1997e(a) of the Prison Litigation Reform Act (PLRA), “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). There is no dispute that Plaintiff did not name CMS in any of his four grievances; however, that is no longer the standard that must be met. Defendants acknowledge that the Jones Court held that the PLRA contained no requirement that an individual later sued be named in the initial grievance for exhaustion. The Court did hold that a prisoner must comply with prison grievance procedures. The governing Policy Directive instructs the prisoner to limit “information to the issue being grieved and“shall be as specific as possible.” Defs.’ Ex. 2. In reviewing this directive, the Jones Court did not read it to require Plaintiff to specifically name each Defendant. Defendants’ attempt to distinguish this case from Jones based on the
1Defendants do not respond to Plaintiff’s contention that the alternate ground advanced in Judge Rosen’s Order, Eleventh Amendment immunity, is inapplicable under the circumstances of this case. Accordingly, the Court considers any objection to that argument waived.
3

Case 2:03-cv-75106-MOB-PJK Document 114 Filed 03/14/2008 Page 4 of 5
fact that Plaintiff was represented by counsel at some point during the process is not persuasive.
Lastly, Defendants argue that Plaintiff failed to file his grievances in a timely manner. Specifically, Defendants assert that Plaintiff never complied with the requirement that he “try to verbally resolve the issue with staff within two days after becoming aware of a grievable issue” before filing a Step I Grievance. Defendants add that there is no evidence that Plaintiff attempted to resolve his issues with CMS verbally at any time. Most of the grievances were filed months after the issues arose, not within five days of an attempted verbal resolution as required by the Policy Directive. See Defendants’ Response at 11-12.
Even if Defendants are correct, in this case, MDOC reviewed and decided the grievances on the merits. It did not reject them as untimely. Consequently, Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2382 (2006) (holding that filing an “untimely or otherwise procedurally defective administrative grievance” does not constitute exhaustion), is distinguishable. Woodford is limited to those situations in which a prisoner files an action in court based on a grievance rejected by the prison officials as untimely. Here, it is undisputed that prison officials addressed Plaintiff’s grievances on the merits rather than dismissing them as untimely. See e.g. Johnson v Beardslee, No. 06-374, 2007 WL 2302378 (W.D. Mich. Aug. 8, 2007) (finding exhaustion satisfied because MDOC accepted the grievance and addressed it on the merits rather than rejecting it or denying it as untimely). IV. CONCLUSION
For the reasons stated above, the Court GRANTS Plaintiff’s motion. The Court VACATES the Order Adopting, In Part And With Modification, Magistrate Judge’s Report and Recommendation of August 9, 2004, and Dismissing Plaintiff’s Complaint As To Defendant CMS, In Its Entirety, With Prejudice. Plaintiff may proceed with his claims
4

Case 2:03-cv-75106-MOB-PJK Document 114 Filed 03/14/2008 Page 5 of 5 against CMS.
IT IS SO ORDERED. DATED: March 14, 2008
s/Marianne O. Battani MARIANNE O. BATTANI UNITED STATES DISTRICT JUDGE CERTIFICATE OF SERVICE Copies of this Opinion and Order were mailed to counsel of record on this date by ordinary mail and e-filing. s/Bernadette M. Thebolt Deputy Clerk
5

 
 Case 2:03-cv-75106-MOB-PJK Document 123 Filed 07/29/2008 Page 1 of 4 Nos. 08-1495/1514

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Jul28,2008

LEONARD GREEN, Clerk

STEVEN BRODER,

)

)

Plaintiff-Appellee,

)

)

v.

)

)

JAN EPPS, Regional Medical Director; GEORGE )

PRAMSTALLER, Medical Director,

)

)

Defendants-Appellants.

)

----f ~ ORDER

~ l~
JUL 2 9 2008

CLERK'S OFFICE DETROIT

Before: COLE and CLAY, Circuit Judges; RUSSELL, District Judge.'
In this prisoner civil rights action, the district court entered an order on March 14, 2008, which, in part, denied the defendants' motion for summary judgment on grounds of qualified immunity on the plaintiff's claim under the Eighth Amendment for denial of proper medical care. The defendants filed a notice ofappeal on Monday, Apri114, 2008, which has been docketed as Case No. 08-1495. That notice ofappeal does not list the order appealed from as required by Fed. R. App. P.3(c)(I)(B). The following day, the defendants filed a second notice of appeal, which has been docketed as Case No. 08-1514. Although the April 15 notice ofappeal complies with Fed. R. App. P. 3(c) by stating that the defendants appeal the March 14 order, it was not filed within thirty days of the March 14 order as required by Fed. R. App. P. 4(a)(l).

'The Honorable Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting by designation.

Case 2:03-cv-75106-MOB-PJK Document 123 Filed 07/29/2008
Nos. 08-1495/1514 -2-

Page 2 of 4

On Apri124, 2008, the defendants were directed to show cause why Case No. 08-1495 should

not be dismissed for failure to comply with Rule 3(c)(I)(B) and why Case No. 08-1514 should not

be dismissed as late. The defendants did not file a motion for an extension of time to appeal in the

district court pursuant to Fed. R. App. P. 4(a)(5). The defendants assert that they did not receive a

copy of the April 24 show cause order that was mailed to them on the date of its entry. On June 4,

2008, they filed a motion for an extension oftime to respond and a response to the show cause order.

The plaintiffobjects to the court's consideration ofthe defendants' response to the show cause order.

Because there is some question as to when the defendants received the April 24 order, we will

consider their June 4 response.

The defendants do not address the fact that the April 14 notice of appeal does not designate

the order appealed from as required by Fed. R. App. P. 3(c)(l)(B). A notice ofappeal that does not

designate an appealable order or judgment does not comply with Rule 3(c)(1 )(B). See Isert v. Ford

Motor Co., 461 F.3d 756, 760-61 (6th Cir. 2006); United States v. Glover, 242F.3d 333, 336-37 (6th

Cir. 2001). The April 14 notice of appeal, therefore, does not perfect an appeal from the March 14

order.

The defendants argne that the April 15 notice of appeal was timely filed because, pursuant

to Fed. R. App. P. 26(c), an additional three days for mailing is added to the thirty-day appeal period

of Fed, R. App. P. 4(a)(I). An additional three days is added to a time period only "when a party is

required or permitted to act within a prescribed period after a paper is served on that party." Rule

26(c) (emphasis added). Fed. R. App. P. 4(a)(I)(A) requires that a notice of appeal be filed within

30 days after the entry ofthe order appealed from. The additional three-day period for mailing is not

applicable in calculating the time for filing a notice of appeal. See Ludgood v. Apex Marine Corp.

Ship Mgmt., 311 F.3d 364,367 (5th Cir. 2002); Hunterv. McWeeney, 64 F.3d 663 (Table) (6th Cir.

Case 2:03-cv-75106-MOB-PJK Document 123 Filed 07/29/2008
~os.08-1495/1514
-3-

Page 3 of 4

1995) (unpublished order); Walls v. McClure, 911 F.2d 734 (Table) (6th Cir. 1990) (unpublished

order); Sofarelli Assocs., Inc. v. United States, 716 F.2d 1395, 1396 (Fed. Cir. 1983).

The time limits for filing a notice of appeal set forth in Rule 4(a)(l) are mandatory. See

Bowles v. Russell, 127 S. Ct. 2360, 23 (2007). The April 15 notice of appeal does not impart

appellate jurisdiction on this court, and this court lacks the authority to grant an extension of time

to appeal. See Fed. R. App. P. 26(b)(1).

These appeals are DISMISSED sua sponte for lack ofjurisdiction.

ENTERED BY ORDER OF THE COURT
~~4

Leonard Green Clerk

Case 2:03-cv-75106-MOB-PJK Document 123 Filed 07/29/2008 Page 4 of 4

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTII STREET, ROOM 540 POTTER STEWART U.S. COURTIIOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000
www.ca6.uscourts.gov

Filed: July 28, 2008

Mr. Paul D. Reingold Michigan Clinical Law Program 801 Monroe Street Suite 363 Legal Research Building Ann Arbor, MI 48109
Mr. Kevin M. Thorn Office of the Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909
Re: Case No. 08-1495, Steven Broder v. Jan Epps, et al Originating Case No. : 03-75106
Dear Counsel:
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,

cc: Honorable Marianne O. Battani Mr. David J. Weaver
Enclosure

slKathryn Kasner Case Manager Direct Dial No. 513-564-7014 Fax No. 513-564-7096

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

____________________________________________ Estate of STEVEN BRODER, by James H. Jackson, personal representative,
Plaintiff, vs.
CORRECTIONAL MEDICAL SERVICES, INC., its medical director CRAIG HUTCHINSON, and BENCY MATHAI, and employees of the Michigan Department of Corrections, namely GEORGE PRAMSTALLER, medical director, and JAN EPP, regional medical director, all in their individual capacities,
Defendants. _____________________________________________/

File No. 03-75106 Hon. Marianne O. Battani Mag. Judge Paul J. Komives

PLAINTIFF’S RESPONSE TO CMS DEFENDANTS’ MOTION TO DISMISS CLAIMS FOR EXEMPLARY AND PUNITIVE DAMAGES AND ATTORNEYS’ FEES

Introduction

The Court accepted the plaintiff’s second amended complaint on April 13, 2009. See R.

148, Order Granting Plaintiff Leave to Amend. The second amended complaint renews the de-

mand in the first amended complaint for compensatory, exemplary, and punitive damages com-

mensurate with the injuries Mr. Broder suffered. See R. 149. The Court allowed the claims for

exemplary and punitive damages in the second amended complaint over the objection of the

CMS defendants. See R. 146, CMS Brief in Opposition to Amendment. Now the CMS defen-

dants have filed a motion to dismiss the plaintiff’s claims for exemplary and punitive damages

and attorneys’ fees, on the same grounds. See R. 167. The plaintiff responds and asks the Court

to deny the defendants’ motion.

Statement of Facts

Steven Broder filed suit in 2003 for the damages he suffered due to the late diagnosis and

1

late treatment of his throat cancer. In 2007 his throat cancer came back, requiring massive surgery in May 2008. Despite the surgery, the cancer came back again in late 2008, resulting in his death in December 2008. His estate was named the plaintiff in the case in early 2009. The personal representative filed an amended complaint to add the damages that Mr. Broder suffered in 2008. There were no heirs at law to make a claim for their own damages under the state Wrongful Death Act. Mr. Broder’s estate seeks the damages that he would have been entitled to had he lived. The state Survival Act, MCL § 600.2921, provides that the estate stands in the shoes of the deceased and can recover exactly what the plaintiff would have been entitled to recover had he survived.
Argument Michigan’s Survival Statute allows an action pending at the time of the plaintiff’s death to be amended to comply with Michigan’s Wrongful Death Act, MCL § 600.2922. See MCL § 600.2921. If properly amended, the action may seek additional damages resulting from the death. Theisen v. Knake, 236 Mich. App. 249, 256; 599 N.W.2d 777 (1999). The WDA allows the plaintiff to “stand in the shoes of the decedent and prosecute his action for him.” Id. at 258. The plaintiff has complied with the requirements of the WDA by substituting James Jackson, the personal representative of Mr. Broder’s estate, as the plaintiff in this action following Mr. Broder’s death. See MCL § 600.2922(2). The Survival Statute and the WDA preserve the entirety of Mr. Broder’s § 1983 claim. Thus, the second amended complaint claims all damages that would have been available to Mr. Broder had he survived, including exemplary and punitive damages and attorneys’ fees. Exemplary damages compensate for injury to feelings caused by conduct “so willful and wanton that it constitutes a reckless disregard of the plaintiff’s rights.” Veselenak v. Smith, 414
2

Mich. 567, 572-73; 327 N.W.2d 261 (1982). The purpose of exemplary damages is not to punish the defendant, but to render the plaintiff whole. Jackson Printing Co. v. Mitan, 169 Mich. App. 334, 341; 425 N.W.2d 791 (1988).
The second amended complaint also seeks punitive damages. In a § 1983 claim, punitive damages may be awarded “when the defendant willfully and intentionally violates another’s civil rights or when the defendant acts with reckless or callous indifference to the federally protected rights of others.” Gordon v. Norman, 788 F.2d 1194, 1199 (6th Cir. 1986). The purpose of punitive damages, like the purpose of § 1983, is to deter future egregious conduct. Smith v. Wade, 461 U.S. 30, 51 (1983).
The plaintiff properly asserted the claims for exemplary and punitive damages in the original § 1983 action and these claims survive Mr. Broder’s death under the Survival Statute; thus, his estate may pursue them now.
1. Recent Federal Decisions Establish that All Damages Otherwise Available in a § 1983 Action Remain Available When the Claim is Pursued After the Victim’s Death.
The CMS defendants contend that the WDA must specifically allow for exemplary and punitive damages in order for the plaintiff to pursue them. The CMS defendants argue that the WDA precludes these types of damages because they are not specifically listed in the statute.
The CMS defendants misunderstand the purpose of the WDA as applied to this case. In this case, the WDA simply allows the action pending at the plaintiff’s death to survive by permitting a personal representative to pursue the claim on the decedent’s behalf. It is true that for cases brought solely under the WDA – on behalf of heirs or claimants other than the deceased – neither punitive nor exemplary damages are allowed. Fellows v. Superior Products Co., 201 Mich. App. 155, 158; 506 N.W.2d 534, 536 (1993). This makes perfect sense, as those claimants could not have suffered punitive or exemplary damages; their damages are derivative. The key
3

distinction between a case such as Fellows and the instant case is that this case does not rely on the WDA as a cause of action. The plaintiff has simply re-styled the § 1983 claim to comply with the WDA so that it may be pursued after Mr. Broder’s death.
The Western District of Michigan has recently considered this precise issue and held that in a § 1983 claim for deliberate indifference to medical needs that resulted in wrongful death, the plaintiff may recover all damages normally available under federal civil rights law. In Murphy v. Gilman, 551 F. Supp. 2d 677 (2008), the court held that the WDA did not preclude the plaintiff from seeking punitive damages and damages for intentional infliction of emotional distress because those damages are generally available for a § 1983 claim. Murphy, at 683-85. The court said that “federal standards govern the determination of damages under the civil rights statutes.” Murphy at 684 (citing Gordon v. Norman, 788 F.2d 1194, 1199 (6th Cir. 1986)) (emphasis in original). Indeed, even though punitive damages are not disallowed by the WDA as to Mr. Broder’s own survival claim for the harm he suffered in 2001-02 or in 2008, if they were disallowed, “punitive damages can be awarded under § 1983 even where they would not normally be recoverable under . . . local law.” Id. (emphasis in original).
In another prisoner civil rights claim for serious indifference to medical needs brought under the WDA after the prisoner’s death, the court used the same reasoning to allow the plaintiff to seek punitive damages. Valarie v. Michigan Dep’t of Corrections, No. 2:07-cv-5, 2008 U.S. Dist. LEXIS 93558, at *21 (W.D. Mich. Nov. 17, 2008). Thus, in the same factual context as the instant case, federal courts in Michigan have rejected the defendants’ argument that the WDA precludes exemplary and punitive damages in a § 1983 action.
In other words, the WDA does not take away legitimate damage claims the decedent himself would have had under § 1983. The plaintiff does not need to rely on the WDA as an inde-
4

pendent basis for his exemplary and punitive damages claims. The absence of a provision for them under the WDA is “irrelevant.” Murphy, 551 F. Supp. 2d at 685.
Murphy and Valarie are also consistent with state court decisions interpreting the WDA. Indeed, the Murphy quote, at 684, that “punitive damages can be awarded under § 1983 even where they would not normally be recoverable under . . . local law” comes from a Michigan case. See Janda v. City of Detroit, 175 Mich. App. 120, 129; 437 N.W.2d 326, 331(1989)). In Theisen v. Knake, 236 Mich. App. 249, 255; 599 N.W.2d 777 (1999), the Michigan Court of Appeals clarified that under the WDA, “the personal representative of a deceased . . . stands in the deceased’s place for all purposes incident to the enforcement of that claim, including rights and privileges personal to the deceased in his lifetime” (quoting McNitt v. Citco Drilling Co., 60 Mich. App. 81, 88; 230 N.W.2d 318 (1975) (emphasis in original)). The intervening death of a plaintiff “neither limits nor precludes the type of damages that could have been recovered by the person had the person survived.” Thorn v. Mercy Mem’l Hosp. Corp., 281 Mich. App. 644, 651; 761 N.W.2d 414 (2008).
These decisions show that regardless of whether the underlying action is grounded in state or federal law, the function of the WDA is the same: where a plaintiff dies from an injury for which he had a pending cause of action, the WDA is not a filter that eliminates all or part of the plaintiff’s pending claim. It is simply a mechanism that enables a personal representative to “step into the decedent’s shoes” and prosecute the claim under the applicable law. The limitations on relief in the WDA apply only to the extent that new claims are being made on behalf of derivative plaintiffs who have suffered different (and more limited) damages than the deceased plaintiff. For a § 1983 action, this means that the personal representative can pursue all claims
5

stemming from the “rights and privileges personal to the deceased” under federal civil rights law, including punitive and exemplary damages, and attorneys’ fees allowed by law.
2. The List of Recoverable Damages in the Wrongful Death Act Is Illustrative, Not Exhaustive, and Does Not Preclude Recovery for Other Types of Damages. Even if this Court were to decide that exemplary and punitive damages must be indepen-
dently authorized by the WDA in order for the plaintiff to pursue them after Mr. Broder’s death, the plaintiff would still be allowed to go forward with these claims. Contrary to the defendants’ interpretation of the WDA, a particular form of damages is not precluded simply because section 6 of the WDA fails to specifically reference it. Miller v. State Farm Mut. Auto Ins. Co., 410 Mich. 528, 560; 302 NW2d 537 (1981); Thorn v. Mercy Mem’l Hosp. Corp., 281 Mich. App. 644, 653; 761 N.W.2d 414 (2008).
Section 6 of the WDA provides as follows: The court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the decedent during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of society and companionship of the deceased. MCL § 600.2922(6) (emphasis added). This list of potential damages provided in section 6 is meant to highlight the type of increased damages available as a result of death. See Hawkins v. Regional Med. Lab., 415 Mich. 420, 436-38; 329 N.W.2d 729 (1982) (discussing the legislative history and intent of the WDA). It is not, as the defendants contend, an exhaustive list that is meant to extinguish other claims properly brought as part of the plaintiff’s underlying action. The term “including” as used in section 6 “indicates an intent by the Legislature to permit the award of any type of damages, economic and noneconomic, deemed justified by the facts of the particular case.” Thorn at 651 (emphasis added). The fact that medical malpractice suits result-
6

ing in death are prosecuted under the WDA “does not change the character of such actions except to expand the elements of damage available.” Jenkins v. Patel, 471 Mich. 158, 165; 684 NW2d 346 (2004). Thus, Michigan courts have considered and rejected the CMS defendants’ argument that section 6 provides an exhaustive list of damages recoverable under the WDA.
In making this argument, the CMS defendants cite an older line of cases that has been superseded by more recent decisions. For example, the defendants rely on language in Bernier v. Board of County Road Commissioners, 581 F. Supp. 71, 80 (W.D. Mich. 1983), to argue that because the WDA contains no provision for recovery of exemplary damages, a plaintiff may not recover them. Bernier is unreliable authority for two reasons. First, it relies on the erroneous holding in Endykiewicz v. State Highway Comm’n, 414 Mich 377; 324 NW2d 755 (1982), that the WDA creates a new cause of action for the sole benefit of the decedent’s beneficiaries, a holding the Michigan Supreme Court has since overruled. Bernier, 581 F. Supp. at 80 (citing Endykiewicz, at 760, overruled in relevant part by Wesche v. Mecosta Road Comm’n, 480 Mich. 75, 91; 746 NW2d 847 (2008)). Wesche makes clear that the WDA does not create a new cause of action as to the plaintiff, but rather allows the underlying claim to survive enhanced by the measure of damages available as a result of death. Wesche, 480 Mich. at 91. The second reason Bernier should not be applied to this case is that since reaching that holding, the Western District has expressly rejected the idea that damages must be listed in section 6 to be recoverable under the WDA. See, e.g., Murphy, 551 F. Supp. 2d at 685.
Other cases that the CMS defendants rely on have been similarly superseded by more recent decisions. For example, the defendants cite a statement from Fellows v. Superior Products Co., 201 Mich. App. 155; 506 N.W.2d 534 (1993)), that exemplary and punitive damages are not recoverable under the WDA because they do not appear in section 6, but the Court of
7

Appeals expressly reversed this position in Thorn. Thorn, 281 Mich. App. at 653 (discussing Fellows). Thorn labels this statement from Fellows as mere “dicta” that is “not dispositive” of the issues presented in the particular case. Id. The Court of Appeals also reversed its position because Fellows, like Bernier, relied on Endykiewicz’s now-repudiated understanding of the WDA. Id. at 652-53.
The CMS defendants also point to dicta in Frontier Insurance Co. v. Blaty, 454 F.3d 590, 599 (6th Cir. 2006), stating that the WDA “must be narrowly construed so that only those damages explicitly provided for in the act are recoverable.” The defendants’ reliance on Blaty is “misplaced.” See Murphy, 551 F. Supp. 2d at 684. Blaty was a § 1983 action where the plaintiff sought damages for the decedent’s loss of enjoyment of life. 454 F.3d at 598. As the Blaty court correctly noted, a decedent’s loss of enjoyment of life (unlike punitive and exemplary damages) is not recoverable under § 1983, and it is also not recoverable under the WDA because the WDA only permits recovery to the plaintiff for pain and suffering experienced consciously “between the time of injury and death.” 454 F.3d at 599 (citing MCL § 600.2922(6)).
In contrast, the exemplary and punitive damages the plaintiff seeks in this case do not violate the WDA because they would compensate plaintiff for the suffering Mr. Broder experienced before his death. Furthermore, because § 1983 permits exemplary and punitive damages, the plaintiff does not need to point to a particular provision in the WDA authorizing such claims. Murphy at 684. Blaty did not consider the availability of punitive or exemplary damages under the WDA and its dicta is not controlling here. Id. This Court should follow Murphy and hold that the WDA does not preclude exemplary and punitive damages otherwise available under § 1983.
8

Finally, the Court should note that while the defendants’ brief repeatedly cites to Polec v. Northwest Airlines (In re Air Crash Disaster), 86 F3d 498 (6th Cir. 1996), for the proposition that the WDA precludes exemplary and punitive damages, nowhere in Polec does the Sixth Circuit interpret Michigan’s WDA. Nor does the case discuss the availability of exemplary and punitive damages in an action pursued after the original plaintiff’s death. Polec has no bearing on the issue of whether the plaintiff may claim exemplary and punitive damages in this case.
3. The Facts Support the Plaintiff’s Claims for Exemplary and Punitive Damages. As a result of the defendants’ denial of adequate medical care over a period of seven
years, Mr. Broder suffered mental and emotional anguish in addition to extraordinary physical injury. See R. 149, Second Amended Complaint, p.11. He suffered humiliation during the many occasions when his most basic needs were neglected. Id. at 7-8. The plaintiff will not be made whole with compensation only for Mr. Broder’s physical pain and suffering.
The defendants’ reasoning would lead to the perverse result that where a plaintiff does not survive the medical malpractice committed against him, the party responsible for the malpractice does not have to make the plaintiff whole. The Michigan Supreme Court has made it clear that the WDA does not require such an outcome: “dead medical malpractice victims are entitled to no lesser damages than living medical malpractice victims,” and the WDA allows the “decedent’s estate to recover everything the decedent would have been able to recover” had he lived. Shinholster v. Annapolis Hosp., 471 Mich. 540, 565; 685 NW2d 275 (2004). Precluding exemplary and punitive damages would contravene the basic principal that “the more egregious the injury, the greater the damages . . . any other result would be contrary to the history of litigation in this area of the law, which sought to assure that wrongdoers would be held accountable to their victims.” Id.; see also Thorn, 281 Mich. App. at 660 (expressing similar concerns).
9

The CMS defendants have produced no authority directly on point stating that the WDA

precludes recovery for exemplary and punitive damages in a § 1983 action. The Western District

has recently spoken twice on this exact issue and left no ambiguity: in a § 1983 action, the WDA

does not preclude recovery for damages otherwise available under federal civil rights law. The

deterrence function of a § 1983 claim also cannot be served if the plaintiff is not permitted to

seek punitive damages. Mr. Broder’s death only heightens the concern to deter the defendants

from future egregious conduct. This Court should allow the plaintiff to pursue his claim for ex-

emplary and punitive damages.

Conclusion

For the above reasons, the plaintiff asks the Court to deny the CMS defendants’ motion to

dismiss the plaintiff’s claims for exemplary and punitive damages and for attorneys’ fees under §

1988. Alternatively, the Court can take this response as the plaintiff’s motion in limine seeking a

ruling that all damages that the plaintiff himself could have been awarded had he survived (as set

forth in the second amended complaint) are appropriate to be tried under the state Survival Act.

Respectfully submitted,

s/ Paul D. Reingold Michigan Clinical Law Program 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu - P27594

Dated: September 9, 2009

Laura Cunningham Law Graduate on the Brief

10

Proof of Service The above response to the CMS defendants’ motion to dismiss claims for exemplary and punitive damages and attorneys’ fees was filed using the Court’s ECF system, which will send same-day e-mail notice and copies to all counsel of record.
s/ Paul D. Reingold Dated: September 9, 2009
11

 
 Case 2:03-cv-75106-NGE-PJK Document 100 Filed 08/29/2007 Page 1 of 57

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER,

Plaintiff, v.

CASE NO. 03-CV-75106-GER-PJK JUDGE NANCY G. EDMUNDS MAGISTRATE JUDGE PAUL J. KOMIVES

CORRECTIONAL MEDICAL SERVICES, INC., et al.

Defendants. /
REPORT AND RECOMMENDATION REGARDING MATHAI AND HUTCHINSON’S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT (Doc. Ent. 79)

I.

RECOMMENDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A.

Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.

The original complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2.

Defendant CMS’s motion to dismiss and plaintiff’s motion to compel . . . . . . . . . . . . . . 3

3.

Defendants Epp, Caruso and Pramstaller’s motion for leave to amend answer . . . . . . . . 4

4.

The amended complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B.

The CMS Defendants’ Dispositive Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C.

Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.

Fed. R. Civ. P. 12 (“Defenses and Objections”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2.

Fed. R. Civ. P. 56 (“Summary Judgment”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D.

Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1.

Factual history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2.

As an initial matter, the Court should dismiss plaintiff’s state law claims for gross

negligence, reckless indifference, and willful and wanton misconduct. . . . . . . . . . . . . 20

3.

The Court should conclude that plaintiff’s Eighth Amendment claims against the CMS

defendants survive summary judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

4.

The Court should conclude that plaintiff’s negligence and medical malpractice claim

against Mathai survive summary judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

a.

Defendants are not entitled to summary judgment on their procedural challenges

to plaintiff’s medical malpractice claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

b.

Defendants are not entitled to summary judgment on their claim that plaintiff has

not complied with Section 600.2912a(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

c.

Defendants are not entitled to summary judgment on their substantive challenge

to plaintiff’s medical malpractice claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Case 2:03-cv-75106-NGE-PJK Document 100 Filed 08/29/2007 Page 2 of 57
I. RECOMMENDATION: The Court should grant in part and deny in part defendants Mathai and Hutchinson’s motion to dismiss and/or for summary judgment. Doc. Ent. 79. II. REPORT: A. Procedural History 1. The original complaint
Plaintiff is currently incarcerated at Parnall Correctional Facility (SMT) in Jackson, Michigan. He filed a notice of intent (NOI) under Michigan’s medical malpractice statute on April 29, 2003. Doc. Ent. 79-12, Doc. Ent. 86 Ex. S.
On December 24, 2003, plaintiff filed a complaint against defendants Patricia L. Caruso, the director of the Michigan Department of Corrections (MDOC); George Pramstaller, D.O., described as the MDOC’s chief medical officer; Henry Grayson, described as the warden at SMT; Jan Epps, B.S.N., R.N., described as the regional health care administrator; Correctional Medical Services (CMS), described as a for-profit corporation licensed to do business in Michigan; and Audberto Antonini, M.D., Benzi Mathai, M.D., Bey, M.D., Malcolm Trimble, M.D., John Axelson, M.D., and Ray H. Clark, M.D., described as agents or employees of CMS. Doc. Ent. 3 at 2-3 ¶¶ 6-16. Along with his complaint, plaintiff filed affidavits of merit dated December 9 and December 12, 2003. Doc. Ent. 3 at 15-18, 19-22.
Plaintiff’s claims include a 42 U.S.C. § 1983 Eighth Amendment claim of deliberate indifference to serious medical needs; as well as state law claims of gross negligence, reckless indifference, and willful and wanton misconduct; and negligence and medical malpractice. Comp. at 8-13 ¶¶ 91-129. Plaintiff seeks compensatory, exemplary, and punitive damages; declaratory, equitable, and injunctive relief; and costs, attorney fees, and any other relief the Court deems appropriate. Doc. Ent. 3 at 13-14. Plaintiff has been granted in forma pauperis

Case 2:03-cv-75106-NGE-PJK Document 100 Filed 08/29/2007 Page 3 of 57
status, and he is represented by the Michigan Clinical Law Program. Doc. Ent. 2, Doc. Ent. 3 at 1.1
Defendants Caruso, Pramstaller, Grayson, and Epp filed an answer to the complaint on April 22, 2004. Doc. Ent. 16. On October 18, 2004, defendants Mathai and Antonini filed an answer to the complaint. Doc. Ent. 41. 2. Defendant CMS’s motion to dismiss and plaintiff’s motion to compel
On February 24, 2004, defendant CMS filed a motion to dismiss. Doc. Ent. 8. Defendant argued that “plaintiff[’s] complaint must be dismissed for failure to comply with 42 U.S.C. § 1997e(a)[,]” and “the Court should decline supplemental jurisdiction over plaintiff’s pendant state law claims pursuant to 28 U.S.C. § 1367(a).” Doc. Ent. 8 at I. On June 29, 2004, plaintiff filed a motion to compel answers to discovery requests as to defendants CMS, Antonini, Axelson, Trimble, Bey, Mathai, and Clark. Doc. Ent. 20.
On August 9, 2004, I entered a report and recommendation. Doc. Ent. 21. First, I recommended that the Court grant in part and deny in part defendant CMS’s motion to dismiss. Specifically, I recommended that the motion to dismiss be denied to the extent it sought dismissal of claims against CMS to the extent they were supported by plaintiff’s second grievance and to the extent it sought dismissal of plaintiff’s state law claims. Second, I recommended that if the Court agreed with my recommendation, it should grant plaintiff’s motion to compel discovery, but only to the extent it sought documents from defendant CMS. Finally, I recommended that the Court enter an order requiring plaintiff to show cause why the
1Judge Rosen has referred this case to me to conduct all pretrial proceedings. Doc. Ent. 5.
3

Case 2:03-cv-75106-NGE-PJK Document 100 Filed 08/29/2007 Page 4 of 57
complaint against the unserved defendants (Antonini, Axelson, Trimble, Bey, Mathai, Clark, and Grayson) should not be dismissed for failure to comply with Fed. R. Civ. P. 4(m).
On September 22, 2004, Judge Rosen entered an order (1) accepting in part and rejecting in part my report and recommendation; (2) granting CMS’s motion to dismiss and dismissing with prejudice plaintiff’s claims against CMS; (3) extending the summonses in this case for thirty (30) days so that plaintiff might effectuate service upon Antonini, Axelson, Trimble, Bey, Mathai and Clark and (4) denying without prejudice plaintiff’s motion to compel as to the individual CMS defendants. 3. Defendants Epp, Caruso and Pramstaller’s motion for leave to amend answer
On September 7, 2004, between the filing of my report and recommendation and Judge Rosen’s order regarding that filing, defendants Epp, Caruso and Pramstaller filed a motion for leave to amend their April 22, 2004 answer, in part because it had erroneously been filed on behalf of Grayson. Doc. Ent. 30. On the same date, these three defendants filed a first amended answer (dated September 2, 2004). Doc. Ent. 28.
On November 9, 2004, I entered an order granting this motion and accepting the September 2, 2004, document for filing. Doc. Ent. 45. 4. The amended complaint
On October 1, 2004, plaintiff filed a motion for leave to amend complaint in order to dismiss several defendants and to add defendant Hutchinson. Doc. Ent. 36. I granted this motion on October 20, 2004. Doc. Ent. 43. On December 6, 2004, no amended complaint having been filed with the Court, I entered an order requiring plaintiff to show cause why his case should not be dismissed for failure to prosecute. Doc. Ent. 47.
4

Case 2:03-cv-75106-NGE-PJK Document 100 Filed 08/29/2007 Page 5 of 57
Plaintiff responded on December 13, 2004, citing a clerical error. Doc. Ent. 48. On December 13, 2004, plaintiff filed an amended complaint2 against Caruso, Pramstaller, Grayson, Epps, Hutchinson, Antonini and Mathai. Doc. Ent. 49. In his own words, the crux of this complaint is that “defendants were deliberately indifferent to his serious medical needs by failing to timely diagnose and treat his laryngeal cancer, in violation of the Eighth Amendment to the United States Constitution[.]” Doc. Ent. 49 ¶ 3
Plaintiff’s legal claims are denominated as (I) 42 U.S.C. § 1983; (II) gross negligence, reckless indifference, and willful and wanton misconduct and (III) negligence and medical malpractice. On December 30, 2004, defendants Hutchinson, Antonini and Mathai filed an answer to the first amended complaint, as well as affirmative defenses. Doc. Ent. 50 at 1-15, 4246.
On November 16, 2005, I entered an order which in part set the deadline for discovery for January 15, 2006. Doc. Ent. 68. I twice ordered sixty (60) day extensions to these dates. Doc. Entries 69 & 71. Eventually, defendants Caruso, Pramstaller and Epps deadline to file a dispositive motion was set for December 15, 2006. Doc. Ent. 82.
On September 27, 2006, a stipulation to dismiss Grayson was filed, and Judge Edmunds3 has entered an order dismissing Grayson pursuant to the stipulation. Doc. Entries 76 & 99. On January 29, 2007, I signed a stipulation and order dismissing defendant Antonini with prejudice.
2This document is originally dated September 30, 2004, the same date that appears on plaintiff’s October 1, 2004 motion to amend the complaint.
3On August 17, 2007, Judge Rosen entered an order of disqualification, and the case was reassigned to Judge Edmunds. Doc. Ent. 98.
5

Case 2:03-cv-75106-NGE-PJK Document 100 Filed 08/29/2007 Page 6 of 57
Doc. Ent. 93. Therefore, the only remaining defendants are Caruso, Pramstaller and Epps
(hereinafter referred to as “the MDOC defendants”) and Hutchinson and Mathai (hereinafter
referred to as “the CMS defendants”).
B. The CMS Defendants’ Dispositive Motion
On November 30, 2006, the CMS defendants filed a motion to dismiss and/or for
summary judgment in which they set forth the following main arguments:
I. Defendants Mathai and Hutchinson were not deliberately indifferent to plaintiff’s serious medical needs, therefore plaintiff’s claim pursuant to 42 [U.S.C. §] 1983 must be dismissed pursuant to [Fed. R. Civ. P.] 56.
II. Plaintiff fails to state a claim against defendants Mathai and/or Hutchinson for negligence, gross negligence, “Reckless indifference,’ and/or willful and wanton misconduct, upon which relief may be granted.
III. Plaintiff’s amended complaint fails to state a claim for medical malpractice upon which relief may be granted and must be dismissed pursuant to [Fed. R. Civ. P.] 12(b)(6).
IV. Defendant Dr. Mathai is entitled to summary judgment concerning plaintiff’s medical malpractice claim pursuant to [Fed. R. Civ. P.] 56 because plaintiff’s experts admit there was no delay by Dr. Mathai.
Doc. Ent. 79.
On December 20, 2006, plaintiff filed a response to the motion. Doc. Ent. 84. Plaintiff
argues that (I) “the primary care physician’s late diagnosis and treatment of the plaintiff’s throat
cancer violate[d] the Eighth Amendment and the Michigan medical malpractice act[;]” (II)
“Correctional Medical Services’ policies and procedures, as implemented by its state medical
director, violate[d] the Eighth Amendment[;]” (III) “there are genuine issues of material fact as
to both [of these questions][;]” and (IV) “the plaintiff [has] complied with the state medical
malpractice act[.]”4 Doc. Ent. 84 at 3.5
4In support of his response, plaintiff has filed exhibits AU. Doc. Entries 84, 85, 86 & 89. On January 2, 2007, plaintiff filed the December 19, 2006 declarations of Bradford and Williams
6

Case 2:03-cv-75106-NGE-PJK Document 100 Filed 08/29/2007 Page 7 of 57
C. Applicable Law 1. Fed. R. Civ. P. 12 (“Defenses and Objections”)
Federal Rule of Civil Procedure 12 sets forth rules regarding defenses and objections. As to how defenses and objections should be presented, the rule states in pertinent part:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted[.] Federal Rules of Civil Procedure 12(b)(6). “If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed. R. Civ. P. 12(b). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-1965 (2007) (citations and quotations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint
regarding their expert reports. Doc. Entries 89-2, 89-3. 5Also pending before the Court is the MDOC defendants’
December 20, 2006, motion to dismiss. Doc. Ent. 87. I will address this motion in a separate report and recommendation.
7

Case 2:03-cv-75106-NGE-PJK Document 100 Filed 08/29/2007 Page 8 of 57
are true[.]” Bell Atlantic Corp., 127 S. Ct. at 1965 (citations and quotations omitted). It is not enough that “the pleadings [leave] open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts’ to support recovery.” Id. at 1968. “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 1970. “[W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. Claims should be “nudged . . . across the line from conceivable to plausible” to avoid dismissal. Id.
The reviewing court must construe the complaint in the light most favorable to plaintiff and must presume all factual allegations in the complaint as true. See Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The purpose of Rule 12(b)(6) is to give defendant the opportunity to test whether plaintiff is entitled to legal relief as a matter of law even if everything alleged in the complaint is true. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). A dismissal under Rule 12(b)(6) is generally disfavored by courts, as it is a dismissal on the merits. 2A JAMES W. MOORE, MOORE’S FEDERAL PRACTICE ¶ 12.07 (2d ed. 1995). 2. Fed. R. Civ. P. 56 (“Summary Judgment”)
Summary judgment, pursuant to Fed. R. Civ. P. 56, may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have [the] effect of establishing or refuting one of [the] essential elements of a cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principle[s] of law to the rights and obligations of the parties.
8

Case 2:03-cv-75106-NGE-PJK Document 100 Filed 08/29/2007 Page 9 of 57
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (citing Johnson v. Soulis, 542 P.2d 867, 872 (Wyo. 1975) (quoting BLACK’S LAW DICTIONARY 881 (6th ed.1979)). “In evaluating a motion for summary judgment we view all evidence in the light most favorable to Plaintiff . . . and assess the proof to determine whether there is a genuine need for trial.” Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1045 (6th Cir. 1998) (citations omitted).6
The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir. 1986). The moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, “the burden on the moving party may be discharged by ‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party discharges that burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine triable issue. Fed. R. Civ. P. 56(e); Gregg, 801 F.2d at 861.
“Although the nonmoving party ‘may not rest upon the mere allegations or denials’ of his pleading, Fed. R. Civ. P. 56(e), a verified complaint . . . satisfies the burden of the nonmovant to respond.” Thaddeus-X v. Blatter, 175 F.3d 378, 385 (6th Cir. 1999). “[A] verified complaint . . . would have the same force and effect as an affidavit and would give rise to genuine issues of material fact.” Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992). However, “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to
6The Sixth Circuit cited both Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) in support of this statement.
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the matters stated therein.” Fed. R. Civ. P. 56(e). See also Hamilton v. Roberts, No. 97-1696, 1998 WL 639158, *5 (6th Cir. Sept. 10, 1998) (unpublished) (personal knowledge required); Daniel v. Cox, No. 96-5283, 1997 WL 234615, *2 (6th Cir. May 6, 1997) (unpublished) (conclusory assertions are insufficient for purposes of surviving summary judgment); Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994) (citing Daily Press, Inc. v. United Press Int’l, 412 F.2d 126, 133 (6th Cir. 1969)) (cannot consider hearsay evidence).
“Demonstration of simply ‘metaphysical doubt as to the material facts’ is insufficient.” Kand Medical, Inc. v. Freund Medical Products, Inc., 963 F.2d 125, 127 (6th Cir. 1992), citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [non-movant’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 246-250 (citations omitted); see Celotex Corp., 477 U.S. at 322-23; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986). The standard for summary judgment mirrors the standard for a directed verdict under Fed. R. Civ. P. 50(a). Anderson, 477 U.S. at 250. Consequently, a non-movant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact. D. Analysis 1. Factual history
The factual allegations in plaintiff’s amended complaint span the period from Spring 2001 through April 17, 2003. Doc. Ent. 49 at ¶¶ 19-86. Each of the parties provides a lengthy
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recitation of the operative facts in the motion papers. Doc. Ent. 84 at 9-22, Doc. Ent. 79 at 1425. Unless otherwise noted, all references to exhibits in this section are those which accompanied plaintiff’s response. Doc. Entries 84, 85, 86 & 89 (Exhibits A-U).
On May 4, 2001, plaintiff was seen by Mathai and complained of a sore throat. Mathai recommended warm gargles twice daily and that plaintiff return in one month. Ex. C at 19, 21. On May 21, 2001 and June 26, 2001, the nursing staff gave plaintiff 30 day supplies of Motrin 600 mg in response to kites. Doc. Ent. 79 Ex. A-1 at 57-58, 318. By June 28, 2001, plaintiff was off of kosher diet line and on the regular diet line. Ex. C at 18, 21.
On July 11, 2001, RN Don Smith conducted plaintiff’s annual health screen during which it was noted that plaintiff had experienced a cold/sinus infection for 2-3 weeks. Ex. C at 18, 21; Ex. D at 3. Although there is a notation that plaintiff complained of a cough lasting more than three weeks, there is no indication that he was referred to an MSP. Ex. D at 3.
On August 3, 2001, plaintiff’s doctor appointment was cancelled. Ex. C at 17, 21. On August 18, 2001, plaintiff wrote to SMT health care seeking the status of his request for medical service. Ex. E at 1. On August 20, 2001, Mathai ordered a CBC, blood pressure monitoring and Drixoral. Doc. Ent. 79 Ex. A-1 at 56, A-2 at 321. On August 22, 24 & 28, 2001, plaintiff’s blood pressure was monitored. On two of these visits, he complained of a sore throat. Ex. C at 16. On August 29, 2001, Mathai reviewed plaintiff’s CBC results and ordered a repeat CBC. Doc. Ent. 84 Ex. A-1 at 55.
On August 31 and September 4, 2001, plaintiff’s blood pressure was monitored, and he mentioned a sore throat during both of these visits. Ex. C at 16, 22. On August 31, plaintiff completed a Health Care Request form noting that “it has become difficult and painful to
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swallow.” Ex. E at 2. On the same day he completed a Step I grievance form. Ex. E at 3. On September 5, 2001, MSP Chien noted that plaintiff’s throat was red. Ex. C at 15, 22. On September 11, 2001, Mathai noted in plaintiff’s chart that she would reassess him in one month. Ex. C at 15, 22.
On September 23, 2001, plaintiff wrote to Pramstaller mentioning his throat pain and difficulty with swallowing. Ex. E at 4. From October 1 through October 21, 2001, Mathai was on vacation leave. Doc. Ent. 79 at 16. On October 12, 2001, plaintiff saw Antonini, who suspected laryngeal / esophageal cancer. Ex. C at 13-14, 22. That day, Antonini ordered a barium swallow, a chest x-ray and blood work. Antonini also completed CMS authorization requests for ear, nose & throat and gastrointestinal consultations. These requests were approved on November 13th and November 19th, respectively. Ex. D at 9-11.
According to plaintiff, the barium swallow was scheduled for October 19, 2001, was postponed until October 31, 2001, and was again delayed “because of equipment failures or supply shortages at the facility.” Ex. 84 at 14, Ex. E at 5. On November 1, 2001, Mathai noted that plaintiff was being evaluated for weight loss. Ex. C at 12, 23. On November 2, 2001, CMS approved Antonini’s request for an ENT consultation. The appointment was scheduled for November 13, 2001. Doc. Ent. 79 Ex. A-2 at 200.
On November 3, 2001, plaintiff completed a Step I grievance form. Ex. E at 5-6. According to plaintiff, x-rays were performed on November 4, 2001 and the barium swallow and chest x-ray were performed on November 6, 2001. Doc. Ent. 49 ¶ 33; Doc. Ent. 84 at 15. In a November 13, 2001, clinic consultation, Kornak (ENT) noted lesions on both vocal cords and stated, “we need to do a microlaryngoscopy with cord stripping to examine him at Foote
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Hospital under general anesthesia as an outpatient.” Ex. D at 15. On November 14, 2001, Mathai signed Kornak’s specialty consult report recommending that the microlaryngoscopy take place within 2-3 weeks. Ex. D at 16. It was faxed to CMS on November 16, 2001. Doc. Ent. 79 at 17.
On November 16, 2001, Mathai signed the November 14, 2001 report of plaintiff’s CBC results, which indicated a high white blood count. Ex. D at 17. On November 19, 2001, plaintiff saw Sharma (GI). Ex. C at 10, Ex. E at 8, 12. On November 20, 2001, Mathai signed Kornak’s consultation. Ex. D at 15. On November 26, 2001, Kornak’s specialty consult report was faxed to CMS. Ex. D at 16.
Mathai’s November 26 & 28, 2001 notes indicate, among other things, that plaintiff was “being evaluated for any GI cancers[,]” and that an EGD was pending. Ex. C at 10, 23-24. On November 29, 2001, Mathai signed an offsite speciality referral 30 day followup form. Ex. D at 21. On December 5, 2001, CMS approved the microlaryngoscopy. Ex. D at 22. On December 7, 2001, the authorization was faxed to MDOC Patient Services. Doc. Ent. 79 at17. The procedure was scheduled for January 11, 2002. Doc. Ent. 79 at A-2 at 193.
On December 6, 2001, Pramstaller responded to plaintiff’s September 23, 2001 letter. Ex. E at 7. The Step I grievance response to SMT-01-11-01478-12D was dated December 8, 2001 and noted plaintiff’s November 13, 2001 visit with Kornak and November 19, 2001 visit with Sharma. Ex. E at 8. Plaintiff’s December 3, 2001 Step II appeal of SMT-01-11-0147812D was received on December 4, 2001. Ex. E at 9-10.
On December 12, 2001, Mathai signed the December 10, 2001, report of plaintiff’s CBC results. Ex. D at 23. Plaintiff was interviewed by Nursing Supervisor Lee on December 12 or
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17, 2001 regarding his November 3, 2001 grievance. Doc. Ent. 84 at 17; Ex. E at 8, 12. On or about December 25, 2001, plaintiff completed a Step III grievance appeal. Ex. E at 13-14.
On January 2, 2002, Mathai noted plaintiff’s blood pressure in his medical chart. Ex. C at 9, 24. On the same day, Mathai signed an offsite speciality referral 30 day followup form, which noted that plaintiff was scheduled for vocal cord stripping on January 11, 2002 and that the EGD was pending. Ex. D at 24. On January 11, 2002, plaintiff was admitted to Foote Hospital for microlaryngoscopy and cord stripping. Ex. D at 25-26. Kornak performed the procedure. Ex. D at 46. Devaney’s surgical pathology report notes “[i]nvasive and in-situ moderately differentiated keratinizing squamous carcinoma.” Ex. D at 28-29.
On January 14, 2002, “lab tests confirmed that [plaintiff] had a malignant tumor on his larynx.” Doc. Ent. 49 ¶ 45. He was diagnosed with “Stage I invasive and in-situ moderately differentiated keratinizing squamous carcinoma on his left vocal cord.” Doc. Ent. 49 ¶ 47. On January 16, 2002, Mathai reviewed Kornak’s January 11, 2002 specialty consult report. Apparently, the report was faxed to CMS the following day. Doc. Ent. 79 Ex. A-2 at 192.
Kornak’s January 22, 2002 clinic consultation notes that “the patient needs to go to radiotherapy for treatment planning. We will see him after his radiation therapy.” Ex. D at 30. The same day, Kornak completed a specialty consult report for referral to radiation / oncology at Foote. Plaintiff was approved for a radiation / oncology consult the same day, and an appointment was scheduled for February 5, 2002. Ex. D at 31. Plaintiff claims that he was informed by Kornak on January 22, 2002 he had Stage I laryngeal cancer. Doc. Ent. 49 ¶ 50.
On January 24, 2002, Epp responded to plaintiff’s Step II grievance appeal. Ex. E at 10, 12. On the same day, plaintiff wrote to SMT health care and included a copy of an authorization
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to release medical file information. Doc. Ent. 79 Ex. A-2 at 284. On January 27, 2002, plaintiff wrote to the Office of the MDOC Director regarding his December 25, 2001 Step III grievance appeal in SMT-01-11-01478-12d. Ex. E at 13.
On January 28, 2002, plaintiff completed a health care request form stating that he had not been advised regarding treatments. On January 29, 2002, a nurse replied that plaintiff’s treatment had been approved, a date was not yet set, but treatment would be scheduled soon. Ex. E at 15.
On January 30, 2002, Mathai called patient services and left a message to schedule plaintiff’s radiation appointment for that week and noted that plaintiff should return to the clinic in three weeks. Ex. C at 7. On the same day, Mathai completed an off formulary medication request for Ultram. Ex. D at 35. She also completed physician’s orders for Ultram, resource, and dietary consult. Ex. D at 36. Furthermore, she signed Kornak’s January 22, 2002 specialty consult report. Ex. D at 34.
On February 4, 2002, plaintiff completed a health care request form stating that he was still waiting for his radiation treatments. On February 5, 2002, a nurse replied that Mathai had requested that radiation treatments begin (and an appointment was scheduled for that day) and pain medication be approved. The reply also noted that plaintiff’s resource was available in the pill line. Ex. E at 16. Also on February 5, 2002, Epp’s January 24, 2002 Step II grievance response was returned to plaintiff. Ex. E at 10.
On February 5, 2002, plaintiff was admitted to Foote Hospital for a radiation / oncology consultation. Ex. D at 42. The U of M radiation oncologist’s (Dr. James Hayman)7 report notes,
7Defendants claim that Hayman was covering for Tsien and that both are radiation oncologists at U of M Hospital. Doc.
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“[a]ssuming that the patient does in fact have a stage I larynx cancer we would recommend treatment with radiation therapy to be given with curative intent.” Ex. D at 43. It further notes that “[a]rrangements will be made for the patient to return for treatment planning and to begin treatment soon thereafter.” Ex. D at 44. Hayman completed a specialty consult report the same day, recommending a follow up visit in 1-2 weeks. Mathai signed the report on February 8, 2002, and the MDOC faxed it to CMS on February 11, 2002. Ex. D at 45; Doc. Ent. 79 at 20. On February 12, 2002, CMS approved radiation for seven weeks and simulation. Ex. D at 48.
On February 13, 2002, Tsien recommended a CT scan of the head and neck “ASAP.” Doc. Ent. 79 Ex. A-2 at 188. On February 13, 2002, Foote Hospital oncologists submit a speciality consult report for a CT scan of the head and neck, “ASAP”. Ex. D at 49, Doc. Ent. 84 at 20. CMS’s February 12, 2002 authorization was faxed to MDOC Patient Services on February 19, 2002. Doc. Ent. 79 at 20. Patient services scheduled the simulation for treatment for March 12, 2002 and the radiation for March 19, 2002. Ex. D at 48.
On February 22, 2002, Mathai saw plaintiff but did not have his chart, because it was out for plaintiff’s January 24, 2002, FOIA request. Ex. C at 6, 26; Doc. Ent. 79 at 21, Ex. A-2 at 284. On February 25, 2002, plaintiff completed a health care request form stating that his treatments had not begun that day. On February 26, 2002, a nurse noted that his radiation was to start the following week. Ex. D at 51; Doc. Ent. 49 ¶ 55. On February 28, 2002, Mathai signed Hayman’s February 5, 2002 radiation oncology consultation. Ex. D at 52-54.
Mathai was on maternity leave from March 8 or March 9, 2002 to May 15, 2002. Doc. Ent. 79 at 21; Doc. Ent. 84 at 20. On March 8, 2002, Dr. Marcella Clark completed a CMS
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authorization request for an “urgent” head and neck CT scan. Ex. D at 55. On March 12, 2002, plaintiff went to Foote Hospital for larynx cancer therapy planning. Ex. D at 61-62. Tsein performed the CT treatment and simulation. Doc. Ent. 79 Ex. A-1 at 169. The radiologist, Dr. Michael Shanks, noted that “[t]umor appears to involve the larynx on the left with extension into the epiglottis.” Ex. D at 61-62. The CMS authorization request for the head and neck CT scan was faxed to CMS on March 13, 2002 and was approved the same day. Ex. D at 55, 64. On March 14, 2002 it was faxed to MDOC Patient Services. The head and neck CT scan was scheduled for April 1, 2002. Doc. Ent. 79 at 21. On March 18, 2002, Tsien completed a specialty consult report for a head and neck MRI. She noted it was urgent and marked the recommendation “*Stat*”. Ex. D at 67. A diagnostic exam order form of the same date also lists the request for the head and neck MRI as “URGENT-ASAP”. Ex. D at 68.
On March 21, 2002, Bey completed a specialty consult report noting that radiation treatment was to be rescheduled after plaintiff’s MRI and that authorization for the MRI was still pending. Ex. D at 69. Bey also filled out a CMS authorization request for a neck MRI which was faxed to CMS that day. An appointment was scheduled for March 27, 2002. Ex. D at 6971. On March 25, 2002, Bey completed a CMS authorization request for chemotherapy to begin March 28, 2002. It was faxed to CMS. CMS approved the request on March 26, 2002, and an appointment was scheduled for March 28, 2002. Ex. D at 73, 75.
On March 26, 2002, plaintiff completed a health care request seeking an explanation for why his treatments did not begin on March 19, 2002. On March 27, 2002, the nurse noted that plaintiff’s treatment would begin soon. Ex. E at 17. On March 27, 2002, plaintiff was examined at Foote Hospital for cancer of the larynx with epiglottic and pharyngeal extension, at which
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time an MRI of the neck was performed by radiologist Dr. James Heisel. Ex. D at 76, 81-82; Doc. Ent. 49 ¶ 58; Doc. Ent. 79 Ex. A-2 at 498-499.
On March 28, 2002, plaintiff saw Dr. John A. Axelson of the Duane L. Waters Hospital. Doc. Ent. 79 Ex. A-1 at 157. That same day, Axelson completed a hematology oncology specialty consult report, and it was faxed to CMS that day. On March 29, 2002, CMS approved the request for a consultation with Kornak. An appointment was scheduled for April 2, 2002. Bey signed the report on April 1, 2002. Ex. D at 79-80.
Plaintiff claims that by April 1, 2002, “his throat cancer had advanced from Stage I (the original January diagnosis) to Stage III T2N1.” Doc. Ent. 49 ¶ 60. In an April 1, 2002, radiation oncology interval note, Tsien noted that plaintiff had “Stage III T2N1 squamous cell carcinoma of the left true vocal cord.” Ex. D at 85. That same day, Axelson completed a specialty consult report. Plaintiff was approved to be admitted for chemotherapy, and his appointment was scheduled for April 2, 2002. Doc. Ent. 79 Ex. A-1 at 156. On April 2, 2002, plaintiff was admitted to Foote Hospital “for placement of PEG tube and starting of chemotherapy and radiation therapy.” Doc. Ent. 79 Ex. A-2 at 391. On April 2, 2002, plaintiff’s chemotherapy began. Doc. Ent. 49 ¶ 65.
On April 3, 2002, plaintiff’s daily radiation treatment began. Doc. Ent. 49 ¶ 66. Kulkarni performed placement of a PEG tube. Ex. D at 88; Doc. Ent. 49 ¶ 70. On April 4, 2002, Dr. Booth performed a dental extraction. Ex. D at 88. This tooth loss allegedly caused a partial denture to fail in August 2002. Doc. Ent. 49 ¶ 71. On April 10, 2002, Kulkarni performed an incision and drainage of a PEG tube related abscess. Ex. D at 88.
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On April 16, 2002, plaintiff was discharged from Foote Hospital. Ex. D at 88. His discharge diagnosis included (1) “[l]ocally advanced cancer of the larynx with regional extension and lymph node metastasis[;]” (2) “[m]alnutrition requiring PEG tube insertion for feeding[;]” and (3) “[c]arious teeth requiring extraction.” His discharge medications included enteral feeding, Ancef, Ultram, nystatin, Neosporin and albuterol nebulized mist treatments. Ex. E at 89.
Plaintiff began his second course of chemotherapy on May 2, 2002. Doc. Ent. 49 ¶ 73. On May 20, 2002, Mathai saw plaintiff. Doc. Ent. 79 Ex. A-1 at 33. Plaintiff’s daily radiation treatment ceased on May 23 or May 24, 2002. Doc. Ent. 49 ¶ 74; Doc. Ent. 79 Ex. A-1 at 108, 122. Tsien dated a radiation oncology summary note on June 6, 2002, in which she noted that plaintiff “was scheduled for his last cycle of chemotherapy as an inpatient.” Doc. Ent. 79 Ex. A1 at 108.
Plaintiff began his third course of chemotherapy on June 10, 2002. Doc. Ent. 49 ¶ 75. On June 10, 2002, Heisel performed an MRI of the neck, noting that “[t]he tumor involvement appears to have diminished by approximately 50%.” Doc. Ent. 79 Ex. A-2 at 346.
Defendants claim that Kornak conducted a microlayngoscopy and biopsy of arachnoid and right false cord on June 13, 2002, and that “[n]o evidence of a tumor was found.” Doc. Ent. 79 at 23.8 On July 22, 2002, Tsien noted that plaintiff was “stable with no evidence of recurrent disease.” Doc. Ent. 79 Ex. A-1 at 96. On August 27, 2002, Kornak did not “see any evidence of recurrence in the neck.” Doc. Ent. 79 Ex. A-1 at 85. On September 30, 2002, Mathai noted that plaintiff’s sore throat “has resolved completely.” Doc. Ent. 79 Ex. A-1 at 19. On November 5,
8Defendants claim evidence of this is attached at Doc. Ent. 79 Ex. A at 112. However, the record goes from 108 to 116.
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2002, plaintiff saw Kornak, and he recommended a prompt follow-up biopsy and vocal cord stripping. Doc. Ent. 49 ¶ 79. On April 17, 2003, a biopsy and vocal cord stripping were performed, and the biopsy was negative. Doc. Ent. 49 ¶ 80. 2. As an initial matter, the Court should dismiss plaintiff’s state law claims for gross
negligence, reckless indifference, and willful and wanton misconduct. Plaintiff’s December 13, 2004 amended complaint alleges claims of gross negligence, reckless indifference, and willful and wanton misconduct. Doc. Ent. 49 at ¶¶ 97-101. The CMS defendants argue that “[p]laintiff fails to state a claim against defendants Mathai and/or Hutchinson for negligence, gross negligence, ‘Reckless indifference,’ and/or willful and wanton misconduct, upon which relief may be granted[,]” because “[p]laintiff’s claim sounds in medical malpractice, not ordinary negligence or gross negligence[,]” and “[t]here is no independent claim for ‘reckless indifference’ or ‘willful and unwanton misconduct’ separate from plaintiff’s deliberate indifference claim upon which relief may be granted.” Doc. Ent. 79 at 33-36. In his response to the instant dispositive motion, plaintiff agrees that his state law negligence, gross negligence and willful and wanton misconduct claims “are subsumed under the medical malpractice statute and can be dismissed.” Doc. Ent. 84 at 8 n.2. Therefore, the Court should enter an order dismissing these claims from plaintiff’s December 13, 2004, amended complaint. 3. The Court should conclude that plaintiff’s Eighth Amendment claims against the CMS defendants survive summary judgment. a. Plaintiff’s amended complaint also sets forth a 42 U.S.C. § 1983 claim based upon the Eighth Amendment. Doc. Ent. 49 at ¶¶ 87-96. Among other allegations, plaintiff contends that “[t]he defendant doctors demonstrated deliberate indifference by failing to diagnose [plaintiff’s]
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throat cancer within a reasonable time, by failing to confirm their suspicions (through laboratory tests) that he had cancer within a reasonable time, and, when [his] cancer was diagnosed, by failing to treat him within a reasonable time.” Doc. Ent. 49 ¶ 88. Plaintiff alleges that “[e]ven after treatment, the defendant doctors demonstrated deliberate indifference by failing to test [plaintiff] for recurrence of his cancer within a reasonable time.” Doc. Ent. 49 ¶ 89.
Plaintiff’s amended complaint states that Hutchinson “helps to formulate and implement the customs, policies, practices and procedures, and staff training related to medical care in MDOC facilities.” Doc. Ent. 49 ¶ 10. Within his claim of deliberate indifference, plaintiff alleges that “[t]he violation of [his] Eighth Amendment rights stemmed in part from the MDOC defendants and Hutchinson’s customs, practices, procedures and policies that allowed or facilitated care that was deliberately indifferent, wanton, oppressive, or reckless.” Doc. Ent. 49 ¶ 91. Plaintiff further alleges that “the defendants with the authority to create customs or policies failed to draft, promulgate, adopt, or enforce appropriate rules, regulations, procedures, orders, or protocols that could and should have prevented the acts of deliberate indifference committee against Mr. Broder, and that also could and should have prevented the injuries he suffered.” Doc. Ent. 49 ¶ 92.
The CMS defendants argue that they “were not deliberately indifferent to plaintiff’s serious medical needs, therefore, plaintiff’s claim pursuant to 42 [U.S.C. §] 1983 must be dismissed pursuant to [Fed. R. Civ. P.] 56[,]” because “[t]here was no personal involvement by Dr. Hutchinson[,]” and “Dr. Mathai was not deliberately indifferent.” Doc. Ent. 79 at 27-33. b. With respect to Mathai, defendants argue that “[p]laintiff’s claims amount to nothing more than a difference in medical opinion that his diagnosis of laryngeal cancer should have
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occurred sooner, his specialty consultations completed sooner, and his cancer treatment initiated sooner[.]” Defendants contend that plaintiff cannot satisfy the subjective component of an Eighth Amendment deliberate indifference claim, because “[t]here is not evidence that Dr. Mathai, being aware of Mr. Broder’s laryngeal cancer, acted with deliberate indifference to its diagnosis, need for specialty consultations, and/or treatment.” Doc. Ent. 79 at 32. Noting Williams’s testimony that “I don’t think [Mathai] intentionally withheld treatment in the sense of an explicit decision to withhold treatment she felt was indicated, she didn’t do that[,]” and “she didn’t make an explicit decision to bring harm to Mr. Broder[,]” Doc. Ent. 79-18 at 16, defendants contend that Mathai “did not act to intentionally delay Plaintiff’s medical care and treatment for laryngeal cancer. Plaintiff received excellent care, and is now cured, end of story.” Doc. Ent. 79 at 33.
It is plaintiff’s position that as of August 20, 2001, defendant Mathai “suspected that Mr. Broder had cancer.” Doc. Ent. 84 at 7. With respect to that visit, Mathai testified: “I was wanting to make sure that his weight loss was not because of any underlying medical problem, any medical disease, so I ordered the basic chest x-ray and made sure he wasn’t bleeding or, you know, colon cancer.” Ex. H at 48. She was also concerned that plaintiff’s weight loss might be the result of pulmonary disease such as TB or lung cancer. Ex. H at 48-49. Furthermore, the following was her reasons for giving plaintiff a rectal exam: “Because the patient hadn’t had a rectal exam, and so I did one. One of the things we look at in the rectal exam is to make sure that there are no masses present, there’s no prostate problems and there’s no blood in the stool. It will again indicate that if a patient had lost weight due to colon cancer, he would have had some blood in the stool or something. It’s a screening test for that.” Ex. H at 49.
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Plaintiff’s Eighth Amendment claim against Mathai is that “the failure of care was the fault of the PCP [Mathai] who failed to coordinate and to monitor his care, as well as the fault of the MDOC-CMS system, which all but guaranteed the late diagnosis and treatment.” Doc. Ent. 84 at 7. Plaintiff claims that Mathai is “sued for what she did and what she did not do from the summer of 2001 to March 2002.” Doc. Ent. 84 at 8.
Plaintiff contends that there are questions of fact. To begin, plaintiff contends that “[a] reasonable jury could find either (1) that Dr. Mathai did not suspect cancer and lied in her deposition to cover up her mistake - when in fact she only did a routine prostate exam and only ordered the chest x-ray because of Mr. Broder’s high WBC count, or (2) that if Dr. Mathai suspected cancer, her failure to chart her suspicions, and her failure to procure the chest x-ray, and her failure to discover that the chest x-ray was never performed, and her failure to have a process in place to catch such a mistake if it occurred, all evidence deliberate indifference under the Eighth Amendment and/or medical negligence under state law.” Doc. Ent. 84 at 11.
Also, in his August 18, 2001 letter, plaintiff mentioned two areas of concern which arose during his health screening - sinus drainage and a sore throat and drastic weight loss. Ex. E at 1. Plaintiff contends that “[a] reasonable jury could find that a patient who took the time to write down his symptoms two days before a visit to his PCP would describe those symptoms to her . . . despite the incomplete entry in the medical record.” Doc. Ent. 84 at 12. Plaintiff also notes Norman’s agreement that “[w]hen the information in that kite relates to the prisoner’s medical condition, [he would] expect the information in the kite to make it into the medical record itself[.]” Ex. O at 44-45. However, plaintiff points out that the information from the August 31, 2001 kite was not added to the patient’s medical record. Doc. Ent. 84 at 12. The August 31,
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2001 entry states, “sore throat still, otherwise asymptomatic.” Ex. C at 16, 22. Furthermore, plaintiff contends that “based on what Mr. Broder says he told his doctor, and based on the letter he wrote on 8/18/01, the kite he submitted on 8/31/01, the grievance of 8/31/01[,] and the followup clinic visits, a reasonable jury could find that Dr. Mathai had all the information she needed to make a differential diagnosis of throat cancer and to screen for it.” Doc. Ent. 84 at 13.
Additionally, plaintiff contends that “[a] reasonable jury could find that as of 11/1/01, Dr. Mathai did not know that Mr. Broder was being evaluated for cancer, because she only looked at the chart in a cursory way. A reasonable jury could find that a doctor who knew that her patient had been ‘urgently’ referred to specialists for testing for throat or stomach cancer would not refer to the problem as ‘currently being evaluated for weight loss’ and would not list her sole followup task as repeating the routine lab work for the (unrelated) elevated white blood count.” Doc .Ent. 84 at 15. Also, plaintiff contends that “a reasonable jury could find that [Mathai] was unaware for a time that Dr. Antonini had even ordered the tests[,]” and “[a] reasonable jury could find that by these acts and omissions Dr. Mathai violated Mr. Broder’s right to be free from cruel and unusual punishment, and that she committed medical malpractice.” Doc. Ent. 84 at 18.
Plaintiff argues that from October 12, 2001 (the date of plaintiff’s appointment with Antonini) to January 11, 2002 (the date of plaintiff’s microlaryngoscopy and cord stripping) Mathai did not do anything with CMS or specialists to accelerate plaintiff’s appointments/results. Doc. Ent. 84 at 17. Mathai did sign Henderson’s October 19, 2001 radiology report that “[n]o active pulmonary disease was seen[,]” and there was a “[s]mall sliding hiatal hernia.” Ex. D at 12. She also signed the October 25, 2001 report of plaintiff’s lab
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results. Ex. D at 13. However, plaintiff notes that on November 13, 2001 the ENT ordered a biopsy to take place within 2-3 weeks, in other words by December 4, 2001. Mathai signed this request on November 14, 2001. Ex. D at 16, 22; Doc. Ent. 84 at 18. Furthermore, on November 16, 2001 she signed the November 14, 2001 report of plaintiff’s lab results, and on November 20, 2001, she signed Kornak’s November 13, 2001 clinic consultation. Ex. D at 17, 15. On November 29, 2001, she signed an offsite specialty referral 30 day followup form. Ex. D at 21. On December 12, 2001, Mathai signed the December 10, 2001 report of plaintiff’s lab results. Ex. D at 23. On January 2, 2001 she signed another offsite speciality referral 30 day followup form. Ex. D at 24. Ultimately, the microlaryngoscopy with cord stripping did not take place until January 11, 2002.
In his argument specifically directed toward the Eighth Amendment claim against Mathai, plaintiff notes Williams’s testimony that Mathai “signed many of [the documents], and yet the work up was proceeding at a snail’s pace.” Ex. M at 54. Also, plaintiff directs the Court’s attention to Norman’s testimony that he agreed “if the period of time for the scheduling exceeds what either the doctor thought was appropriate or what the specialist wrote was appropriate, then it remains incumbent upon the doctor to find out why there’s a delay[.]” Doc. Ent. 86 Ex. O at 66. Furthermore, Pramstaller, over defense counsel’s objection, agreed that it is “fair to say that it’s the assigned doctor’s job to make sure that the patient gets the treatment that the patient needs[.]” Doc. Ent. 85 Ex. F at 15. Additionally, Williams testified that “[i]n most primary care setting, [the primary responsibility for how follow-up care is scheduled and received] falls to the primary care provider.” Doc. Ent. 85 Ex. M at 54. Plaintiff contends that
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“[g]iven the system of patient care at [SMT] in 2001-02, a reasonable jury could find that only
the PCP was in a position to coordinate and monitor [plaintiff’s] care.” Doc. Ent. 84 at 23.
The case law cited by plaintiff is also persuasive. Doc. Ent. 84 at 23-24. In support of
his argument that “[w]here a doctor knows the nature and duration of the plaintiff’s condition,
and knows that the plaintiff requires medical attention, and fails to take steps to ensure timely
diagnosis and treatment, the Eighth Amendment standard is met[,]” Doc. Ent. 84 at 23, plaintiff
cites Blackmore v. Kalamazoo County, 390 F.3d 890, 896 (6th Cir. 2004);9 Boretti v. Wiscomb,
930 F.2d 1150, 1154 (6th Cir. 1991)10 and Parrish v. Johnson, 800 F.2d 600, 610 (6th Cir. 1986).11
Doc. Ent. 84 at 23-24.
9“[A] reasonable jury could conclude that Defendants were ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and the Defendants ignored that risk.’” Blackmore v. Kalamazoo County, 390 F.3d 890, 896 (6th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “[W]here a plaintiff's claims arise from an injury or illness ‘so obvious that even a layperson would easily recognize the necessity for a doctor's attention,’ Gaudreault [v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990)], the plaintiff need not present verifying medical evidence to show that, even after receiving the delayed necessary treatment, his medical condition worsened or deteriorated.” Blackmore, 390 F.3d at 900.
10“The fact that the wound did not become infected and healed properly does not indicate that plaintiff did not endure physical pain and mental anguish during the time he was denied any dressings for the wound or pain medication. This court has indicated that such suffering may constitute cruel and unusual punishment within the meaning of the Eighth Amendment.” Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991).
11“The numerous types of tortious conduct and resultant injuries which the Eighth Amendment redresses militate heavily against our adopting an actual injury standard, because we simply cannot be certain that an actual injury requirement would be reflective of the common law or an appropriate prerequisite to obtaining damages in every situation.” Parrish v. Johnson, 800 F.2d 600, 610 (6th Cir. 1986).
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Furthermore, in support of his argument that “an Eighth Amendment claimant need not
show that a prison official acted or failed to act believing that harm actually would befall an
inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial
risk of serious harm[,]” plaintiff cites Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002).12 As plaintiff argues, “[i]t is hard to imagine a patient with a more
obvious risk than Mr. Broder - a patient whose own doctor says that she thought he had cancer
on [August 20, 2001], but who failed to get a confirmed diagnosis for five months, and failed to
start treatment for 7 ½ months.” Doc. Ent. 84 at 24.
In light of the foregoing, the Court should agree with plaintiff that a reasonable jury
could find that “Mathai thought that her patient had cancer but did not get him timely diagnosed
or treated[,]” and that “the need for care was objectively obvious.” Doc. Ent. 84 at 25 (citing Estate of Carter v. City of Detroit, 408 F.3d 305, 312 (6th Cir. 2005) (“If an officer fails to act in
the face of an obvious risk of which he should have known but did not, the officer has not
violated the Eighth or Fourteenth Amendments.”) (citations and quotations omitted).
c. As to Hutchinson, defendants contend that, in addition to a lack of personal involvement,
“[p]laintiff has never identified any official policy or procedure officially adopted by Dr.
Hutchinson or any one else and relied on by one or more persons that resulted in harm to
12“‘Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence ... and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.’” Terrance, 286 F.3d at 843 (6th Cir. 2002) (quoting Farmer, 511 U.S. at 842). “‘When the need for treatment is obvious, medical care which is so cursory as to amount to no treatment at all may amount to deliberate indifference.’” Terrance, 286 F.3d at 843-844 (citing Mandel v. Doe, 888 F.2d 783, 789 (11th Cir.1989)).
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Plaintiff.” Doc. Ent. 79 at 28-29. Defendants contend that each time plaintiff was referred for a specialty consultation, a timely request was sent to CMS, an appointment was scheduled and the consultation was completed. In other words, they argue, “Plaintiff has failed to show any specific policy of Dr. Hutchinson on behalf of himself or CMS that deprived Plaintiff of a constitutional right, or in deliberate indifference to a serious medical need.” Doc. Ent. 79 at 29.
Plaintiff claims that Hutchinson is “sued because he was the medical director of the contract provider of health care services for all Michigan prisoners; at all relevant times he was responsible for the policies and practices governing Mr. Broder’s care.” Doc. Ent. 84 at 8.13 In plaintiff’s own words, “[t]he claim against Dr. Hutchinson is that the procedures at [SMF] in 2001-2002 were constitutionally deficient.” Citing Mathai’s discussion of the procedure involved with a CMS Authorization Request (a.k.a. 407), Ex. H at 72-75, plaintiff claims that “at every phase of the case - over and over again - it was impossible to get urgent care on time.” Citing the December 7, 2006 Hadix findings of fact and conclusions of law, Ex. Q, plaintiff claims that follow up care required the same steps to be repeated. Doc. Ent. 84 at 28. Plaintiff also cites Mathai’s deposition testimony, over defense counsel’s objection, that during the period from April 1, 2001 to April 1, 2002, she did not recall the person scheduling the 407 appointments once approved by CMS consulting with her. Ex. H at 79, Doc. Ent. 84 at 28. Plaintiff claims that “[t]o get timely urgent care, the doctors had to take extra measures (like
13As plaintiff stated in his response, “Broder has treated the claim against Dr. Hutchinson as arising only under the Eighth Amendment, for constitutionally deficient policies and practices and/or training and supervision.” Doc. Ent. 84 at 36 n.17. They further state that “a state law [medical malpractice] claim . . . arguably could not go forward as to [defendant Hutchinson], for lack of meeting that statutory requirement.” Doc. Ent. 84 at 39 n.18.
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personally calling the scheduling office), or had to violate protocol (like doing a test without approval and getting it after the fact).”
In the event nothing happened, plaintiff claims, “there were no procedures in place to catch and/or correct the problem. The only ‘tickler’ system was to re-schedule the patient for a clinic visit in 30-60 days. That meant that the problem typically would not come to the attention of the PCP until the time for results had long-since passed.” Doc. Ent. 84 at 29. As Hutchinson testified “that’s the way the system is set up, for every thirty day visits. If [the MSP] had elected to see [the patient] sooner than that [the MSP] would have had that ability. But the system is set up to bring the patient back every thirty days. And it’s a one size fit all thirty days. It’s not varying by the nature of the problem.” Doc. Ent. 85 Ex. I at 76-77. Noting in part Tsien’s testimony that “[a]s a primary treating physician concerning Mr. Broder’s laryngeal cancer, . . . [she] can order the tests in a timely fashion and ensure that they’re requested in a timely fashion, but [she] can’t bring the patient to [her] office[,]” Ex. L at 19, plaintiff argues that “[a] reasonable jury could conclude that in 2001-02 the system for specialty care scheduling was dysfunctional, and that Dr. Hutchinson knew it and did nothing[.]” Doc. Ent. 84 at 30.
Another systemic problem, plaintiff argues, is that “none of the written information from the patient was recorded in a way to be of use to the PCP.” Doc. Ent. 84 at 30. Again, plaintiff also notes Norman’s agreement that “[w]hen the information in that kite relates to the prisoner’s medical condition, [he would] expect the information in the kite to make it into the medical record itself[.]” Ex. O at 44-45. Furthermore, over defense counsel’s objection, Norman stated that “[i]t could indicate a breakdown in that system[,]” “if the information that the patient has written into the request doesn’t make it into the medical record and it’s important information[.]”
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Ex. O at 45. According to plaintiff, “[n]o information from Mr. Broder ever found its way into his file, despite a steady stream of detailed kites [such as the health care requests dated August 31, 2001, January 28, 2002, February 4, 2002, February 25, 2002 and March 26, 2002], letters [such as those dated August 18, 2001 and September 23, 2001], and grievances all saying the same thing.” Therefore, plaintiff argues, “[a] reasonable jury could find that the kite system was also dysfunctional.” Doc. Ent. 84 at 31.
Furthermore, plaintiff argues that, citing the October 29, 2002 findings of fact and conclusions of law in the Hadix litigation, “[t]he delays in Mr. Broder’s diagnosis and treatment were not aberrations, but were part of a systemic failure of care with which Dr. Hutchinson was all too well-acquainted.” Doc. Ent. 84 at 31-32. Plaintiff contends that “[t]he Hadix court’s findings of fact and conclusions of law are powerful evidence in support of Mr. Broder’s claim that the delays in his case were proximately caused by flaws in the health care system.” Doc. Ent. 84 at 33. Although Hutchinson stated in his May 11, 2005 deposition that “services are better and delivered more timely now[,]” Ex. I at 63, plaintiff contends that the December 7, 2006 findings of fact and conclusions of law in Hadix find “the system to be constitutionally deficient.” Doc. Ent. 84 at 33. Plaintiff maintains that “[t]he Hadix case provides the strongest possible evidence, because it shows that Mr. Broder’s late diagnosis and treatment were not isolated or aberrational events, and that Dr. Hutchinson had detailed knowledge of the system’s shortcomings.” Doc. Ent. 84 at 33. Specifically, plaintiff points to a paragraph from the Hadix court’s December 7, 2006 findings of fact and conclusions of law on specialty care stating that “[b]oth the persuasive testimonies of Dr. Cohen and Dr. Walden demonstrate clearly and beyond peradventure that the specialty referral process is ‘profoundly deficient.’” Ex. Q ¶ 110.
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It is also worth mentioning Williams’s opinion that the processes involved in this case were “[w]ay too slow.” Doc. Ent. 84 at 23; Ex. M at 18. Plaintiff’s arguments are persuasive. Therefore, the Court should agree that “where another federal district court has already concluded that the policies, procedures, and health care systems in place at [SMT] in 2001-02 violated the Eighth Amendment, this Court cannot grant summary judgment on the grounds that there is no genuine issue of material fact that they did not.” Doc. Ent. 84 at 34. 4. The Court should conclude that plaintiff’s negligence and medical malpractice
claim against Mathai survive summary judgment. Plaintiff’s claim of negligence and medical malpractice alleges defendants’ duty (¶¶ 102109), the standard of care (¶¶ 110-117), breaches (¶¶ 118-125) and damages (¶¶ 126-131). Doc. Ent. 49. As plaintiff has clarified, “Dr. Mathai is the only defendant against whom the [medical malpractice] claim runs.” Doc. Ent. 84 at 36 n.17. a. Defendants are not entitled to summary judgment on their procedural challenges to plaintiff’s medical malpractice claim. i. The CMS defendants argue that “[p]laintiff’s amended complaint fails to state a claim of medical malpractice upon which relief may be granted and must be dismissed pursuant to [Fed. R. Civ. P.] 12(b)(6)[,]” because “[p]laintiff did not file an affidavit of merit[,]” “[p]laintiff’s [NOI] . . . does not comply with [Mich. Comp. Laws §] 600.2912d[,]” “[p]laintiff’s affidavits of merit fail to set forth the required elements in order to certify the merit of plaintiff’s claims[,]” and “[p]laintiff’s NOI and/or affidavit of merit fail to sufficiently specify the element of proximate cause pursuant to [Mich. Comp. Laws §] 600.2912b(4) and/or [Mich. Comp. Laws §] 600.2912d(1)(d).” Doc. Ent. 79 at 36-50.
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ii. Mich. Comp. Laws § 600.2912b governs, among other things, written notice
requirements in a medical malpractice action. In pertinent part, the statute provides:
The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.
(f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim.
Mich. Comp. Laws § 600.2912b(4).
Mich. Comp. Laws § 600.2912d governs the duty of a plaintiff in a medical malpractice
action to furnish security or file an affidavit. Specifically, it provides:
. . . the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff's attorney concerning the allegations contained in the notice and shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
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(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care. (d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. Mich. Comp. Laws § 600.2912d(1) (footnote omitted).
iii. First, defendants argue that plaintiff did not file an affidavit of merit; therefore his claim
for medical malpractice in Count III of the first amended complaint must be dismissed under Fed. R. Civ. P. 12(b)(6). Doc. Ent. 79 at 36-40. Affidavits of merit were filed on December 24, 2003, along with original complaint. Doc. Ent. 3 at 15-18 (Williams Dec. 9, 2003), 19-22 (Bradford Dec. 12, 2003). In part, defendants rely upon the unpublished cases of DeMann v. Ottawa County Sheriff’s Division, 2001 U. S. Dist. LEXIS 19260 (W. D. Mich. Nov. 13, 2001)14 and Judd v. Heartland Health Care Center - Georgian East, No. 01-CV-73837-DT, 2001 WL 1680124 (E. D. Mich. Dec. 21, 2001) (Duggan, J.).15 Doc. Ent. 79 at 36.
Defendants argue that plaintiff should have filed an affidavit of merit with its amended complaint. In support of this argument, defendants primarily rely upon Nippa v. Botsford General Hospital, 251 Mich. App. 664, 651 N.W.2d 103 (2002), vacated, 468 Mich. 882, 661 N.W.2d 231 (2003), remanded to 257 Mich. App. 387, 668 N.W.2d 628 (2003), appeal denied, 469 Mich. 1005, 673 N.W.2d 747 (2004). In Nippa, the original complaint, filed against “Botsford General Hospital Group,” was accompanied by an affidavit of merit; but the first
14“It is clear that plaintiff has not filed the required notice or affidavit of merit. Under Michigan law, the case against Dr. Rooks must therefore be dismissed without prejudice.” DeMann, 2001 U. S. Dist. LEXIS 19260 at *10.
15“Plaintiff's complaint against Defendant must be dismissed for failure to file an affidavit of merit.” Judd, 2001 WL 1680124 at *3.
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amended complaint, filed against “Botsford General Hospital,” and second amended complaints were not accompanied by affidavits of merit. Nippa, 251 Mich. App. at 665-666, 680.
Furthermore, defendants contend that plaintiff did not “adopt by reference any previously filed Affidavit of Merit.” Doc. Ent. 79 at 40. In their December 30, 2004 affirmative defenses, defendants note that “[p]laintiff has not filed an affidavit of merit with the amended complaint in the manner required by MCL 600.2912b.” Defendants’ Doc. Ent. 50 at 45 ¶ 22. Relying upon Scarsella v. Pollak, 461 Mich. 547, 549; 607 N.W.2d 711 (2000)16 and Mouradian v. Goldberg, 256 Mich. App. 566, 571 (2003), overruled by Kirkaldy v. Rim, 478 Mich. 581, 734 N.W.2d 201 (2007), defendants argue that plaintiff’s December 13, 2004 amended complaint did not toll the statute of limitations, because it was not filed with an affidavit of merit. Therefore, defendants contend, the medical malpractice claim should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). Doc. Ent. 79 at 40.
Plaintiff responds that his “original complaint and affidavits of merit could not have been clearer that he intended a medical malpractice claim to run against his PCP for any delays in his diagnosis and treatment attributable to her.” Doc. Ent. 84 at 34-36. Plaintiff notes that CMS was dismissed on September 22, 2004 as a defendant on the basis of the Eleventh Amendment, and the December 13, 2004 amended complaint “simply inserted Dr. Hutchinson’s name wherever the name CMS, Inc., had appeared in the earlier version - in all other respects it was identical.” Doc. Ent. 84 at 35. Plaintiff further notes that he “filed an affidavit of merit in
16“[F]or statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit.” Scarsella, 461 Mich. at 549, 607 N.W.2d at 713.
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support of his original complaint as to her, and nothing in the amended complaint changed as to her.”
Furthermore, there is evidence, as plaintiff points out, that Mathai knew about the nature of plaintiff’s claims before the December 13, 2004 filing of the amended complaint. On March 18 and 25, 2004, affidavits of meritorious defense dated March 15 and March 18 were filed by non-parties Pedell and Norman, representing that they had reviewed the December 23, 2003 complaint. Doc. Entries 10 and 11. In Mathai and Antonini’s October 18, 2004 answer, they rely on affidavits of meritorious defense by Norman and Pedell dated March 18, 2004 and March 16, 2004. Doc. Ent. 41 at 18. In Hutchinson, Antonini and Mathai’s December 30, 2004 answer to plaintiff’s first amended complaint, defendants adopted the affidavits of meritorious defense by Pedell and Norman which were dated March 18 , 2004, March 16, 2004 and October 29, 2004. Doc. Ent. 50 at 17.17 Therefore, plaintiff contends, “Mathai and her attorneys clearly knew that she had been sued for medical malpractice, and that the core of Mr. Broder’s claim was her delay in the diagnosis and treatment of his cancer.” Doc. Ent. 84 at 35.
In support of his argument, plaintiff distinguishes DeMann and Judd as cases wherein an affidavit of merit was not filed with the original compliant.18 Furthermore, plaintiff claims that in Nippa “the claim was dismissed because the plaintiff never filed an affidavit of merit from an
17Antonini, Hutchinson and Mathai also filed a “notice of filing reliance on affidavit of meritorious defense.” Doc. Ent. 51.
18In DeMann, plaintiff filed the original complaint against the sheriff’s department. The amended complaint added a claim of medical malpractice against a doctor. DeMann, 2001 U. S. Dist. LEXIS 19260, *1-*2. Nonetheless, the amended complaint in DeMann initiated the doctor as a defendant and medical malpractice as a claim.
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appropriate specialist[.]” Doc. Ent. 84 at 35. Instead, plaintiff relies upon Derfiny v. Bouchard,
128 F. Supp. 2d 450 (E. D. Mich. 2001). Doc. Ent. 84 at 36. Therein, Judge Tarnow stated:
Unlike Scarsella, three valid affidavits of merit were filed in a related case subsequently consolidated with POH. The related case derived from the same events, and the charge was based on the same action or inaction of POH physicians. The defendants in the related case received timely affidavits of merit. These three affidavits of merit meet the requirements of M.C.L. § 600.2912(d). Further, the two cases were handled by the same attorney. Thus, the affidavits were in the possession of the defendant well before the statute of limitations expired. The affidavits stated that the doctor involved or the “health facility” breached the standard of care owed to the plaintiff. These previously submitted affidavits distinguish this case from Scarsella.
Derfiny, 128 F.Supp.2d at 452-453. After likening Derfiny to VandenBerg v. VandenBurg, 231
Mich. App. 497, 586 N.W.2d 570 (1998), Judge Tarnow noted:
As in VandenBerg, the plaintiff in the present case had both the complaint and an affidavit of merit to the defendant prior to the running of the statute of limitations. In VandenBerg, the complaint was filed without an affidavit of merit, but the defendant was served an affidavit of merit at a later time. In the present case, the order is reversed. The defendant was in possession of three affidavits of merit which named the “health facility” as a possible cause of the medical condition. Later, Derfiny filed the complaint naming POH as a defendant. While the order is reversed, the effect in VandenBerg and the present case is the same: a complaint and affidavit of merit notified the defendant that a non-frivolous medical malpractice claim was filed prior to the running of the statute of limitations, and there is no prejudice to the defendant.
Derfiny, 128 F. Supp. 2d at 453. Judge Tarnow also found that “the intent of the legislature
[was] better served by not dismissing the claim against POH[,]” and “the statute should be
interpreted to encourage access to the courts.” Derfiny, 128 F. Supp. 2d at 453 (citing Ericson v.
Pollack, 110 F. Supp. 2d 582, 587-589 (E. D. Mich. 2000)).
Plaintiff’s distinctions of DeMann, Judd and Nippa, as well as plaintiff’s reliance upon
Derfiny, are persuasive. Therefore, the Court should not dismiss plaintiff’s medical malpractice
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claim contained within the amended complaint on the basis that an affidavit of merit was not filed with it or that it did not contain a statement of reliance upon an affidavit of merit. iv. Second, defendants argue that plaintiff’s NOI does not comply with Mich. Comp. Laws § 600.2912d. Doc. Ent. 79 at 40-44. Plaintiff’s NOI was filed on April 29, 203. Doc. Ent. 7912, Doc. Ent. 86 Ex. S. Defendants rely primarily upon Roberts v. Mecosta County Hospital, 470 Mich. 679, 684 N.W.2d 711 (2004). In Roberts, the Supreme Court of Michigan examined whether an NOI complied with § 2912b(4). Roberts, 470 Mich. at 687-700, 684 N.W.2d at 715723. As to § 2912b(4)(b), the Court stated that the claimant is required to “make a good-faith effort to aver the specific standard of care that she is claiming to be applicable to each particular professional or facility that is named in the notice[,]” and noted that the NOIs “neither alleged a standard specifically applicable to the defendant facilities, nor did they serve as adequate notice to these defendants that plaintiff planned to proceed under a vicarious liability theory at trial.” Roberts, 470 Mich. 691-692, 693; 684 N.W.2d at 718-719. As to § 2912b(4)(c), the Court stated that the claimant is required “to provide ‘a statement’ of each of the enumerated categories of information,” and disagreed “with the panel’s conclusion that the required information need not be ‘separately . . . identified.’” Roberts, 470 Mich. at 696, 684 N.W.2d at 720. The Court noted that “[t]he notices fail to identify how the various defendants breached the applicable standards of care[,]” specifically stating:
. . . the facts as set forth in the notices simply do not serve to notify defendants of the manner in which they breached their respective standard of care. The notices do not aver how plaintiff alleged her treatment by any defendant was deficient. There is no allegation, for example, that any of the defendants failed to perform critical tests, incorrectly diagnosed her condition, or failed to refer her to a specialist in keeping with the appropriate standard of care. Although, perhaps, an inference arises from the recitation of fact that plaintiff was alleging that one or more of the defendants should have earlier diagnosed an ectopic pregnancy, such
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an ‘inference’ is not sufficient to meet the statutory requirement that plaintiff provide a statement of the manner in which each defendant breached the applicable standard of case.
Roberts, 470 Mich. at 696-697; 684 N.W.2d at 721. The Court stated that the statute expressly
requires “[a] good-faith effort on the part of a plaintiff to answer the statutory questions,
including the manner in which the plaintiff claims that the applicable standard of care was
breached.” Roberts, 470 Mich. at 697 n.15; 684 N.W.2d at 721.
Section B of the April 27, 2003 NOI, “The Applicable Standard of Care or Practice,”
purports to satisfy Section 600.2912b(4)(b). Doc. Ent. 86-7 at 3. Among other things, this
section of the NOI states:
Investigation and diagnosis of invasive squamous cell carcinoma of the larynx should have happened 4-8 weeks following July 11, 2001, when Mr. Broder presented with refractory sore throat for several months combined with weight loss of over 20 pounds despite normal diet. In any event, the time lapses . . . from the suspected diagnosis to the confirmed diagnosis, are outside the standard of care. Radiation or other curative treatment should have commenced within 3-6 weeks of initial diagnosis of Stage I laryngeal cancer. Here it did not occur until 11 weeks later . . . without explanation in the records.
Id. Likewise, Section C of the NOI, “The Action That Should Have Been Taken To Achieve
Compliance With The Standard of Practice or Care,” purports to satisfy Section 600.2912b(4)(d).
Doc. Ent. 86-7 at 4. In a related fashion, this section of the NOI states:
Mr. Broder’s medical care providers should have recognized that he had symptoms of cancer as early as July, August, or September 2001. Once [Antonini] suspected throat or gastrointestinal cancer on October 12, 2001, a positive diagnosis of Stage I laryngeal cancer by endoscopy and/or biopsy should have occurred within a few weeks; instead there was no confirmed diagnosis until 13+ weeks later[.] Following the positive lab results on January 14, 2002, treatment should have begun within 3-6 weeks; instead radiation and chemotherapy did not begin until April 2, 2002, a delay totaling 11 weeks from the confirmed diagnosis of the cancer.
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Id. To begin, defendants argue that plaintiff has not identified “a specific standard of practice
or care applicable to each of the 17 different persons concerned in the NOI, including but not limited to Dr. Mathai, Dr. Antonini, Dr. Bey, Dr. Axelson, Dr. Hutchinson, or any other person.” Nor, they claim, does the NOI plainly state the applicable standard. Doc. Ent. 79 at 42; Mich. Comp. Laws § 600.2912b(4)(b). The failure to state a cohesive standard care, defendants contend, make it “impossible for Defendants to discern which elements of the alleged standard apply to which Defendant(s).” Doc. Ent. 79 at 43. Specifically, defendants argue: “Plaintiff’s alleged standard of care does not indicate whether Dr. Mathai should have investigated carcinoma of the larynx four to eight weeks after July 11, 2001. Additionally, the NOI fails to specify whether the commencement of radiation within three to six weeks is a standard that applies to Dr. Mathai or someone else. Likewise, it is unintelligible from Plaintiff’s NOI whether continuous monitoring and provision of dental care is the standard applicable to Dr. Mathai or someone else.” Doc. Ent. 79 at 43.
Also, defendants argue, “[p]laintiff’s NOI is insufficient under [Mich. Comp. Laws §] 600.2912b(4)(c) as it fails to state ‘the manner in which it is claimed that the applicable standard of practice or care was breached.’” Doc. Ent. 79 at 43. In other words, “the NOI does not indicate the manner in which any specific Defendant allegedly breached the standard of care.” Doc. Ent. 79 at 43-44. For example, defendants contend, Section B of the NOI (“The Applicable Standard of Care or Practice”), “never alleges that any given physician Defendant’s failure to complete any of the specified actions comprised a breach of the standard of care.” Doc. Ent. 79 at 44. Furthermore, the NOI does not “specifically allege[] that the standard of care required any
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individual Defendant physician to take any of the specific actions alleged.” Doc. Ent. 79 at 44.
Defendants conclude that “[b]ecause [p]laintiff did not fulfill his obligation under § 2912b to set forth either the standard of care [subsection (b)] or the breach of that standard of care [subsection (c)] in order to put [d]efendants, Dr. Mathai or any other [d]efendant, properly on notice of his claims, the statute of limitations was not tolled during the notice period.” Doc. Ent. 79 at 44.
Plaintiff responds that he has complied with Section 600.2912b(4). Doc. Ent. 84 at 3739. In so doing, he relies upon Boodt v. Borgess Medical Center, 272 Mich. App. 621, 728 N.W.2d 471 (2006), wherein the Court of Appeals of Michigan considered “whether the notice [at issue] contain[ed] the required information, not whether any specific portion of the notice d[id].” Boodt, 272 Mich. App. 628, 728 N.W.2d at 476. Importantly, the court noted that “in Roberts the notice of intent simply did not contain the necessary information.” Id. at 630, 728 N.W.2d at 477. The NOI in Boodt purported “to combine the requirements of MCL 600.2912b(4)(b), (c), and (d) into a single paragraph.” Id. The Court of Appeals noted that “seven of the subparagraphs set forth specific actions that defendant allegedly failed to take, thereby breaching the applicable standard of care[,]” “[a]ny reader of the document could not help but become aware of the specific breaches being alleged against Dr. Lauer[,]” and “[t]hese seven subparagraphs satisfy the requirements of MCL 600.2912b(4)(b) and (c).” Id. The Court of Appeals noted that although the subparagraphs enumerated the actions that defendant did not take, “there is no reason to presume that a putative medical defendant would be forced to guess at the alleged standard of care, or at the actions he allegedly should have taken to comply with
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the standard of care, from these negatively phrased statements.” Id. at 631, 728 N.W.2d at 477478. The court further stated: “In this case, no guesswork is required to appreciate that the standard of care is to have taken the actions that defendant allegedly failed to take. For the same reason, it is obvious that plaintiff alleges that defendant should have taken those actions in order to comply with the standard of care.” Boodt, 272 Mich. App. at 631; 728 N.W.2d at 478. Also, “there is no real guesswork involved in coming to the conclusion that Dr. Lauer poked a hole in an artery, causing massive bleeding that was not stopped in time to prevent the decedent’s death.” Id. at 632, 728 N.W.2d at 478.
The NOI at issue in this case was sent to seventeen (17) individuals or entities, including Mathai. Doc. Ent. 86-7 at 5-6. Even if the NOI at issue does not specify “the specific standard of care that [he] is claiming to be applicable to each particular professional or facility that is named in the notice[,]” Roberts, 470 Mich. at 692, 684 N.W.2d at 718, at this point there is only one defendant, primary care physician Mathai, against whom the medical malpractice claim is brought. Doc. Ent. 84 at 38. As the above-quoted paragraphs illustrate, the NOI is clear that plaintiff’s claim is based upon a delay in diagnosis and treatment of his laryngeal cancer. “[A] medical malpractice plaintiff is only obligated to provide defendants with notice of the claims against them at a presuit stage of the proceedings.” Boodt, 272 Mich. App. at 632-633, 728 N.W.2d at 478. As plaintiff states, the NOI’s “message to [Mathai] could not be clearer: that she failed to ensure that Mr. Broder was diagnosed and treated within a reasonable time.” Likening his case to Boodt, plaintiff contends that “Mathai knew that she was the only primary care physician responsible for ensuring that Mr. Broder’s cancer was timely diagnosed and treated.” Doc. Ent. 84 at 38.
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As to defendants’ claim that the NOI is devoid of discussion of Section 600.2912b(4)(c), Doc. Ent. 79 at 43-44, Sections B and C of the April 27, 2003 NOI arguably embody the information sought by §§ 600.2912b(4)(b), (c) & (d). The above-quoted paragraphs mention the time periods during which the diagnosis and the initiation of treatment should have occurred and note the diagnosis and treatment happening outside of these periods. Although these requirements are not linked with a particular defendant, there is now only one defendant - Mathai - against whom the medical malpractice claim is brought, and the Court should agree with plaintiff that “[o]nce Mr. Broder described the malpractice as the delay in his diagnosis and treatment, then both the breach of duty and the corrective action were obvious - that Dr. Mathai should have coordinated and monitored his care to ensure timely diagnosis and treatment.” Doc. Ent. 84 at 39. v. Third, defendants argue that plaintiff’s affidavits of merit do not contain the elements required by Section 600.2912d(1) to certify the merit of plaintiff’s claims. Doc. Ent. 79 at 45-47. Defendants argue that Williams’s December 9, 2003 affidavit of merit which was filed with the original complaint on December 24, 2003, does not “identify the medical standard of care applicable to each Defendant [600.2912d(1)(a)], the manner in which each breached the standard of care [600.2912d(1)(b)], and/or the actions each Defendant was required to take to comply with the standard of care [600.2912d(1)(c)][.]” Doc. Ent. 79 at 45. In support of this argument, defendants rely upon Mouradian v. Goldberg, 256 Mich. App. 566, 573-574 (2003) and Geralds v. Munson Healthcare, 259 Mich. App. 225, 235-240; 673 N.W.2d 792 (2003).
Defendants’ brief specifically takes issue with the affidavit of merit’s alleged deficiency with respect to Subsection (a), alleging the affidavits of merit “do not set forth the required
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element of the standard of care.” Defendants argue that the affidavits “completely fail to indicate any specific physician to whom Plaintiff is directing his claims[,]” and the affidavits “appear to allege that the same standard applies equally to a general practitioner, an internist, or any health care provider.” Doc. Ent. 79 at 46. Defendants characterize the affidavits of merit as “simply lists of potential interventions that could be performed in treating a patient, not a cohesive standard of care delineating the proper practice as to any specific health care provider or Defendant.” Doc. Ent. 79 at 46-47. Therefore, they argue, the affidavits do not certify plaintiff’s claims. Doc. Ent. 79 at 47.
Furthermore, defendants contend that the failure to file an affidavit in compliance with Mich. Comp. Laws § 600.2912d resulted in plaintiff’s failure to technically complete the filing of his complaint. Therefore, they argue, the medical malpractice claim should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to commence the claim before the two year statute of limitations expired. Doc. Ent. 79 at 47.
Plaintiff responds that “Mr. Broder’s affidavits fully covered the statutory waterfront[.]” Doc. Ent. 79 at 39-40. In support of this argument, plaintiff cites the unpublished case of Zemaitis v. Spectrum Health, No. 265698, 2006 WL 890064 (Mich. App. Apr. 6, 2006), wherein the court stated that “MCL 600.2912d(1) does not provide that the ‘statement’ needs to be detailed or elaborate.” Zemaitis, 2006 WL 890064, *4. The Court noted the parallel between the language of Sections 600.2912b(4)(e) and 600.2912d(1)(d). Quoting Roberts v. Mecosta County Hospital, 470 Mich. 679, 700-701, 648 N.W.2d 711 (2004), the Court of Appeals noted that “‘[u]nder MCL 600.2912b(4), a medical malpractice claimant is required to provide potential defendants with notice that includes a ‘statement’ of each of the statutorily enumerated
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categories of information. Although it is reasonable to expect that some of the particulars of the information supplied by the claimant will evolve as discovery and litigation proceed, the claimant is required to make good-faith averments that provide details that are responsive to the information sought by the statute and that are as particularized as is consistent with the early notice stage of the proceedings. The information in the [NOI] must be set forth with that degree of specificity which will put the potential defendants on notice as to the nature of the claim against them. This is not an onerous task: all the claimant must do is specify what it is that she is claiming under each of the enumerated categories in § 2912b(4).’” Id. at *4. “The affidavit of merit stage of the proceedings is at the inception of the litigation, and there likewise has been no discovery; therefore, the information available and to be communicated is also somewhat limited.” Id. at *5. See also Boodt, 272 Mich. App. at 626, 728 N.W.2d at 475 (“The expected level of specificity must be considered in light of the fact that discovery would not yet have begun.”).
The Court should not grant summary judgment on the basis that plaintiff’s affidavits of merit do not comply with Section 600.2912d. First, Section 600.2912d(1)(a) requires a statement of the applicable standard of practice or care. Paragraph 3 of Williams’s December 9, 2003 affidavit and paragraph 4 of Bradford’s December 12, 2003 affidavit purport to satisfy this subsection of the statute. Doc. Ent. 3 at 15-17, 20. The subsections of these paragraphs discuss what a reasonable general practitioner, internist, or health care provider, and in some cases what a reasonable ENT specialist, would have done. As plaintiff notes in his response, “[a]t present, the only remaining defendant [against whom a medical malpractice claim is brought] is Dr. Mathai, and since she was a general practitioner, internist, or health care provider - and since she
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knew that she was the primary care physician - it is hard to see how she could possibly have been confused about what the plaintiff was alleging that she did wrong, or what she should have done in order not to be negligent.” Doc. Ent. 84 at 40; Mich. Comp. Laws § 600.2912d(1)(b), (c).
Second, on July 11, 2007, the Supreme Court of Michigan overruled Mouradian and Geralds in Kirkaldy v. Rim, 478 Mich. 581; 734 N.W.2d 201 (2007), wherein the court stated, “a complaint and affidavit of merit toll the period of limitations until the validity of the affidavit is successfully challenged in ‘subsequent judicial proceedings.’ Only a successful challenge will cause the affidavit to lose its presumption of validity and cause the period of limitations to resume running.” Kirkaldy, 734 N.W.2d at 203. Therefore, until the affidavits of merit are successfully challenged, the period of limitations is tolled.19 vi. Fourth, defendants argue that plaintiff’s NOI and/or affidavit of merit do not adequately set forth proximate cause as required by Sections 600.2912b(4)(e) and/or 600.2912d(1)(d). Doc. Ent. 79 at 47-50. Section D of the NOI purports to satisfy Section 600.2912b(4)(e). Doc. Ent. 86-7 at 4-5. In Roberts, the Supreme Court of Michigan stated that “it is not sufficient under [§ 2912b(4)(e)] to merely state that defendants’ alleged negligence caused an injury. Rather, § 2912b(4)(e) requires that a notice of intent more precisely contain a statement as to the manner in which it is alleged that the breach was a proximate cause of the injury.” Roberts, 470 Mich. at
19Plaintiff suggests that defendants are engaging in gamesmanship with the timing of these procedural arguments. “The defense at any time could have moved to dismiss based on the same alleged deficiencies, if it believed them to be meritorious. Instead, the defense waited until all the discovery was done - at considerable expense to everyone - and makes the motion now only because dismissal will time-bar the plaintiff’s med-mal claim.” Doc. Ent. 84 at 40 n.19.
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700 n.16, 648 N.W.2d at 722 n.16. Citing this portion of Roberts, defendants claim that
plaintiff’s NOI “does not contain a statement as to the manner in which it is alleged that the
breach was a proximate cause of Plaintiff’s injury[.]” Doc. Ent. 79 at 48.
Defendants contend that Williams’s affidavit of merit does not satisfy Mich. Comp. Laws
600.2912d(1)(d). Doc. Ent. 79 at 50. Paragraph 5 of Williams’s affidavit of merit purports to
satisfy Section 600.2912d(1)(d):
Mr. Broder suffered the following injuries as the proximate result of the acts and omissions that were outside the standard of care:
a. Long-term sore throat, weight loss, loss of voice, and difficulty swallowing for months longer than was necessary;
b. Progression of his cancer from Stage I to Stage III T2N1, lowering his statistical life expectancy;
c. Three courses of chemotherapy with all attendant side effects, including the insertion of a PEG tube and subsequent infection, as well as possible long-term dental problems, all of which were avoidable because Stage I laryngeal cancer is treatable by radiation alone;
d. Physical pain an suffering, mental anxiety, and emotional anguish because of the complications and side effects of the additional treatments needed to remedy his Stage III laryngeal cancer and because of the uncertainty caused by the delays in diagnosis, treatment, follow-up, and the increased risk of recurrence.
Doc. Ent. 3 at 18 ¶ 5. Defendants rely upon the unpublished case of Bailey v. Pornpichit, No.
267546, 2006 WL 2270400 (Mich. App. Aug. 8, 2006). Doc. Ent. 79 at 47-49. In Bailey, the
affidavit of merit stated with regard to proximate cause that “as a direct result of [the doctor’s]
failure to comply with the applicable standard of care, . . . Christal Bailey was delivered
stillborn.” Bailey, 2006 WL 2270400, *2. The Court stated:
The mere correlation between alleged malpractice and an injury is insufficient to show proximate cause. Proximate cause is a legal term of art that incorporates both cause in fact and legal (proximate) cause. The cause in fact element generally requires showing that but for the defendant's actions, the plaintiff's injury would not have occurred. Legal (proximate) cause normally involves
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examining the foreseeability of consequences and whether a defendant should be held legally responsible for such consequences. In this case, plaintiff's affidavit describing the matter of proximate cause simply states “[t]hat as a direct result of Dr. [Sethavarangura's] failure to comply with the applicable standard of care, as outlined above, Christal Bailey was delivered stillborn.” The standard of care “outlined above” consisted of performing tests. Presumably, if defendant had performed the tests and learned of Christal Bailey's fetal distress, then defendant possibly could have done something to save her. But the affidavit does not describe the manner in which defendant's failure to perform the tests factually and foreseeably caused Christal Bailey to be stillborn. It is possible that, even had defendant performed the tests, Christal Bailey still could have been stillborn. Therefore, we find that plaintiff's affidavit of merit was insufficient to satisfy MCL 600.2912d(1)(d). Bailey, 2006 WL 2270400, *2 (internal citations omitted). Likening this case to Bailey, defendants contend that Williams’s affidavit of merit “does not describe the manner in which Defendant’s alleged failure to monitor Plaintiff ‘factually and forseeably’ caused Plaintiff []to suffer prolonged as alleged.” Defendants note the possibility that “even had Defendant monitored Plaintiff [more closely], Plaintiff’s testing and treatment would not have occurred sooner in light of the opinions and schedules of the various consulting specialists utilized, and the nature of plaintiff’s cancer.” Doc. Ent. 79 at 49. Plaintiff distinguishes Roberts and Bailey by stating that “in both those cases the precise question was how the defendants caused the alleged harm.” Doc. Ent. 84 at 40. In Roberts, the notice of intent to the hospital contained a section regarding “THE MANNER IN WHICH THE BREACH WAS THE PROXIMATE CAUSE OF CLAIMED INJURY”, in other words the section purporting to satisfy Section 2912b(4)(e), stated “[s]ee paragraph 2 above.” Roberts, 470 Mich. at 688, 684 N.W.2d at 716. Paragraph 2 was the section regarding “THE APPLICABLE STANDARD OF PRACTICE OR CARE ALLEGED”, and it stated:
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Claimant contends that the applicable standard of care required that Mecosta County General Hospital provide the claimant with the services of competent, qualified and licensed staff of physicians, residents, interns, nurses and other employees to properly care for her, render competent advice and assistance in the care and treatment of her case and to render same in accordance with the applicable standard of care. Roberts, 470 Mich. at 687, 684 N.W.2d at 716. Another notice of intent to the professional group, two of its individual affiliates and the emergency room physician contained similar paragraphs. Id. at 689, 684 N.W.2d 711 at 717. With respect to Section 600.2912b(4)(e), the Court stated, “[n]owhere in the notices does plaintiff state that any of the defendants misdiagnosed her condition; nor do the notices state any consequences stemming from a misdiagnosis.” Id. at 699, 684 N.W.2d at 722. In Bailey, an additional inference needed to be made - for example, “if defendant had performed the tests and learned of Christal Bailey’s fetal distress, then defendant possibly could have done something to save her.” Bailey, 2006 WL 2270400, *2. Plaintiff argues that his case is different, and this Court should agree. As plaintiff states, “the proximate harm he alleges was having to endure the pain and suffering of his symptoms for far longer than he should have had to endure them, and having to undergo more invasive treatment than otherwise would have been necessary.” Doc. Ent. 84 at 40-41. For example, Section D of the NOI states that “[t]he delays in diagnosis . . . were the cause of continuous pain, anxiety, and deteriorating physical well-being for Mr. Broder[,]” and “[c]omplications caused by Mr. Broder’s undiagnosed and late-treated cancer included pain, difficulty in eating, [etc.][.]” Doc. Ent. 86-7 at 4-5. Furthermore, Paragraph 5 of Williams’s affidavit of merit lists injuries “as the proximate result of the acts and omissions that were outside the standard of care[,]” such as difficulty swallowing, progression of his cancer, subjection to chemotherapy, etc. Doc. Ent. 3 at
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18. To be clear, Paragraph 4 of the affidavit contained the alleged acts and omission, such as plaintiff “should have been given laboratory tests . .. Within two to four weeks of November 13, 2001[,]” and he “should have begun treatment no later than two to four weeks after the diagnosis of Stage I laryngeal cancer.” Doc. Ent. 3 at 17. As plaintiff argues, “[w]hen the alleged negligence is the failure to timely diagnose and treat, and the proximate harm is the suffering caused as a result, there can be no ‘extra step’ or ‘extra proof’ required because the causal connection is direct.” b. Defendants are not entitled to summary judgment on their claim that plaintiff has
not complied with Section 600.2912a(2). Defendants also argue that plaintiff has not complied with Mich. Comp. Laws § 600.2912a(2)’s foreseeability requirement. Doc. Ent. 79 at 49-50. Mich. Comp. Laws § 600.2912a provides in part that “[i]n an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.” Mich. Comp. Laws § 600.2912a(2). Defendants argue that “there is no evidence Plaintiff’s cancer ever progressed from Stage I to III as alleged by Plaintiff, or that more invasive treatment was required as a result of any alleged delay.” Doc. Ent. 79 at 49. Defendants note that plaintiff “was cured of his cancer. There is no evidence that his opportunity to achieve a better result was decreased by greater than 50% as a result of Dr. Mathai’s alleged medical malpractice.” Doc. Ent. 79 at 50.
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Plaintiff notes that his NOI and affidavits of merit allege that “as a result of the delays, his cancer progressed from Stage I to Stage III.” Doc. Ent. 84 at 41. To begin, the NOI states that “[t]he 11-week delay in treatment following the diagnosis resulted in the progression of Mr. Broder’s laryngeal cancer from Stage I, with an expected >90 percent chance of survival for 5 years following a moderate course of therapy (typically, radiation alone) to Stage III T2N1. Because his Stage I laryngeal cancer was allowed to progress untreated, Mr. Broder has a 34-60 percent chance of survival for 5 years, even following an aggressive course of treatment.” Doc. Ent. 86-7 at 4-5. Also, as previously mentioned, Williams’s affidavit of merit states that the proximate result of acts and omissions outside the standard of care included “[p]rogress of [plaintiff’s] cancer from Stage I to Stage III T2N1, lowering [plaintiff’s] statistical life expectancy[.]” Doc. Ent. 3 at 18. Furthermore, Hayman testified that the advanced condition was not present when he saw plaintiff on February 5, 2002. Doc. Ent. 85-16 at 5. Additionally, Bradford testified that plaintiff’s cancer was at Stage I as of mid-January and progressed to Stage III sometime between January and March. Doc. Ent. 85-19 at 72-73.
Plaintiff cannot recover for loss of opportunity to survive based on allegations that delay in diagnosis or treatment reduced his chances for long-term survival - he “can only recover for a present injury, not for a potential future injury.” Wickens v. Oakwood Healthcare System, 465 Mich. 53, 60, 631 N.W.2d 686, 690 (2001). As the Supreme Court of Michigan has stated:
Plaintiff claims that a living plaintiff who suffers a reduction in chances of long-term survival because of medical malpractice may have a cause of action for loss of an opportunity to survive under the statute. The testimony that plaintiff's chances of surviving for a [five]-year period decreased, however, is evidence of a potential future injury-death-which is not an injury already suffered, as required by the plain language of the statute. Thus, a loss of an opportunity to survive claim only encompasses injuries already suffered, which clearly limits recovery to situations where death has already occurred. Because the evidence concerning the
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reduction in h[is] chances of survival over a [five]-year period is relevant only to h[is] potential, future death, the living plaintiff in this case may not recover for this “loss of opportunity.” Wickens, 465 Mich. at 60-61, 631 N.W.2d at 690 (emphasis in original). However, plaintiff may proceed on a claim that he suffered other injuries as a result of delayed diagnosis and treatment: “[t]he [five]-year-survival-rate statistics say nothing about plaintiff's chances of avoiding the other injuries [he] allegedly suffered, such as (1) the more invasive medical treatments caused by the . . . delay in [his] diagnosis, (2) the emotional trauma attributable to [his] unnecessarily worsened physical condition, and (3) the pain and suffering attributable to [his] unnecessarily worsened physical condition. Because of these alleged injuries, the trial court should not have dismissed plaintiff's case in its entirety on the basis of subsection 2912a(2).” Id. at 61-62, 631 N.W.2d at 691 (emphasis in original). To the extent that plaintiff’s medical malpractice claim is based upon other injuries he suffered as a result of delayed diagnosis and treatment, the Court should conclude that his claim survives summary judgment. Hayman testified: “[t]he fact that at the time of simulation [March 12, 2002] he was found to have more advanced disease than was initially felt to be the case and that he went on to have treatment with chemotherapy in addition to radiation.” Doc. Ent 86-15 at 5. Furthermore, Bradford’s report states, “had Mr. Broder been timely tested for throat cancer following his appointment on August 20, 2001, and had he been timely treated, it is more likely than not that radiation therapy alone would have been sufficient.” Doc. Ent. 84-4 ¶ 87. Additionally, Bradford testified that the complications and side effects of additional treatments included the PEG tube that got infected, difficulty swallowing, anxiety, permanent loss of saliva and the need for dental care. Ex. N. at 85, 85-88. Based upon these documents, there is a
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question of material fact regarding damages. As plaintiff contends, his “damage claim is not just that he had to undergo chemotherapy that could have been avoided, but also that the wider field of radiation (to treat Stage III cancer) caused added damage to his throat, voice-box, and salivary glands.” Doc. Ent. 84 at 42 n.20. c. Defendants are not entitled to summary judgment on their substantive challenge to
plaintiff’s medical malpractice claim. i. Plaintiff argues that, because Mathai’s conduct evidenced deliberate indifference, it “necessarily include[d] negligence.” Doc. Ent. 84 at 25-28. In his deposition, Dr. Williams stated that Mathai “missed the diagnosis[,]” and “[o]nce it was suspected, she did nothing to facilitate Mr. Broder’s getting care in a timely manner.” Doc. Ent. 85 Ex. M at 39. Furthermore, when Dr. Norman was asked, “assuming [Mathai] was concerned that the client might have cancer. And at this point she identifies in her own mind two kinds of cancer that could cause the symptoms that have been reported, how soon should she have an answer as to whether or not the patient has cancer to be within the standard of care[,]” over defense counsel’s objection Norman stated: “I would say certainly within a matter of days you would expect, just because of the nature of the procedure. It’s not that complicated to do.” Doc. Ent. 86 Ex. O at 37-38.
Additionally, Dr. Pramstaller testified that assuming Mathai performed the rectal exam, prostate exam, CBC and chest x-ray because she thought plaintiff might have cancer, two or three weeks would have been an appropriate amount of time for plaintiff to have his chest x-ray results back. Doc. Ent. 85 Ex. F at 36. Dr. Pramstaller also testified, over defense counsel’s objection, that he believed it was “the assigned doctor’s job to make sure that the patient gets the treatment that the patient needs[.]” Doc. Ent. 85 Ex. F at 15. Dr. Norman testified that the procedures ordered by Dr. Antonini would be expected to have been done within four to six
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weeks. Doc. Ent. 86 Ex. O at 52. When asked “how long should you wait from October 12th to
know whether [plaintiff] has cancer or not?”, Dr. Pramstaller testified that “the longest that [he]
would be comfortable with would be eight weeks.” Doc. Ent. 85 Ex. F at 53. He also suggested
that Mathai might have monitored Kornak’s November 2001 request “through a tickler file that
they keep themselves of patients they want to follow up on, or they can just walk into the other
room where the CMS coordinator is and take a look at the off-site specialty book which should
give you up-to-date information on that.” Doc. Ent. 85 Ex. F at 65.
Over defense counsel’s objection based upon speculation, Williams testified that Mathai
signing the 30 day follow up form “moves the diagnostic procedure well past the time window
recommended by the subspecialist, so she should not do so without consulting with the
subspecialist.” Doc. Ent. 85 Ex. M at 96-97. Related testimony surfaced during Dr.
Pramstaller’s deposition:
Q: Is it appropriate at this point for her to sign a 30-day deferral form? [Objections omitted.]
. . . A: If I was reviewing this case, I would have questions as to whether or not it
was appropriate, and I probably would talk to her about it. Q: If we look at the second form, this one is now dated January 2 – it says
‘01, but I’m assuming it’s ‘02, and you should assume that it’s ‘02. Here we’ve got the same thing now, not November 29th, but 34 days later, 33 days later, and again she said it’s acceptable to continue to wait completion of the off-site. She checked yes. If it was a problem on November 29th, is it a significantly greater problem on January 2nd? [Objection(s) omitted]. A: I would have more concern over it, yes.
Doc. Ent. 85 Ex. F at 68-69.
Williams testified that “[i]n a system as complex as this, if something gets dropped like
the timeliness or the accomplishment of a CT scan, the primary care provider shares some
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responsibility in seeing that it gets done regardless of what other factors are in play.” Doc. Ent. 85 Ex. M at 85. ii. Defendants argue that “[d]efendant Dr. Mathai is entitled to summary judgment concerning plaintiff’s medical malpractice claim pursuant to [Fed. R. Civ. P.] 56 because plaintiff’s experts admit there was no delay by Dr. Mathai.” Doc. Ent. 79 at 50-53. To the extent plaintiff’s claim against Mathai concerns delay in the diagnosis of plaintiff’s laryngeal cancer, defendants claim it is without factual support. Doc. Ent. 79 at 50. Defendants contend that Williams “admitted during his testimony there is no evidence of these symptoms during the time period in question, between March through August 2001.” Doc. Ent. 79 at 51 (citing examples from Doc. Ent. 84 Ex. M at 41-44, 52). Defendants contend that “[g]iven the lack of information observed by Dr. Mathai concerning the conditions required to diagnose Plaintiff’s laryngeal cancer, Plaintiff’s claim that Dr. Mathai did not timely diagnose or suspect Plaintiff’s laryngeal cancer must be dismissed.” Doc. Ent. 79 at 51 (citing Doc. Ent. 84 Ex. M at 30-53).
To the extent plaintiff’s claim against Mathai concerns facilitating plaintiff’s care and treating his cancer from the time it was suspected by Antonini on October 12, 2001, the CMS defendants contend that because Mathai was away on vacation from October 1, 2001 through October 21, 2001, and because she was on maternity leave from March 9, 2002 through May 15, 2002, “the only remaining dates at issue concerning Dr. Mathai are between October 21, 2002 through March 9, 2002.” Doc. Ent. 79 at 51-52 (citing Doc. Ent. 84 Ex. M at 45, 80). Defendants characterize Williams’s testimony as Mathai “timely follow[ing] the recommendations of the treating consulting cancer and oncology specialists.” Doc. Ent. 79 at 52 (citing examples from Doc. Ent. 84 Ex. M at 20-21, 54-77). Defendants contend that “Mathai
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did not breach the applicable medical standard of practice and care under the present circumstances.” Doc. Ent. 79 at 53. iii. Plaintiff responds that the opinions and conclusions in Williams’s report are confirmed by his testimony. Doc. Ent. 84 at 42-43, Doc. Ent. 85 Ex. A at 9-11. Significantly, the report supports plaintiff’s statement that “after the ENT saw Mr. Broder on 11/13/01, Dr. Mathai approved 30-day delays [on November 29, 2001 and January 2, 2002] that extended the earliest date for a confirmed diagnosis far beyond the 2-3 weeks that the ENT had requested [on November 13, 2001][.]” Doc. Ent. 84 at 42-43. Doc. Ent. 85 Ex. A at 10 ¶¶ 79, 80. Furthermore, the report specifically states, “[b]y any measure, the delay in diagnosis far exceeds the standard of care in any setting in southeast Michigan.” Doc. Ent. 85 Ex. A at 10 ¶ 81.
Also, Williamson’s report states that “[b]y any measure, the delay in treatment in this case after the confirmed diagnosis of throat cancer [on January 22, 2002] far exceeds the standard of care in any setting in southeast Michigan.” Doc. Ent. 85 Ex. A at 11 ¶ 83. It further states that “[e]xcept for the phone call on January 30, 2002, the medical records do not show any other action by Dr. Mathai to ensure that Mr. Broder’s treatment would begin in a timely fashion, after the diagnosis in mid-January 2002.” Doc. Ent. 85 Ex. A at 11 ¶ 84. Identical paragraphs appear in the June 13, 2006 report on Broder by Dr. Carol R. Bradford. Doc. Ent. 85 Ex. B at 11 ¶¶ 79, 80, 81, 83, 84.20
20Plaintiff contends that “whether or not Dr. Mathai was the responsible physician, or whether or not the late diagnosis and treatment resulted in added pain and suffering” are “jury questions that have nothing to do with the framing of proximate cause in the notice of intent or in the affidavit of merit.” Doc. Ent. 84 at 41.
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iv. Taking the above into consideration, the Court should agree with plaintiff that “a reasonable jury could find that Dr. Williams’s testimony fully supports a claim of medical malpractice.” Doc. Ent. 84 at 43. As previously noted, Williams testified that Mathai “missed the diagnosis[,]” and “[o]nce it was suspected, she did nothing to facilitate Mr. Broder’s getting care in a timely manner.” Doc. Ent. 85 Ex. M at 39. Furthermore, as noted above, Williams testified about the 30 day follow up form, when read with Pramstaller’s testimony, begs the question of whether Mathai should have agreed on November 29, 2001 and on January 2, 2002 that it was acceptable to continue to await completion of the vocal cord stripping. Doc. Ent. 85 Ex. D at 21, 24. III. NOTICE TO PARTIES REGARDING OBJECTIONS:
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 14748 (1985), Howard v. Secretary of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). Filing of objections that raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
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Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall not be more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.

Dated 8/29/07

s/Paul J. Komives PAUL J. KOMIVES UNITED STATES MAGISTRATE JUDGE

The undersigned certifies that a copy of the foregoing order was served on the attorneys of record by electronic means or U.S. Mail on August 29, 2007.
s/Eddrey Butts Case Manager

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER,

Plaintiff,
v.
CORRECTIONAL MEDICAL SERVICES, INC., PATRICIA L. CARUSO, GEORGE PRAMSTALLER, HENRY GRAYSON, and JAN EPP, in their individual and official capacities,

CASE NO. 03-CV-75106-DT JUDGE NANCY G. EDMUNDS MAGISTRATE JUDGE PAUL KOMIVES

Defendants. /

REPORT AND RECOMMENDATION ON DEFENDANTS CARUSO, PRAMSTALLER, AND EPP’S MOTION FOR SUMMARY JUDGMENT (docket #87)

Table of Contents

I.

RECOMMENDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A.

Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B.

Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C.

Federal Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.

Official Capacity Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2.

Personal Capacity Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

D.

State Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

E.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

III.

NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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I. RECOMMENDATION: The Court should grant in part and deny in part defendant Caruso, Epp, and Pramstaller’s motion for summary judgment (docket #87). Specifically, the Court should deny the motion with respect to plaintiff’s federal civil rights claims against defendant Epp and Pramstaller in their personal capacities based on their role in devising and implementing the medical policies, and should grant the motion with respect to plaintiff’s remaining federal and state law claims against defendants Caruso, Epp, and Pramstaller. II. REPORT: A. Procedural Background
Plaintiff Steven Broder, a state prisoner, brings this action pursuant to 42 U.S.C. § 1983 and state law, alleging that defendants failed to timely treat and diagnose his throat cancer. The facts are fully set forth in my Report and Recommendation addressing defendant Mathai and Hutchinson’s motion for summary judgment, entered on August 29, 2007, and need not be recounted here.
This Report addresses the motion for summary judgment filed by defendants Caruso, Pramstaller, and Epp on December 20, 2006. These defendants argue that they are entitled to summary judgment on plaintiff’s federal civil rights claims because: (1) they are immune from suit under the Eleventh Amendment with respect to plaintiff’s claims against them in their official capacities; (2) with respect to plaintiff’s claims against them in their individual capacities, there is no evidence that they were personally involved in the alleged deprivation of plaintiff’s constitutional rights; (3) plaintiff failed to exhaust his claims against them; and (4) they are entitled to qualified immunity. With respect to plaintiff’s state law claims defendants contend that they are entitled to summary judgment because: (1) they were not treating professionals and thus are not liable for
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medical malpractice; and (2) with respect to plaintiff’s remaining tort claims, they are entitled to governmental immunity. Plaintiff, through counsel, filed a response to the motion on January 19, 2007. On February 7, 2007, defendants filed a notice partially withdrawing their exhaustion argument based on the Supreme Court’s decision in Jones v. Bock. For the reasons that follow, the Court should grant in part and deny in part defendants’ motion for summary judgment. B. Legal Standard
Under Rule 56, summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A fact is material only if its resolution will affect the outcome of the lawsuit.” Hedrick, 355 F.3d at 451-52 (citing Anderson, 477 U.S. at 248). In deciding a motion for summary judgment, the Court must view the evidence in a light most favorable to the non-movant as well as draw all reasonable inferences in the non-movant’s favor. See Sutherland v. Michigan Dep’t of Treasury, 344 F.3d 603, 613 (6th Cir. 2003); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).
“The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party’s case.” Hedrick, 355 F.3d at 451 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet this burden, the moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, “the burden on the moving party may be discharged by ‘showing’ -- that is, pointing out to the district
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court -- that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp., 477 U.S. at 325. “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.’” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); see also, FED. R. CIV. P. 56(e).
To create a genuine issue of material fact, however, the non-movant must do more than present some evidence on a disputed issue. As the Supreme Court has explained:
There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [non-movant’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. (citations omitted); see Celotex Corp., 477 U.S. at 322-23; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Thus, “[t]he existence of a mere scintilla of evidence in support of the non-moving party’s position will not be sufficient; there must be evidence on which the jury could reasonably find for the non-moving party.” Sutherland, 344 F.3d at 613. C. Federal Claims 1. Official Capacity Claims Plaintiff brings his constitutional claims under § 1983 against defendants in both their individual and official capacities. To the extent that plaintiff asserts his claims against defendants Caruso, Pramstaller, and Epp in their official capacities, the Court should conclude that these claims are barred by the Eleventh Amendment.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one
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of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. Although the amendment expressly prohibits only suits against states by citizens of other states, the Supreme Court has long held that the Eleventh Amendment also bars suits by citizens of the state being sued. See Hans v. Louisiana, 134 U.S. 1 (1890); Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 472-73 (1987) (plurality opinion). This immunity is based on a two part presupposition: (1) each state is a sovereign entity; and (2) “it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” THE FEDERALIST No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed. 1961); see Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, 1122 (1996); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Hans, 134 U.S. at 13. Thus, “in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also, Papasan v. Allain, 478 U.S. 265, 276 (1986). Further, as the Supreme Court made clear in Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989), the Eleventh Amendment bars suits against state officials sued in their official capacity. See also, Hafer, 502 U.S. at 25; Graham, 473 U.S. at 166-67.
Here, the MDOC defendants are state officials, and plaintiff’s claims against them in their official capacities are therefore barred by the Eleventh Amendment. This is so even though, as plaintiff points out, he is alleging a claim based on a state policy. See Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (noting that policy and custom claims against a state officer may be reached in federal court only to the extent that the plaintiff seeks prospective injunctive relief.). This rule also applies to plaintiff’s claims for declaratory relief. See Green v. Mansour, 474 U.S. 64, 67-68
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(1985). There is a limited exception to the Eleventh Amendment bar for suits against state officers
in their official capacities which seek only prospective relief. To come within this exception, the relief sought by the plaintiff must (1) remedy a continuing violation of federal law; and (2) properly be characterized as prospective. See Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 645 (2002); Seminole Tribe, 517 U.S. at 73. Plaintiff argues that his claims seeking an injunction prohibiting enforcement of MDOC’s health policies satisfies this narrow exception. The Court should disagree. To establish this exception, plaintiff must show that the medical policies he attacks themselves violate federal law, not that they may be unconstitutionally applied in the future. The evidence indicates that the policies regarding scheduling of outside speciality visits has now been changed, see Pl.’s Br. in Resp. to Def. Mathai & Hutchinson’s Mot. for Summ. J., Ex. H, Dep. Tr. of Def. Mathai, at 72-73, and there is no evidence with respect to any deficiencies in handling urgent medical requests under the current policy. Further, plaintiff does not allege that his current medical care is inadequate, only that he may be subjected to unconstitutional medical treatment policies in the future. Thus, there is no prospective relief the Court could award which would address an ongoing violation of federal law, and thus the limited exception to Eleventh Amendment immunity for such relief is not applicable. Accordingly, the Court should conclude that plaintiff’s claims against the MDOC defendants in their official capacities are barred by the Eleventh Amendment, and the Court should grant defendants’ motion for summary judgment with respect to these claims.
2. Personal Capacity Claims a. Personal Involvement
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Plaintiff also asserts his claims against the MDOC defendants in their personal capacities. The Court should conclude that defendant Caruso is entitled to summary judgment with respect to these claims, but that defendants Pramstaller and Epp are not.
The Supreme Court has made clear that liability in a § 1983 action cannot be based on a theory of respondeat superior. See Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 691 (1978). Thus, “[t]o recover damages under 42 U.S.C. § 1983, a plaintiff must establish a defendant’s personal responsibility for the claimed deprivation of a constitutional right.” Diebitz v. Arreola, 834 F. Supp. 298, 304 (E.D. Wis. 1993). In other words, in order to state a claim under § 1983 “[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights. Liability under § 1983 must be based on the personal involvement of the defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (per curiam); see also, Carr v. Parker, No. 98-6395, 1999 WL 1206879, at *1 (6th Cir. Dec. 9, 1999); Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998). As the Sixth Circuit has stated:
“Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” Taylor v. Michigan Dep’t of Corrections, 69 F.3d 73, 81 (6th Cir. 1995) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (emphasis added)) (emphasis by Taylor court); see also, Monell, 436 U.S. at 693-95; Birell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986); Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982); Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976). Furthermore, an allegation that a supervisor was aware
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of an actionable wrong committed by a subordinate and failed to take corrective action “is insufficient to impose liability on supervisory personnel under § 1983.” Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988). As the Haydon court stated: “A supervisory official’s failure to control, or train the offending individual is not actionable, unless the supervisor ‘either encouraged the specific incident or in some other way directly participated in it.’” Haydon, 853 F.2d at 429 (quoting Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982)).
Here, there is no question that defendants were not personally involved in the provision of medical care to plaintiff. See Def.s’ Br., Ex. 1, Broder Dep. Tr., at 35-36, 38-41, 44-45; Ex. 3, Cutler Dep. Tr., at 85-88. Plaintiff does allege that defendant Epp failed to properly respond to a grievance concerning his medical care, but this allegation is insufficient to establish her personal liability. See Martin v. Harvey, No. 00-1439, 2001 WL 669983, at *2 (6th Cir. 2001) (“The denial of the grievance is not the same as the denial of a request to receive medical care.”); cf. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (as against defendants whose only involvement was the denial of administrative remedies and the “failure to remedy the alleged retaliatory behavior[,]” “[t]here is no allegation that any of these defendants directly participated . . . in the claimed . . . acts[].”); Weaver v. Toombs, 756 F. Supp. 335, 337 (W.D. Mich. 1989) (“The mere fact that these defendants found plaintiff Martin’s grievance concerning the seizure to be without merit is insufficient to state a claim against them.”).
Plaintiff also alleges that defendants are liable in their individual capacities because they were responsible for the policy which caused the alleged deliberate indifference to his medical needs. Contrary to defendants’ argument, an official may be liable in his or her individual capacity if a constitutional violation is attributable to an official policy for which he or she is responsible.
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See Benas v. Baca, 159 Fed. Appx. 762, 768 (9th Cir. 2005); Young ex rel. Estate of Young v.
Martin, 51 Fed. Appx. 509, 514-15 (6th Cir. 2002); Stoneking v. Bradford Area Sch. Dist., 882 F.2d
720, 725 (3d Cir. 1989); cf. Taylor, 69 F.3d at 81. However, to succeed on this claim, plaintiff must
show not merely that the unconstitutional action was taken pursuant to the policy; plaintiff must also
show that the policy itself was unconstitutional. That is, plaintiff must show that the medical
policies themselves exhibit deliberate indifference to prisoners’ serious medical needs. See City of
Canton v. Harris, 489 U.S. 378, 388 & n.8 (1989). Further, plaintiff must show that the policy was
the “moving force” behind the underlying constitutional violation. See Board of County Comm’rs v. Brown, 520 U.S. 397, 403-04 (1997); Graham, 473 U.S. at 166.1
At the outset, plaintiff’s policy claim must fail against defendant Caruso. Defendant Caruso
was a regional administrator with no responsibility for supervising Epp or Pramstaller and no duties
with respect to the institution in which plaintiff was incarcerated. Further, there is no evidence that
she had any role in implementing the medical policies or in their application to plaintiff.
With respect to defendant Pramstaller, as MDOC Medical Director he may have had a role
in devising and implementing the medical policies. See Pl.’s Br. in Resp. to Def. Mathai &
1As this formulation suggests, and as defendants correctly note, a prerequisite to a policy claim is that there be an underlying constitutional violation. See City of Canton v. Harris, 489 U.S. 378, 385 (1989) (emphasis added) (the “first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.”); City of Oklahoma City v. Tuttle, 471 U.S. 808, 824-25 n.8 (1985) (“The fact that a municipal ‘policy’ might lead to ‘police misconduct’ is hardly sufficient to satisfy Monell’s requirement that the particular policy be the ‘moving force’ behind a constitutional violation. There must be an affirmative link between the training inadequacies alleged, and the particular constitutional violation at issue.”). Relying on the summary judgment motion of defendants Hutchinson and Mathai, defendants argue that there was no underlying constitutional violation with respect to plaintiff’s medical care. However, by a separate Report I have recommended that the Court conclude that genuine issues of material fact remain with respect to plaintiff’s underlying constitutional claim.
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Hutchinson’s Mot. for Summ. J., Ex. F, Dep. Tr. of Def. Pramstaller, at 3. Likewise, there is evidence that Epp, as the regional health administrator, was responsible for implementing health care policies. See id. at 92. Further, there is evidence which, if credited by a jury, establishes that the policies were deliberately indifferent to the urgent medical needs of prisoners. Plaintiff notes that under the MDOC policies, any outside specialty care had to be procured by (1) correctly filling out the right form, (2) having it sent to the primary care physician for approval, (3) forwarding it to CMS for approval, (4) having it go to the scheduling unit for the appointment to be made, and (5) then making sure the appointment was actually scheduled. See Pl.’s Br. in Resp. to Def. Mathai & Hutchinson’s Mot. for Summ. J., Ex. H, Dep. Tr. of Def. Mathai, at 72-76. Plaintiff has also presented evidence that this system was consistently inadequate to ensure timely care for urgent medical needs, that failures to obtain timely care could not be discovered until a prisoner’s next scheduled visit, and that the system by design prevented full communication between prison officials and medical personnel. See id., Ex. C, at 7; Ex. H., at 79; Ex. I, at 48-49, 70, 76-77; Ex. L, at 19-30; Ex. M, at 54; Ex. O, at 44-45. From this evidence, a jury could conclude that the medical policies in place were themselves deliberately indifferent to the needs of prisoners with urgent medical needs. To be sure, to succeed on this claim it will not be sufficient for plaintiff to show that he was treated with deliberate indifference by the individual medical providers. Rather, he must also show that the policies themselves were the “moving force” behind the underlying constitutional violations, and that defendants Pramstaller and Epp had a personal role in devising and implementing these policies. At this stage of the litigation, however, he has presented sufficient evidence that the policies were the moving force behind his inadequate treatment to withstand summary judgment.
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b. Qualified Immunity Defendants also contend that they are entitled to qualified immunity with respect to plaintiff’s claims against them. The Court should disagree. As a general matter, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The purpose behind qualified immunity is to protect public officials “from undue interference with their duties and from potentially disabling threats of liability.” Id. at 806. In analyzing a claim of qualified immunity, a court engages in a two-step inquiry. First, the court asks whether, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the plaintiff establishes a violation of a constitutional right, “the next, sequential step is to ask whether the right was clearly established.” Id. In determining whether a right is clearly established, a court looks first to the decisions of the Supreme Court, then to those of the Sixth Circuit, and finally to decisions of other courts. See Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. It is not enough for a general right–such as the right to adequate medical care–be established; the right must be established “in a more particularized . . . sense” relevant to the defendant’s acts or omissions. Id. At the same time, the precise conduct at issue need not previously have been held unlawful, and conduct can violate clearly established law “even in novel factual circumstances.” Hope v. Pelzer,
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536 U.S. 730, 741 (2002). “[I]n an obvious case, [general constitutional] standards can ‘clearly establish’ the answer, even without a body of relevant case law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004). Under Brosseau, as the Sixth Circuit has recently explained, a plaintiff may show that a defendant violated clearly established law by showing either that: (1) the violation was obvious under the general constitutional standards governing the asserted right; or (2) the defendant’s conduct failed to adhere to a particularized body of precedent that governs the case. See Lyons v. City of Xenia, 417 F.3d 565, 579 (6th Cir. 2005) (discussing Brosseau, 543 U.S. at 199200).
Here, there is no doubt that plaintiff’s right to adequate medical treatment for his urgent medical problems was clearly established. Nor is there any doubt that, if true, prison officials’ implementation of deliberately indifferent medical policies would violate clearly established law. Here, as noted above, there is evidence that the medical policies were wholly inadequate to address urgent medical needs, and that defendants Pramstaller and Epp were aware of this fact. This evidence, if believed by a jury, is sufficient to establish a violation of plaintiff’s clearly established rights, and thus defendants Pramstaller and Epp are not entitled to summary judgment on the basis of qualified immunity. See Young v. Martin, 172 F. Supp. 2d 919, 925 (E.D. Mich. 2001) (Hood, J.), aff’d, 51 Fed. Appx. 509, 514-15 (6th Cir. 2002); Canell v. Bradshaw, 840 F. Supp. 1382, 139394 (D. Or. 1993), aff’d, 97 F.3d 1458 (9th Cir. 1996).
c. Exhaustion Finally, defendants contend that plaintiff failed to properly exhaust his claims against them as required by 42 U.S.C. § 1997e(a). The Court should disagree. There is no question that plaintiff filed a grievance against defendants Pramstaller and Epp,
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among others, challenging the adequacy both of his individual treatment and of the medical policies in general. Further, there is no question that this grievance was pursued at each step of the grievance process. See Compl., Ex. 1. Defendants nevertheless argue that this grievance is insufficient to satisfy § 1997e(a) because it was untimely. In support of this argument, defendants rely on the Court’s decision in Woodford v. Ngo, 548 U.S. ___, 126 S. Ct. 2378 (2006). In that case, the Court held that, to satisfy the exhaustion requirement, a prisoner must comply with all procedural requirements for filing the grievance, including time requirements. See id. at 2387-89. However, Woodford is inapposite here because, even if the grievance naming Pramstaller and Epp was in fact untimely, it was not rejected by prison officials on that basis, and was instead rejected on the merits. Where the prison officials themselves overlook a prisoner’s failure to comply with procedural requirements and address the prisoner’s grievance on the merits, the procedural default rule established by Woodford is inapplicable. See Armitage v. Cherry, No. C-06-00367, 2007 WL 1751738, at *6 (S.D. Tex. May 30, 2007) (citing Johnson v. Johnson, 385 F.3d 503, 520 (5th Cir. 2004); Gates v. Cook, 376 F.3d 323, 331-32 & n.6 (5th Cir. 2004)); Jones v. Stewart, 457 F. Supp. 2d 1131, 1134, 1136-37 (D. Nev. 2006). Accordingly, the Court should conclude that plaintiff’s claims against defendants Pramstaller and Epp are properly exhausted.2 D. State Claims
Defendants also contend that they are entitled to summary judgment with respect to plaintiff’s state law claims. The Court should agree.
2Defendants initially argued that they were entitled to dismissal because plaintiff did not exhaust all of his claims against all of the defendants. Defendants have wisely withdrawn this argument in light of the Supreme Court’s determination that § 1997e(a) does not embody a total exhaustion rule. See Jones v. Bock, 549 U.S. ___, 127 S. Ct. 910, 919-21 (2007),
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To the extent that plaintiff asserts his medical malpractice claims against defendants Caruso, Epp, and Pramstaller, the claims fail as a matter of law. “Crucial to any medical malpractice claim is ‘whether it is alleged that the negligence occurred within the course of a professional relationship.’” Cox ex rel. Cox v. Board of Hosp. Managers for the City of Flint, 467 Mich. 1, 10-11, 651 N.W.2d 356, 361 (2002) (quoting Dorris v. Detroit Osteopathic Hosp., 460 Mich. 26, 45, 594 N.W.2d 455, 465 (1999)). As noted above, there is no question that these defendants did not treat plaintiff. Thus, they did not have a professional relationship with plaintiff which would give rise to malpractice liability.
With respect to plaintiff’s state law gross negligence claim, defendant Caruso is absolutely immune from this claim because she is the “highest appointive executive official” in charge of the Department of Corrections. MICH. COMP. LAWS § 691.1407(5); see Harrison v. Director of Dep’t of Corrections, 194 Mich. App. 446, 452, 487 N.W.2d 799, 803 (1992).3
Defendants Pramstaller and Epp are entitled to immunity from plaintiff’s state law claims to the extent that they were carrying out a governmental function and did not act with “gross negligence that was the proximate cause of plaintiff’s injuries.” MICH. COMP. LAWS § 691.1407(2)(c) (emphasis added). As the Michigan Court of Appeals has explained, “[g]ross negligence is defined as ‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.’” Poppen v. Tovey, 256 Mich. App. 351, 356, 664 N.W.2d 269, 273 (2003) (quoting MICH. COMP. LAWS § 691.1407(2)(c)). Further, “the proximate cause” under §
3Defendants argue that defendant Pramstaller is a “high appointed official” and thus absolutely immune from suit under § 691.1407(5). However, the immunity statute does not provide absolute immunity for “high” officials, but for the “highest” appointed executive official. Pramstaller, as Director of a MDOC department, is not such an official. Cf. Harrison, 194 Mich. App. at 452 n.1, 487 N.W.2d at 803 n.1.
14

Case 2:03-cv-75106-NGE-PJK Document 101 Filed 09/05/2007 Page 15 of 16
691.1407(2)(c) is not synonymous with the general tort requirement of “a proximate cause.” See Curtis v. City of Flint, 253 Mich. App. 555, 562, 655 N.W.2d 791, 795 (2002). Thus, “[t]o be the proximate cause of an injury, the gross negligence must be ‘the one most immediate, efficient, and direct cause of the injury or damage.’” Poppen, 256 Mich. App. at 356, 664 N.W.2d at 273 (quoting Robinson v. City of Detroit, 462 Mich. 439, 462, 613 N.W.2d 307, 319 (2000)); Curtis, 253 Mich. App. at 562, 655 N.W.2d at 795. Here, even if plaintiff could establish that their conduct was grossly negligent, plaintiff has presented no evidence that Epp’s or Pramstaller’s role in devising the medical policies was the most immediate, efficient, and direct cause of his injuries. Rather, assuming the truth of plaintiff’s allegations, apart from the cancer itself the most direct cause of plaintiff’s injuries was the allegedly deficient diagnosis and treatment of his condition by the actual medical providers. Thus, defendants Epp and Pramstaller are entitled to immunity under § 691.1407(c)(2). Accordingly, the Court should grant defendants’ motion for summary judgment with respect to plaintiff’s state law claims. E. Conclusion
In view of the foregoing, the Court should grant in part and deny in part defendant Caruso, Epp, and Pramstaller’s motion for summary judgment. Specifically, the Court should deny the motion with respect to plaintiff’s federal civil rights claims against defendant Epp and Pramstaller in their personal capacities based on their role in devising and implementing the medical policies, and should grant the motion with respect to plaintiff’s remaining federal and state law claims against defendants Caruso, Epp, and Pramstaller. III. NOTICE TO PARTIES REGARDING OBJECTIONS:
The parties to this action may object to and seek review of this Report and Recommendation,
15

Case 2:03-cv-75106-NGE-PJK Document 101 Filed 09/05/2007 Page 16 of 16
but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.

Dated: 9/5/07

s/Paul J. Komives PAUL J. KOMIVES UNITED STATES MAGISTRATE JUDGE
The undersigned certifies that a copy of the foregoing order was served on the attorneys of record by electronic means or U.S. Mail on September 5, 2007.
s/Eddrey Butts Case Manager
16

 
 Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 1 of 25

STEVEN BRODER,

UNITED STATRS DISTRICT COURT EASTERN DISTRlCT OF MIClllGAN
SOUTHERN DTVTSTON

F'l E
AUG 9 ~ 2004
U,SC, L~E,RSKTR'SICOTFCFIOCUERT
EASl i:RN MICHIGAN

Plaintiff,
v.

CASR NO, 03-CV-75106-GER-P.lK JUDGE GERALD E, ROSEN MAGISTRATE JUDGE PAUL I. KOMTVES

CORRECTIONAL MEDICAL SERVICES, INC., ct al.

Defendants, _______________________1

REPORT AND RECOMMENDATION REGARDING DEFENDANT CMS'S MOTTON TO DISMISS (Doc. Ent. 8) and
PLAINTIFF'S MOTION TO COMPEL (Doc. Ent. 20)
Table of Contents

L

RECOMMENDATION ..... , ....................................................... . 2

II.

REPORT , ... ,.,.,., ........ ,. . , . , . , . . . . . . . . . .

. ....... , . , . , . , . , .

2

II,

Procedural History, , , , , , , , , , , , .... , , , , , . , , , , , , , , , , . , , , , , , , . , . , , , , , , .. , , , , , .. , " 2

D,

Defendant eMS's Motion to Dismiss and Plaintifrs MOtiOl1 to Compel """, ... ,"""" 3

C.

Applicahlc Law "

.... , , , , , . , .. , , , , , , . , , , , , , , , . , , , , , , , , . , . , , , , , . , " 3

1.

28 U,S,C, § 1915A (Screening) , , , , , , , , , , , , , , .. , , , , , , , , , , , , , , , , ... , , , , , , , " 3

2.

42 U,S,C, § 1997e ("Suits by prisoners") ""',...

""""',...

4

D, Analysis . , . , , .... , , , , , . , . , , , . , , . , , , , , , ... , , , , , , , .. , , , , , , , , , , , , , , , ... , , , , , , , " 5

1,

Plaintiff provides documentation in support of his claim that he has exhausted his

administrative remedies. ____ .... . ____ , , .

. ..... , ... , , __ , , , , . , , 5

2,

Notwithstanding this documentation, the Court should conclude that plaintiff has

exhausted his claims as to defendant CMS but only to Ihe extent they are ,uppurted by the

second h,rr1cvancc. .

............... , , , , , , ............ , , , , , , , ,. 7

3,

The Court should enter an order granting in part plaintitl's motion to compel discovery,

but only to the extent it seeks documents from dcfendant eMS, , , ' , , ' , ... " " " 19

4.

The Court should exercise supplemental jurisdiction over plaintifrs state law clai/llS,

" " " " " " " " " " " " " " " " " " " " " " " " " " " " " " " " " " 20

III. NOTICll TO PARTIES RIlGAlWING O.llJECTIONS ,,',' ,,",' ,',"""",.,'" , .. , 24

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 2 of 25
I. RECOMMENDATION: The Court should grant in part and deny in part defendant CMS's motion to dismiss. (Doc. Ent. 8). Specifically, the motion to disnliss should be denied to the extent it seeks dismissal of claims against eMS to the extent they are supported by plaintiffs second grievance and to the extent it seeks dismissal of plaintill's state law claims. The motion to dismiss should be granted in all other respects.
lfthe Court agrees with this recommendation, the Courl should grant plaintiff's motion to compel discovery, but only to the extent it seeks documents from defendant CMS. (Doc. Ent. 20). It should be denied in all other respects.
Finally, the Court should enter an order requiring plaintiff to show cause why the complaint against the unserved defendants (Antonini, Axelson, Trimble, Bey, Mathai, Clark, and Grayson) should not be dismissed for failure to comply with Fed. R. Civ. P. 4(m). ll. REPORT:
A. Procedural History
Plaintiff is currently incarcerated at Parnall Correctional Facility (SMT) in Jackson, Michigan, where he is serving a sentence for first degree criminal sexual conduct. On December 24, 2003, plaintiff filed a complaint against defendants Patricia 1. Caruso, described as the director of the Michigan Department of Corrections (MDOC); George Pramstaller, D.O., described as the MDOC's chief medical officer; Henry Grayson, described as the warden at SMT; Jan Epps, B.S.N., R.N., described as the regional health care administrator; Correctional Medical Services (CMS), described as a for-pro lit corporation licensed 10 do business in Michigan; am! Audberto Antonini, M.D., Benzi Mathai, M.D., Bey, M.D., Malcolm Trimble, M.D., John Axelson, M.D., and Ray H. Clark, M.D., desclibed as agents or employees ofCMS. (Doc. Ent. 3 [Camp!.] at 2-3 ~~ 6-16).

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 3 of 25
Plaintiff's claims include a 42 U.S.C. § 1983 Eighth Amendment claim of deliberate indifference to serious medical needs; as well as state law claims of gross negligence, reckless indifference, and willful and wanton misconduct; and negligence and medical malpractice. Compo at 8-13 'I~ 91-129. Plainliffseeks compensatory, exemplary, and punitive damages; declaratory, equitable, and injunctive relief; and costs, attol11ey fees, and any other relief the Court deems appropriate. Compl. at 13-14.
Defendants Caruso, Pranlstaller, Grayson, and Epp filed an answer to the complail1t on April 22, 2004. B. Defendant eMS's Motion to Dismiss and PlaintifPs Motion to Compel
On February 24,2004, defendant CMS filed a motion (0 dismiss. (Doc. En!. 8 (Mtn.]). Defendant argues that "plaintiff['s] complaint must be dismissed for failure to comply with 42 U.S.C. § 1997e(a)[,]" and "the Court should decline supplemental jurisdiction over plaintiff's pendant state law claims pursuant to 28 U.S.c. § 1367(a)." Mtn. at L On March 17, 2004, pJain(ifffiled a response. (Doc. Enl. 9 [Rsp.]).
On June 29, 2004, plainti rr l11ed a motion to compel answers \0 discovery requests as to
defendants CMS, Antonini, Axelson, Trimble, Bey, Mathai, and Clark. (Doc. Ent. 20). C. Applicable Law 1. 28 U.S.C. § 1915A (Screening)
The Court is required (0 screen prisoner civil rights complaints sua sponte. 28 U.S.C. § 1915A states:
(a) Screening.--The court shall review, before docketing, if feasible or. in any event, as soon as practicable after docketing, a complaint in a civil action in which
3

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 4 of 25
a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) Grounds for dismissaL--On review, thc court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, iflhe complaint-(I) is frivolous, malicious, or fails to state a claim upon which rclicfmay be granted; or (2) seeks monetary rclicffrom a defendant wll(l is immune Irom such relief. (0) Definition.--As us cd in this section, the term "prisoner" means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program. 28 U.S.C. § 1915A. "Section 1915A is restricted to prisoners who sue government entities, officers, or employees." AlcGore v, Wrigglesworth, 114 F.3d 601,608 (6th Cir. 1997), "Further, § 1915A is applicablc at tIle initial stage of the litigation.. ,", Td. 2. 42 U.S.c. § 1997e ("Suits by prisoners") Title 42 orthc Unitcd States Code governs the public health and welfare. Section 1997c governs 42 U,S,C. § 1983 suits by prisoners, It states, in pertinent part, "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisol1er confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted," 42 U,S.C, § 1997e(a), I "[Tlhe PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general

'As defendant CMS points out, Michigan law also requires

exhaustion. See Mich. Compo Laws § 600.5503(1) ("Aprisoner

shall not file an act

son

until the

prisoner has exhausted all available administrative remedies.").

4

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 5 of 25
circumstances or particular episodes, and whether they allege excessi ve force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
With regard to the dismissal of prisoner lawsuits, 42 U.S.C. 9 I997c(c) provides:
(1) The court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune Irom such relicr (2) In the event that a claim is, on its face, fiivolous, malicious, fails to state a claim upon which relief can be granted, or secks monetary relief' from a defendant who is immune from such relief, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies. 42 U.s.C. § 1997e(e)(1)-(2). "Federal courts should not adjudicate any such claim until after exhaustion unless the complaint satisfies § 1997c(c)(2)." Browil v. Toomhs, 139 F.3d 1102, 1104 (6th Cir. 1998). D. Analysis 1. Plaintiff provides documentation in support of his claim that he has exhausted his administrative remedies. The MDOe prisoner grievance policy directive sets forth a three-step grievance process. MDoe Policy Directive 03.02.130 ("Prisoner/Parolee Grievances"), effective 12/19/03, "R-IL Attached to plaintiffs complaint arc copics of four grievances and the related appeals. On Novemher 3, 2001, plaintiff completed a Step 1 grievance form "to document the
situation and attempt to eliminate any further delays in [his1medical treatment." SMT-01-11-
1478-120-1. The Step 1 response memorandum is dated December 8, 2001. On December 3,
2001, plaintiff completed a Step rr grievance appeal fO!TI1, stating that there had not been a Step I
5

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 6 of 25
answer. The grievance coordinator received the appeal the following day. The Step II response memorandum from derendant Epp is dated January 24,2002. Plaintiff completed a Step ITT grievance appeal on or about December 25, 2001, stating that he did not receive a Step II response and that his Step I interview was untimely. In a Ie\ler dated January 27,2002, plaintiff sought the status of his Step TIT grievance appeal.
On July 12, 2002, plaintiff completed a Step I grievance form regarding "the delay in
diagnosis and treatment of [hisJ cancer!,]" and against "the following doctors and staff ..., and
any other treating personnel, supervising personnel, and any and all other individuals or
organizations involved in the diagnosis, treatment, or referral of[his1condition." SMT-02-07-
0818-12D-2. Included in the attached list of doctors and staff are PrRmstaller, Grayson, Epps, "[a]ny and all relevant CMS personnel", Antonini, Mathai, Trimble, Axelson, and Clark. Rsp. Ex. A. The Step Tresponse memorandum is dated August 5, 2002. On August 7, 2002, plaintiff' completed a Step II grievance form, stating that the Step I response was not timely. PlaintiCPs appeal was received by the grievance coordinator on August 9, 2002. The Step II response memorandum from defendant Epp is dated December 5, 2002. Plaintiff completed a Step TIT grievance appeal, stating that he had not received a Step 11 response and taking issue with certain dates.
On March 7, 2003, plaintiff completed a Step Tgrievance form in which he mentioned an October 2002 visit with Dr. Komak and complained ofa lack of (reatment and all unanswered kite for medical records. SMT-03-03-2410-12-1. It was received by the grievance coordinator on March 10, 2003. The Step I response memorandum is daled March 13, 2003. Plaintiff
completed a Step II grievance appeal on March 27, 2003. The Step n response memorandum
6

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 7 of 25
from defendant Epp is dated May 2,2003. On or aboul April 28, 2003, plaintiff completed a Step III grievance appeal. The Step III grievance response is dated November 7, 2003.
On April 22, 2003, plaintiff completed a Step I grievance fom" mentioning Dr. Kornak, Dr. Tsein, Dr. Camann, Dr. Mathai, and alleging that his "post-treatment follow-up care, like the original failure tIl diagnose and failure to treat, has violated [his] constitutional rights under the
Eight[h1Amendment and MDOe policy." SMT-OJ-04-2627-12-1. It was received by the
grievance coordinator on April 24, 2003. The Step I grievance response mcmorandum is datcd June 4,2003. On May 20,2003, plaintiff completed a Step II grievance appeal, stating that there was no timely Step I response. The Step II response memorandum 1rom defendant Epp is dated June 10,2003. Plaintiff completed a Step III grievance appeal, slaling that he had nol received a Step I response and taking issue with the Step 11 response. The Step III grievance response is dated November 18,2003. 2. Notwithstanding this documentation, the Court should conclude that plaintiff has
exhausted his claims as to defendant eMS hut only to the extent they are supported by the second grievance. Defendant CMS argues that "plaintiff's complain( against [it] must be dismissed for failure (0 comply with 42 U.S.C. § 1997c:(a)." Mtn. Br. at 3, 3-5. Def'endant eMS argues that "[p]laintitIhas not shown0xhaustion through Step TIT of the MDOC grievance procedure as to [d]cfcndant eMS. Plain1ifTpresents no evidence that he pursued the grievance procedure in any manner againsl CMS. Because [p]laintiffhas failed to name eMS in his grievance, and failed to allege any complaints against CMS in lhe grievances provided, [p]laintiffs complaint against CMS must be dismissed pursuant (0 Fed. R. Civ. [P.] 12(b)(6) and 42 U.S.C. § 1997e(a)." Min. Br. at 5.
7

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 8 of 25

Plaintiffc1aims that he "has exhausted his administrative remedies." Mtn. Br. at 7. 7·12.
a. Plaintiffs four grievances establish exhaustion as to the issues aud defeudants grieved. Plaintiff argues that he "attached proof of exhaustion to his complaint[.]" Rsp. at 9. It is
clear rollowing examination ol'the aforementioned grievances and appeals that plaintiff exhausted the grievance process as to the subject matter and defendants grieved. As the Sixth Circuit has stated, plaintiff has the burden to prove that he or she has exhausted his or her
administrative remedies. In Brown v. Toombs, 139 F.3d 1102 (6th eir. 1998) (per curianl). the
Sixth Circuit held thaI under 42 U.S.C. § 1997e(a), "prisoners filing § 1983 casl;ls involving prison conditions must allege and show that they have exhausted all available state administrative remedies. A prisoner should attaeh to his § 1983 complaint the administrative
decision, if available, showing the administrative disposition of his complaint." Brown, 139 F.3d
at 1103.' Plaintiff has provided the court with copies ofhis grievances, (he appeals, and in most cases the disposition.
b. These grievances were exhausted prior to the iustant case's tiling. Plaintiff claims he "appealed all of his grievances to thc final stagel.!" Rsp. at 8"9.
Although defendant maintains, with respect to grievances SMT·OI-II-1478-12D-I and SMT-02-

'The Sixth Circuit appears to be alone in placing

burden

on plaintiffs to show exhaustion. The other circuit courts that

have considered

quest

ze lack exhaustion as

an affirmative defense. See Massey v, Helman, 196 P.3d 727, 735

(7,1> Cir. 1999) i Jenkins v. Haubert, 179 P.3d 19, 29 (2d Cir.

1999) i Wendell v . .llsher, 162 F. 3d 887, 890 (5 th Cir. 1998).

Thus,

those circuits the defendant bears the burden of

establishing that the claims are not exhausted, see Massey, 196

P.3d at 735, and the defense is subject to waiver and forfeiture.

see Perez v, Wisconsin Dep't of Correc ons, 182 F.3d 532, 536

(7th Cir. 1999); Wendell, 162 F.3d at 890,

8

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 9 of 25
07-0818-12D-2, that plainti ffhas not shown completion of the grievance process prior to filing the instant case, Mtn, Br, at 4, the Court should disagree,
Claims based upon grievances which were not exhausted prior to bringing suit are barred
by the Sixth Circuit's cases. Freeman v, Francis, 196 F,3d 641, 645 (6th CiL 1999) (citing
Brown v. Toombs, 139 F.3d 1102 (6th CiL 1998), cert, denied, 525 U,S. 833, 119 (1998)) ("The plainlanguagc of the statute makes exhaustion a precondition to tiling an action in federal court[,j"). See also Baxter v, Rose, 305 F,3d 486, 489 (6th Cir. 2002) (internal citation and fbotnote omitted) ("A plaintirrwho fails to allege exhaustion ofadminislrative renledies through 'paIiicularized averments' does not state a claim on which relief may be granted, and his complaint must be dismissed sua sponte, Our rule in McGore [[v, Wrigglesworth, 114 FJd 601 (6th Cir. 1(97)[3]] requires that a plaintiff, who fails to make a suf'llcient allegation ofexhaus(ion in their initial cmnplaint, also not be all.owed to aIllend his complaint to cure the defect. If the plaintiff has exhausted his administrative remedies, he may always reme his complaint and plead exhaustion with sufficient detail (0 meet our heightened pleat-ling requirement, assuming that the relevant statute oflimi(ations has not run,"),

'Another portion of the MeGore decision has fallen under

some criticism. McGore held, in part, that "[u]nder § 1915(b),

prisoner must

fil

s

ess of

merits of the appeal." MeGon" , 114 F.3d at 610-611. Although

the Sixth Circuit later recognized that McGore's position

differed from that of other circuits, the Court stated that

"[t] only

erpretation of this language is that

regardless of the 'good faith' of the appeal, a prisoner can

appeal a district court decision in forma pauperis if he pays the

fee pursuant to the schedule of § 1915(b)." Stiiilrks v. Reno, No.

98-3818, 2000 WL 3'53526, **3 (6th eir. 2000) (unpublished).

9

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 10 of 25

The Step III grievance in SMT-Ol-l1-1478-12D-l was allegedly filed on or about December 25,2001, and it is not clear when the Step ITT glievance in SMT-02-07-0818-12D-2 was filed. However, it is not fatal that plaintiff has not supplied Step III grievance responses. In the case at bar, plaintiffs complaint was not filed unlillate 2003 - well beyond the dates the Step III grievances were likely filed and, therefore, virtually eliminating the possibility that plaintiff was 100 impatient in filing this lawsuit.4 c. Plaintiff has only exhansted his claim(s) against eMS to the extent they are
snpported by the second grievance. Naming an agent or employee in a grievance does not constitute exhaustion on the part of the institutional dcfcndant. However, the second grievance indirectly mentions eMS sufficiently to provide notice and satisfy the exhaustion requirement. Defendant eMS contends that detendants Mathai and Antonini "were independent contractors with eMS, acting as primary care physicians to certain inmates incarcerated by the MDOc''' l'vItn. Br. at I. Defendant eMS argues thaI plaintiffs grievances do not mention eMS. Mtn. Br, at 4. It claims that plaintiff's complaint "fails to state specific avemlents which demonstrate the exhaustion of [his] administrative remedies cOl1ceming the claims against [it]." Mtn. BI. at 4. Plaintiff argues that "eMS was properly named andlor identified in the gricvanccs[.j" Rsp. at 9, 9-11, Several Sixth Circuit cases address the need for grievances to be specific in order to properly grieve a given defendant. In Knuckles EI v. Toombs, 215 F.3d 640 (6th Cir. 2000), the Sixth Circuit stated that "a prisoner must plead his claims with specificity and show that they

'Plaintiff claims that at least one of these two Step III

grievances was sent to the wrong inmate. Rsp. at 8, Rsp. Ex. B

[Affid. of Sandra Girard, Executive Director - Prison Legal

Services of Michigan, Inc. J •

to aintiff, MDOC did

not answer these two Step III appeals. Rsp. at 9.

10

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 11 of 25
have been exhausted by attaching a copy of the applicable administrative dispositions (0 (he complaint or, in the absence of written documentation, describe with specificity the administrative proceeding and its outcome. The reason for the requirement (0 show with specificity both (he claims presented and the fact of exhaustion is so (hat the district court may
intelligently decide if the issues raised ean be decided on the merits." Knuckles EI v. Toombs,
215 F.3d 640, 642 (6th Cir. 2000). Clearly, plaintiffhas attached to his complaint copies of the administrative dispositions in the four grievances except where he did not receive a Step III response, in which case plaintiff slated so.
Tn Curry v. Scoll, 249 F.3d 493 (6th Cir. 2001), the Sixth Circuit affirmed tile trial court's dismissal ofplain(iffs claims against a defendant named Howard because he was not mentioned in plaintiffs grievances. Curry, 249 F.3d at 505. Tn so doing, however, (he Court slated that "[l)he claim against Howard ... is a separate claim, against a separate individual, premised on a separate and independent legal theory." [d. at 505.5 "The requirement that a prisoner file a grievance against the person he ultimately seeks to sue does not impose a heightened pleading requirement upon would-be § 1983 plaintiffs. It only assures, as envisioned under the PLRA, that the prison administrative system has a chance to deal with claims against prison personnel before those complaints reach federal court." ld.
lnBurton v. Jones, 321 1'.3d 569 (6th Cir. Feb. 28,2003). the Sixth Circuit stated:
We understand [the 1·1DOC grievance I policies to reqllire that a prisoner seeking
to administratively exhaust a claim against a prison official describe the alleged
5"Howard [was] the corrections officer who witnessed Scott's assault on them and allegedly failed to intervene." Curry v. Scott, 249 F.3d 493, 504 (6th Cir. 2001).
11

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 12 of 25
mistreatment or misconduct at Step 1 of the grievance process. By negative implication, we understand these policies to preclude administrative exhaustion of a claim against a prison orf1cial ifthc first allegation ofmistreatment or misconduct on the part of that official is made at Step IT or Step III of the grievance process. We do not, however, understand these policies to preclude a prisoner fr0111 presenting additional tactual detail at Step 11 and Step III that clarifies an allegation made at Step 1 as a means ofjustifying an appeal.
Burton, 321 F.3d at 574 (internal citation omitted). Furthermore, the Court stated:
[FJor a court to find that a prisoner has administratively exhausted a claim against a particular defendant, a pris()l1er must have alleged mistreatment or misconduct on the part of the defendant at Step I of the grievance process. In describing the alleged mistreatment or misconduct, however, we would not require a prisoner's grievance to allege a specific legal theory or facts that correspond 10 all the
required elements of a particular legal theory. Rather, it is sl{[Jicient jii,. a court /0
find that a prison!;:r', Step 1problem statement gave prison officials fair notice of the alleged mistreatment or misconduct thatforms the basis o.fthe constitutional or statutory claim made against a defendant in a prisoner's complaint.
Burton v. Jones, 321 F.3d 569, 575 (6'h Cir. 2003) (emphasis added).
Wilh these cases as a backdrop, the Court should consider two issues. One, whether
naming an agcnt or employee in a grievance constitutes exhaustion on the part ofthe institutional
employer. Two, whether indirectly mentioning eMS in one (If the grievances constitutes
exhaustion as to the claim within that grievance.
I. eMS claims that plainti ff has not satislicd the Burton requirements, as it is not
named in the grievances. Mtn. Br. at 4. According to defendant eMS, "[p]laintiffs grievances
attached to his complaint make absolutely no allegations against eMS at all." Mtn. Br. at 4. On
the other hand, plaintiffnotes that "CMS is a corporation, and a corporation can only act[]
through its employees and agelils. Thus, when a prisoner complains in detail about an ongoing
I'ailure orhis medical care, eMS (the corporation), like MDOC itself, has sufficient notice of the
12

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 13 of 25
problem to meet the 'fair notice' requirement of exhaustion." Rsp. at 10. Plaintiff argues that his
grievances amply notified MDOC of plaintiff's complaints against defendant eMS, as it is the
sole medical care provider for MOOC patienls, and MOOC and defendant CMS "must have been
aware that [plaintiff] was complaining of eMS and its medical staff in his grievances." Rsp. at
10.
At least a few cases have confronted the issue of whether naming an agent in a grievance
satisfies the exhaustion requirement as to the institutional defendant. In Stevens v. Gooyd, No. 99
Civ. lI669(LMM), 2003 WL 21396665 (SD.N.Y. June 16,2003) (unpublished), plaintiff filed a
complaint based upon 42 U.S.C. § 1983 and, among others, named Correctional Physicians
Services, Inc. (CPS) as a defendant. In considering "[ w]helher administrative remedies were
available against CPS", the court stated:
The Court tlnds that CPS has not met its burden of showing that it is subject to the TGP at Green Haven. CPS merely asscrts that its f(!netions are so intertwined with those of DOCS personnel that it is not possible to develop individual grievance procedures tor CPS. (CPS Reply Mem. aIS.) However, "[n]o evidence has been submitted which suggests that plaintifrs claims against [CPS] could have been handled internally within the DOCS grievance procedure or even that the prison grievance tribunal would have had any authority to take some responsive action to [Lynch's] complaints." Borges v. Adm'rfor Strong Mem'l Ilosp.. No. 99 eiv. 6351FE, 2002 WL 31194558, at *3 (W.D.N.Y. Sept.30, 2002). Therefore, CPS's motion to dismiss for failure to exhaust administrative remedies is denied.
Stevens, 2003 WL 21396665 at *5.6
'In the Second Circuit, ., [w]hen a defendant raises a prisoner's lure to comply with the PLRA's exhaustion requirement, the failure is properly assessed as an affirmative defense.'" Id. (quoting Arnold v. GOetz, 245 F. Supp. 2d 527, 532 (S.D.N.Y. 2003)). Because this is different from the Sixth Circuit's position, this case is only mildly persuasive.
13

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 14 of 25
However, the Court should also be guided by relevant decisions from this district. In
Alder v. Correctional Medical Services, Case No. 02-CV-70997-DT (E. D, Mich.) (Duggan,.I.),
derendant CMS filed a motion for summary judgment in which it argued that plainti ffhad not
specifical1y grieved CMS, I suggested that plaintifrhad exhausted his administrative remedies as
to his clail11(s) against defendant CMS because plaintiffs claim against defendant CMS was not
separate and distinct from his claim that he was denied appropriate medical care over a nine and
one-half month period. Alder, Case No. 02-CV-70997-DT, 9/25/02 R & R (doc. cnt. 41) pp. 15-
18. However, citing Curry, the Court opined that plaintiffs grievance against defendant Harvey
could not serve to exhaust plaintilTs claims against eMS. [d. 11/18102 Order (doc. ent. 46) p.
12. Latcr, the Sixth Circuit affirmed the district court's grant of summary judgment for eMS on
the basis of non-exhaustion. Alder, No. 02-2496, 2003 WL 22025373, **3 (6th Cir. Aug, 27, 2003), cert. denied, 124 S. CL 1718 (2004).
In VcmDiver V. Martin, 304 F. Supp. 2d 934 (E. D. Mich, 2004) (Cleland, .I.), the Court
found that plaintiO'did not name eMS in his Step I in his first step grievance. VanDiver, 304 F. Supp. 2d at 944. The Court then stated:
In his Step I grievance, Plaintiff consistently grieves the conduct of Defendants Debruyn and King throughout his description of his complaints. Plaintiffmakes
no mention of Correctional Medical Services in Step rof his grievance until the
final paragraph where he states: "Should this matter not be resolved and I become subject to foot Amputation, Nurse King, Health Manager Susan Debru)11, Health Care and eMS will be liable in a large monetary damages." Plaintirrs mention of Defendant CMS, however, is not done "against the person or persons he ultimately seeks to sue:' Cuny, 249 F.3d at 505. Simply listing the parties that Plaintiffwill sue !{the matter is not resolved and (lPlaintiff undergoes further injury, docs not name an individual responsible for an alleged injury in the grievance procedure, Nor is it sufficient to establish what action or inaction taken by CMS is being challenged. The grievance does not indicatc C1'vlS as a party who caused his injuries and against whom Plaintiffpreselltly seeks to recover.
14

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 15 of 25
Therefore, the court agrees with the magistrate judge that Plaintiff has failed to show that he pursned grievances against Defendants Martin, Epp, Glaspen, and Correctional Medical Services at all levels of administrative review, or thaI Plaintiff was precluded from doing so.
Id. at 944.
In light ofAlder and VanDiver, the court should reject plaintiffs argument, for purposes
of § 1997e(a), that defendant eMS "must have been aware that [plaintin] was complaining of CMS and its medical staff in his grievances" Rsp. at 10.
2. Plaintiff argues that defendant eMS "had' fair notice' of [plaintiffs] complaints against it" Rsp. at 9 (citing Burlon, 321 F.3d at 575). Plaintiff's second grievance was flIed against "any other treating persollnel, supervising personnel, and any and all other individuals or organizations involved in the diagnosis, treatment, or referral of my condition." Additionally, the list attached to this grievance identified "[a]ny and all relevant CMS personnel" as staff grieved. Rsp. Ex. A. Therefore, plainti fr argues, he "could not have made it clearer that his complaints of medical mismanagement were intended to run against anyone and everyone who had any connection to his diagnosis, treatment, and aftercare, including MDOC's contract medical provider, CMS." Rsp. at 10.
The Court should agree and conclude thaI "prison officials have [] heen given fair notice ofthe claim being litigated" against defendant CMS to the extent jt is supported by the second
grievance. Burton, 321 F.3d at 575. Unlike plaintiff VanDiver, plaintiffhere does not frame as
contingent his grievance against the "organizations" or "CMS persollnel". Furthermore, plaintiff was as descriptive as possihle without using CMS's fannal name. Although the meaning of plaintitT's la11guage may be debated (i.c., eMS did not directly diagnose, treat, or refer his
15

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 16 of 25
me condition), the lay iJ1terpretatiol1 orthis language is that plaintifrintended to the second
grievance against eMS as an institution. d. The content of the second grievance sufficiently exhausts plaintiff's c1aim(s) against
defendaut eMS.
Defendant CMS argues that the grievances do not mention the issues alleged against it in the complaint. Mtn. Br. at 4. If the Court agrees with my foregoing recommendation, then it need only consider defendant CMS's argument as it relates to the second grievance.
Plaintiff's second grievance states as follows: "Having had a medical complainllodged in approximately March of2001 and left in an untreated state until April of2002, where cancer was detccted in January of 2002 has caused the necessity of filing this grievance. I was hospitalized for the majority of April, and portions of May and June, due to delays in diagnosis and treatment." The grievance fhrther states: '" am flling this grievance to complain about the delay in diagnosis and treatmcnt or my cancer, which caused months ofmmecessary pain and medical complications. 1want to make sure this never happens again and want compensation for the harm' have suffered:'
Plainti rrs Eighth Amendment claim is set forth at CampI. ~I~ 91-100. Plaintiff describes
defendant CMS as helping "formulatc the policies, procedures, and staff training related to medical care in MDOC facilities," and implementing those protocols. Comp!. ~ 10. After alleging certain duties of Caruso, Pramstaller, Grayson, and Epps, plaintiff contends that "[dJetendants CMS and its employees have the same duty to implement policies and procedures to ensure timely and effective treatment oflife-threatening disease, and to ensure thai such treatment is in fact provided." Comp!. 1111 88-90. He also contends that "[tJhe violation of
16

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 17 of 25
[plaintiff's] Eighth Amendment rights stemmed in part from MDOC lmd CMS customs and policies that allowed or facilitated care that was deliberately indifferent, wanton, oppressive, or
reckless." Comp1. ~ 95. In Carrion v. Wilkinson, 309 F. Supp. 2d 1007 (N. D. Ohio Mar. 10,2004), the plaintiff
filed a complaint against, among others, the Dircctor of the Ohio Department of Rehabilitation and Correction, claiming that he "failed to implement or promulgate the proper mles and regulalions regarding the diabetic diet for prisoners with diabctcs(.)" Carrion, 309 F. Supp. 2d at 1013. Plainliffdid not raise this issue with the Institution in his grievances. [d. The court stated lhat "[w]hen filing a grievance before an administrative agency, an inmate ca\UlOt be expected nor required to fOITmliate a legal theory in his grievance as ifhe was filing a complaint before a court. Neither is he required to use the precise language adopled by the courts. [Plaintiff] stated in his Notification of Grievance that 'this Tnstitution docs not confoml to the ADA dietary standar[d]s and the nutrition provided to this diabetic inmate is not recom[m]cndcd b[yJlhe
ADA dietary administration.'" lei. The court concluded that "[t]his Slalenlent can be read as
raiSing the issue of the Institution's policy or custom on diabetic ilUnatcs' diet, which is sufficient for the purpose of exhausting administrative remcdies." [d.
The Court should find Carrion persuasive. Plainti fr grieves the institutional defendant
with regard to his medical treatment and brings a cause of action against thai defendant with regard to relevant policy, procedures, and failure to train. The Court should deny the motion to dismiss to the extent it contends that the arguments against eMS in the second grievance differ fTOlll plaintiffs claims against it.
17

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 18 of 25
c. Plaintiff's case should not be dismissed on the basis that plaintiff has not fully exhausted the claims in his complaint.
Defendant CMS also argues that, "[e]ven in cases where some defendants or some claims have been exhausted in lhe grievance procedure, sometimes referred to as a 'mixed' case of exhausted and uncxhausted claims, the case should he still dismissed lor failure 10 fully exhausl all orthe claims." Mtn. Br. a\4-5 (citing Smeltzer v. Hook, 235 F. Supp. 2d 736, 744·746 (W. D. Mich. 2002) (supporting total exhaustion».
Plaintiff argues that "[t]hc Sixth Circuit has rejected the lolal exhaustion rule[.]" Rsp. at 11. Plaintiff relies upon Hartsfield v. Vidor, 199 F.3d 305 (6th Cif. 1999), and Burton v. Jones, 321 F.3d 569, 575 n.2 (6th Cir. Feb. 28,2003) ("the Hartsfield holding illustrates that a prisoner's lawsuit, which alleges multiple claims against multiple defendants, is not vulnerable to dismissal under § 1997e(a) simply because the prisoner has failed to exhaust a particular claim as
to a specine defendant."). Rsp. at 11·12. I am persuaded by Burtun' s interpretation of Hart~field. See alsu Blackmon v. Crawford,
305 F. Supp. 2d 1174, 1180 (D. Ncv. 2004) ("given the split in the federal courts over the total exhaustion rule, the unclear directive of the plain language of the PLRA, and the competing policy interests, we do not believe that the "total exhaustion" rule should be applied in the instant circumstance without pelmitting the plaintilTto amend his complaint to delete the unexhausled claim or claims. "); Alexander v. Davis, 282 F. Supp. 2d 609, 612 (W.D. Mich. Sept. 22, 2003) ("the task of implementing a total exhaustion rule without express guidance from the higher courts does not serve the interests of the public in understanding the law and conforming to the law."); and Jenkins v, Toombs, 32 F. Supp. 2d 955, 959 (W. D. Mich. 1999) (42 U.s.C §
18

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 19 of 25

1997e(a) "does not impose a total exhaustion requirement on prisoner civil rights litigation."). Therefore, the Court should conclude that complete dismissal ofplaintifTs case on this basis is inappropriate.7
3. The Court should enter an order granting in part plaintifrs motion to compel discovery, but only to the edent it seeks documents from defendant CMS.
a. Named defendants Antonini, Axelson, Trimble, Bey, Mathai, Clark, and Grayson are not properly before this Court.
On February 24,2004, attorney Ronald W. Chapman entered all appearance on behalf of defendant CMS. On April 12, 2004, attorney Langschwager entered an appearance on behalf of defendants Caruso, Epps, and Pramstaller.
Apparently, the remaining nanled defendants (Antonini, Axelson, Trimble, Bey, Mathai, Clark, and Grayson) have not been served. Pursuanllo Fed. R. Civ. P. 4(m), plaintit1' should have served this defendant with the instant complain\ by April 22, 2004. Therefore, the Court should deny plaintiff's hme 29, 2004, motion to compel as to defendants Antonini, Axelson,

7MDOC PD 03.02.130 governs "Prisoner/Parolee Grievances"

[effective 12/19/03]. Paragraphs E and F set forth the

appropriate

eet matter

The policy provides,

in part, that "[a] grievant may not grieve the content of policy

or procedure; such grievances shall be rejected by the grievance

coordinator." MDOC PD 03.02.130, effective 12/19/03, ~ E. Non-

e issues

lude " [i]ssu8s not within

authority of

the Department to resolve." ~ F(3), It is possible that

plaintiff's claims against CMS, to the extent they attack policy

and procedure, would have been rejected as non-grievable.

However,

is not clear whether there is an available

remedy as to plaintiff's claim against CMS or whether MDOC has

jurisdiction to review a claim against CMS, and because plaintiff

does not raise this availability argument in his response, I do

not address it in this report.

19

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 20 of 25
Trimble, Bey, Mathai, and Clark. See Zenith Radio Corp, 11, Hazeltine Research. rnc" 395 U.S.
100, 110 (1969) ("The consistent constitutional mle has bcen that a court has no power to adjudicate a personal claim or obligatiol1 unless it has jurisdiction over the person ofthe defendant."), Additionally, the Court should enter an order requiring plaintiff to show cause why the complaint against these unserved defendants shO\lld not be dismissed for failure to comply
with Fed. R. Civ. P. 4(m).
b. The Court should grant plaintifrs motiou to compel as to defeudant CMS. ";\ response to a 11(Jl1dispositive l11otionl11ust be filed within 14 days after service of the
motion," E. D. Mich. LR 7.l(d)(2)(B), Assuming three days for mail, defendants' response was
due July 16, 2004. Furthermore, the local rules ofthis Court provide that "[al respondent opposing a 1110tion must file a response, including a brief and supporting documents thcn available," E. D. Mich. LR 7.1 (b). As of this writing, defendant eMS has not filed a response to plaintiffs June 29, 2004, Illation to compel. Therefore, the Court should enter an order granting plaintiffs Illotion to compel ((J the extent it seeks documents from defendant eMS.
4. The Court should exe,'cise supplemental jurisdiction over plaintifrs state law
claims.
In addition t(J his Eighth Amendment claim, plainti fr alleges state law claims of gross negligence, reckless indifference, and wi II ful and wanton misconduct, Compl. at ~~ I 01-105; as well as negligence and medical malpractice, Campi. at ~~ 106·135, a. Even though dismissal based upon fa.iIure to disclose prior cases is mandated by
Mich. Compo l,aws § 600.5507, procedure with regard to supplemental ,jurisdiction is governed by the Federal Rules of Civil Procedure.
20

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 21 of 25
Mich. Compo Laws § 600.5507 ("Claim of indigency in civil actions concerning prison
conditions, prohibitions") provides that U[aJ prisoner who brings a civil action or appeals a judgment concerning prison conditions shall, upon commencement of the action or initiation of
the appeal, disclose the number of civil actions and appeals that the prisoller has previously
initiated." Mich. Compo Laws § 600.5507(2). The statute further provides that "[t]he court shall
dismiss a civil action or appeal at any time, regardless of any filing fee that may have been paid, ifthe court finds any of the following: ... (b) The prisoner fails to comply with the disclosure
* requirements of subsection (2). Mich. Comp. Laws 600.5507(3)(h).
Defendant contends that plaintiffs state law claims (Counts II and III) must be dismissed for failure to comply with Mich. Comp. Laws § 600.5507. Mtn. Be at 5.' Plaintiff contends that his "inadvertent failure to comply with MCL 600.5507(2) should be excused where he has filed no previous cases[.]" Rsp. at 12.
Plaintiff has been a party to several other cases in this Court characterized as prisoner civil rights cases, induding: (1) 93-CY-74866-ADT (Broder, et al. v. Engler, et al.); (2) 94-CY72611-BAl'-TAC (Broder v. Stegall. et a/.); (3) 94-CY·74787-JAC·PJK (Broder. et al. v. Oklnd enly, et a/.); (4) 99·CV-74902·DPll·SDP (Andrew, e/ ai. v. Martin, et al.); (5) 00·CV-40IS2-
'Defendant relies upon Tomzek v, Department of Corrections, 258 Mich. App. 222, 225; 672 N.W.2d 511, 513 (2003) ("Because plaintiff in this c~se failed to file the required disclosure at the commencement of this appeal and because that failure has now been brought to our attention, the appeal is dismissed pursuant to M.C.L. § 600.5507(3) (b) ."). See also Newell v. Marshall, No. 233742, 2002 WL 31451001, *1 (Mich. App. 2002) ("As an initial matter, we note that dismissal was proper pursuant to M.C.L. § 600.5507 (3) (b); 600.5531 (a). Nonetheless, we will address the merits of plaintiffs' claim of appeal.").
21

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 22 of 25

PVG-VMM (Reilly, et al. v. Gwin, et a/.); (6) OO-CV-72297-GER·P.1K (Roherts, et al. v. Martin,
e/ at.); and (7) 03-CV-70614-JCO-RSW (Broder v. OvertOIl, et atV
Nonetheless, Mich. Camp. Laws § 600.5507 is procedural, rather than substantive, in nature. "When deciding state-created claims based on diversity jurisdiction or supplemental jurisdiction, federal courts must apply statc substantive law and federal procedural law." Blake-McIntosh v. Cadbury Beverages, Inc., No.3 :96-CV-2554 (EBB), 1999 WL 464529, *5 (D.COIlll. 1999) (unpublished) (referencing 28 U.s.c. § 1652; Hanna v. Plummer, 380 U.S. 460,
* 465 (1965)). Therefore, the Court should not apply Mich. Compo Laws 600.5507.
b. The Court should exercise supplemental jurisdiction over plaintifrs state law claims.
Defendant eMS argues that "[t]he Court should decline supplemental jurisdiction over plaintiff's pend[e]nt state law claims pursuant to 28 U.S.c. § 1367(a)[.]"lo Mtn. Br. at 6, 6-8. hl support of this claim, defendant CMS relies upon United Mille Workers ofAmerica v. Gibbs, 383 U.S. 715 (1966), among other cases. Mtn. Br. at 6-8. According to defendant eMS, "the attempt to reconcile these two distinct bodies of law will dominate and prolong pre-trial practice, complicate the jury, and may very likely result in inconsistent verdicts. There may also be posttrial problems with respect to Uudgment] interest ami attomey fees." Mtn. Br. at 8. Defendant

9Plaintiff was also a party in two habeas cases: 95-CV70085-GER-SD2 (Broder V. Stegall) and ~6-CV-74643-BAF-PJK (Broder v. Stegall).

""Section 1367, part of the Judicial Improvements Act of

1990 (Pub.L. 101-650), codifies under the name of 'supplemental

jurisdiction' the case law

'pendent' and 'ancillary'

jurisdiction . . . ". See 28 U.S.C. § 1367, PRACTICE COMMENTARY.

22

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 23 of 25

CMS argucs that "[p]laintitrs slale [law]lort claims, particularly the medical malpractice claim, will substantially expand the scope oflhis case beyond that necessary and relevant to the federal § 1983 claims. Thus, judicial economy, convcnicncc, fairness, and comity weigh heavily against exercising supplemental jurisdiction in this case." Mtn. Br. at 8.
Plaintiff argues thai "[t]he Court should keep Mr. Broder's pendlcint state-law claims[T Rsp. at 12,12-15. He contends that his "state law claims arise (lut ofthe same factual nexus as his federal claims, and his slale law claims do not implicate any of the circumstances for which a federal district court can or should refuse to exercise supplemcntaljurisdiction." Rsp. al 15.
If the Courl agrees with my recommendation that delendant eMS's motion to dismiss should be denied to the extent it seeks dismissal ofplainliffs claims against it that arc supported
by the second grievance, then Ihe Court should exercise supplemental jurisdiction over plaintiff's st;!le law claims pursuant to 28 U.S.c. § 1367. 11 "iftherc is some basis for original jurisdiction, the default assumption is that the cOllii will exercise supplemental jurisdiction over all related

"According to defendant eMS, "[tlhe complaint alleges no

specif

at 1

[d]efendant CMS." Mtn. Br. at

1. Furthermore, defendant CMS maintains that "[g] enerally, the

complaint all

defendant eMS has a duty to implement policies

and procedures to train and supervise staff and to enSure prompt

and ef

treatment

Ii

disease." Mtn. Br.

at 1. This report does not address this argument, because (1) it

is contained within the "Facts" portion of defendant CMS's brief

and (2) defendant CMS's dismissal argument is based upon 42

U.S.C. § 1997e(a). Mtn. Br. at I, 3.

Also, defendant CMS asks the Court to "tax reasonable costs

in favor of [d]efendant [eMS] where permitted by law." Mtn. at

3. The request is premature. Should the Court enter judgment in

favor of defendants, they may present a bill of costs to the

clerk of the Court pursuant to 28 U.S.C. § 1920 and Fed. R. Civ.

P. 54(d) (1). If defendants seek attorney fees pursuant to 42

U.S.C. § 1988, they should low

set

Fed.

R. Civ. P. 54 (d) (2) .

23

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 24 of 25
claims." Campanella v. Commerce Exchange Bank, 137 F.3d 885, 892 (6th Cir. 1998). Although "[t]he district courts may decline to exercise supplemental jurisdicti011 over a claim under subsection (a) if~-
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c), the Court should not decline to exercise supplemental jurisdiction because CMS has failed to make a persuasive argument that any of these four factors are present.
lll. NOTICE TO PARTIES REGARDING OBJECTIONS:
The parties to this action may object to and seck review ofthis Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(J) and E.D. Mich. LR 72.1 (d)(2). Failme to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Am, 474 U.S. 140, 14748 (1985), Howard v. Secretary ofllealth & Human Servs., 932 F.2d 505, 508-09 (6th eir. 1991); United States v. Walters, 638 F.2d 947, 950 (6th eiL 1981). Filing of objections that raise some issues hut fail to raise others with specifkity, will not preserve all the objections a party might have to this Report and Recommendation. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n o/Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursu.ant to B.D. Mich. LR 72.1 (d)(2), a copy of any objections is to be served upon this Magistrate Judge.
24

Case 2:03-cv-75106-GER-PJK Document 21 Filed 08/09/2004 Page 25 of 25 Within ten (10) days of service of any objecting party's timely filcd objections, the
opposing party may file a response, The response shall not he more than five (5) pages in length unless by motion and order such page limit is extended by the Court, The response shall address specifically, and in the same order raised, each issue contained within the objections,
PAULJ, KOMIVES UNITED STATRS MAGISTRATE runGE
25

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION ____________________________________

STEVEN BRODER, vs.

Plaintiff,

File No. 03-CV-75106

CORRECTIONAL MEDICAL SERVICES, INC., et al.,

Hon. Gerald E. Rosen U.S. Mag. Judge Paul J. Komives

Defendants. ______________________________________________________________________________

MICHIGAN CLINICAL LAW PROGRAM By: Paul D. Reingold (P-27594) Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319
Kevin Thom (P-36178) Assistant Attorney General Attorney for Defendants Caruso, Pramstaller, and Epp Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P-37603) Brian J. Richtarcik (P-49390) Attorneys for Defendants Hutchinson and Mathai 40950 North Woodward Ave., Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326

______________________________________________________________________________

PLAINTIFF’S BRIEF IN RESPONSE TO
MDOC DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Table of Contents Statement of Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii The Legal Standard and Controlling Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Proceedings to Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. THE EIGHTH AMENDMENT CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. The Operative Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Applying Eighth Amendment Law to the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . 18 C. The Hadix Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 II. THE EXHAUSTION ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 A. The 2004 Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 B. The “Policy and Practice” Grievance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 C. The Woodford Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 D. Naming the Defendant and Complete Exhaustion . . . . . . . . . . . . . . . . . . . . . . . 336 III. THE ELEVENTH AMENDMENT AND QUALIFIED IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . 38 A. The Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 B. Qualified Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Proof of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Index of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –
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Statement of Issues Presented 1. Did the Michigan Department of Corrections’ policies and procedures, as conceived, implemented, approved, and/or tolerated by its chief medical officer and its regional health care administrator, violate Mr. Broder’s Eighth Amendment rights, and were those policies and procedures a proximate cause of the delay in diagnosis and treatment of Mr. Broder’s throat cancer?
The plaintiff says yes. 2. Are there genuine issues of material fact, and could a reasonable jury find in the plaintiff’s favor, as to question #1?
The plaintiff says yes. 3. Is the plaintiff entitled to damages and injunctive relief on his claims, despite the defenses of administrative exhaustion, the Eleventh Amendment, and qualified immunity?
The plaintiff says yes.
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The Legal Standard and Controlling Authority To prevail on his Eighth Amendment claim, the plaintiff must show that the defendants were deliberately indifferent to his serous medical needs. See Estelle v. Gamble, 501 U.S. 294 (1991); City of Canton v. Harris, 489 U.S. 378, 392 (1989). In this context, deliberate indifference can be shown by proof that policy makers were aware that inmates faced a substantial risk of serious harm and disregarded the risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1994). To be granted summary judgment, the defendants must show that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004).
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TABLE OF AUTHORITIES Cases Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 19 Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Brock v. Wright, 315 F.3d 158 (2nd Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Brownell v. Krom, 446 F.3d 305 (2nd Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Burke v. North Dakota Dept. of Corrections, 294 F.3d 1043 (8th Cir. 2002) . . . . . . . . . . . . . . . 21 Carter v. City of Detroit, 408 F.3d 305 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii City of Canton v. Harris, 489 U.S. 378 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Estelle v. Gamble, 501 U.S. 294 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Farmer v. Brennan, 511 U.S. 825 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, 24 Horton v. Potter, 369 F.3d 906 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Irving v. Kelly, E.D. Mich. No. 03-CV-75106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Jones v. Bock, 135 Fed. Appx. 837 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Jones v. Steward, 457 F. Supp. 2d 1131 (D. Nev. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35 Kikumura v. Osagie, 461 F.3d 1269 (10th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Miller v. King, 384 F.3d 1248, vacated on other grounds, 449 F.3d 1149 (11th Cir. 2006) . . . . 20 Richardson v. Goord, 347 F.3d 431 (2nd Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Smith v. Brenoettsy, 158 F.3d 908 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002) . . . . . . . . 19 Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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Valdez v. Crosby, 450 F.3d 1231 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Woodford v. Ngo, 548 U.S. ___, 126 S.Ct. 2378 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-35 Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Williams v. Overton, 136 Fed. Appx. 859 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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Proceedings to Date The plaintiff filed this action under 42 U.S.C. § 1983 on December 24, 2003. As to the senior Michigan Department of Corrections (MDOC) officials who are bringing this motion, Mr. Broder alleged that their medical policies and procedures violated his Eighth Amendment rights by causing the late diagnosis and treatment of his throat cancer. Mr. Broder filed an amended complaint (unchanged as to the MDOC defendants) on December 8, 2004, and the defendants answered. After some service delays, and motions by other parties, discovery ensued. Following discovery, in September 2006, the parties stipulated to the dismissal of one of the MDOC defendants (warden Henry Grayson). With discovery concluded, the MDOC defendants moved for and got an extension of time to file their summary judgment motion, from November 30 to December 15, 2006. They filed their motion on December 19, 2006. Mr. Broder now files this timely response.
Statement of Facts The relevant facts are set forth in detail in paragraphs 4-65 of the plaintiff’s experts’ reports, attached as Exhibits A and B to the plaintiff’s earlier response brief.1 Because the core issue on summary judgment is whether or not the facts – taken in the light most favorable to the plaintiff – are sufficient for a reasonable jury to find in Mr. Broder’s favor on his Eighth Amendment claim, instead of duplicating the facts here, the plaintiff will incorporate them into his argument, as he did in response to the CMS defendants’ motion. See Argument, Part I, below.
1 Rather than create an additional set of exhibit books for this motion, the plaintiff will use and rely upon the exhibits he filed in support of his brief opposing the CMS defendants’ motion for summary judgment. To the extent that additional exhibits are necessary, he will attach them to this brief (using exhibit numbers instead of letters). To distinguish the three defendants bringing this motion from the CMS defendants who filed earlier, Mr. Broder will refer to these defendants as the MDOC defendants.
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ARGUMENT Introduction As the Court knows, this case involves the late diagnosis and treatment of throat cancer by Mr. Broder’s primary care physician (PCP) and the prison medical system. Dr. Bency Mathai admits that as of 8/20/01 she suspected that Mr. Broder had cancer. Although his cancer would have been detectable and could have been confirmed by tests at that time, she failed to get a confirmed diagnosis of throat cancer until five months later, and failed to start any treatment until almost eight months later. As a result, Mr. Broder spent months of constant pain and anxiety, had to undergo more invasive treatment, and suffered permanent harm as a result of the more invasive treatment. He also has a much lower chance for survival if his cancer recurs. For purposes of the MDOC defendants’ motion, Mr. Broder alleges that the failure of care was not only the fault of the PCP who failed to coordinate and to monitor his care, but also the fault of the MDOC /CMS health care system, which he maintains all but guaranteed the late diagnosis and treatment. Mr. Broder says that Dr. George Pramstaller, the MDOC’s chief medical officer, and Jan Epp, its regional health care administrator, were responsible for the systemic failure of care that proximately caused the delay in the diagnosis and treatment of his cancer.2 These defendants had little direct contact with Mr. Broder (although there is evidence that both were aware of his case). But the primary claim is that they were ultimately responsible for the provision of health care services for Michigan prisoners at the Parnall Correctional Facility. At all relevant times they were responsible for the medical policies and procedures governing Mr. Broder’s care.
2 The defendants are correct that the current MDOC director, Patricia Caruso, cannot be individually liable for the medical policies and procedures that pre-dated her directorship. Accordingly, only the claim for injunctive relief is appropriate as to her. For purposes of injunctive relief (to prevent a recurrence of a failure of specialty/urgent care), defendants Caruso and Pramstaller remain as appropriate defendants, while defendant Epp – who has retired – can only be sued for her past acts or omissions.
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These defendants need not have intended to harm Mr. Broder to be held liable under the

Eighth Amendment. Nor does Mr. Broder make a respondeat superior claim as to them. His

claim is that the policies and procedures they conceived, implemented, approved, or tolerated

were a proximate cause of his late diagnosis and treatment. The delays caused extra and unne-

cessary pain and suffering, plus permanent harm as a result of the more invasive treatment that

became necessary because of the delays.

The defendants’ motion should be granted only if there are no genuine issues of material

fact, taking all the evidence in the light most favorable to the plaintiff. Because there are a host

of factual questions, and because a reasonable jury could find in Mr. Broder’s favor on his Eighth

Amendment claim, the MDOC defendants’ motion for summary judgment should be denied.

I.

THE EIGHTH AMENDMENT CLAIM

A. The Operative Facts3

In 2001-02, to see medical staff, prisoners had to fill out a form (a medical “kite”) or ask

cellblock staff to contact health services on their behalf. Exh. O, at 42; Exh. G, at 23-27, 52, 59.

So-called “mid-levels” – nurses, nurse practitioners, and physicians’ assistants – then reviewed

the kites and provided much of the care. Exh. H, at 13; Exh. I, at 19. At the Parnall Correctional

Facility, there was just one primary care physician for c. 1,200 inmates. Exh. H, at 15; Exh. I, at

11. During 2001-02, Dr. Pramstaller was the MDOC’s chief medical officer and Ms. Epp was

the regional health care administrator responsible for medical care at Parnall. Exh. F, at 8-9, and

Exh. 1.

3 Although Part I of this brief contains many of the same facts and arguments as the plaintiff’s brief in response to the CMS defendants’ motion for summary judgment, it has been re-written to respond to the arguments raised by the MDOC defendants. As to both sets of defendants, the evidence supports Mr. Broder’s contention that his Eighth Amendment rights were violated. He re-describes the operative facts in detail (though with a different focus) to make that point as strongly as possible.
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Mr. Broder recalls first describing his symptoms to medical staff in April of 2001. Exh. G, at 50, 98, 106, 110. The earliest record in his medical chart of a sore throat is 5/4/01. Exh. C, at 19. Mr. Broder’s sore throat did not go away. Although he was given an appointment to return to the clinic in a month, the return visit was cancelled, and he did not see his doctor again for 2½ months. Exh. G, at 102; Exh. C, Chart, at 19.
In the meantime, on 7/11/01, at his annual health care screening, he again presented with throat-related problems – ongoing sinus issues and a cough lasting more than three weeks. Exh. C, at 18. He was also worried about the fact that he was losing weight, which is reflected in the annual screening sheet. Exh. C, at 18; Exh. D, at 3. He was not referred to a physician. He continued to try (without success) to schedule a physician visit by filing kites, but the visits either were not scheduled or were cancelled. Exh. G, at 101-02; Exh. E, Letter of 8/18/01; Exh. C, at 17 (visit 8/3/01 cancelled).
On 8/18/01 he wrote a letter to health services. He described his ongoing problems as: “(1) sinus drainage and sore throat, and (2) the drastic loss of weight. The sinus problem started in about March and has not gotten any better. In fact, now it is becoming hard to swallow.” Exh. E, Letter 8/18/01. He finally saw Dr. Mathai (for the first time since 5/4/01) on 8/20/01. A reasonable jury could find that Mr. Broder’s inability to get a physician visit from early May until late August 2001 – despite having persistent sinus/throat issues and significant weight loss, and despite his ongoing efforts to do so – was due to the policies and procedures that governed when and how a prisoner could access a doctor, and/or to the fact that only one doctor was available to serve c. 1,200 prisoners.
Dr Mathai claims that she suspected Mr. Broder might have cancer on 8/20/01. Exh. H, at 48-49. She says that she was concerned about his weight loss and that she wanted to rule out
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prostate problems, colon or lung cancer. Id. She therefore did a prostate exam and ordered a chest x-ray. Id., Exh. C, at 17.
She did not, however, enter her suspicions into the file. Exh. C, at 17. Moreover, she did not fill out a chest x-ray form, or if she filled out a form, she did not ensure that the test occurred. She admitted that in 2001 the only system for ensuring that such a test had occurred was to check at the next scheduled visit. Exh. H at 81, 86. CMS’s Michigan director, Dr. Craig Hutchinson, concurred that the “next-visit” protocol was the accepted method or “tickler system” by which prison medical staff kept tabs on their patients’ medical needs. Exh. I, at 48-49.
Dr. Mathai did not schedule the next visit for 60 days. Exh. C, at 17. Thus, if the lung cancer screen (the chest x-ray) were not performed for any reason, she would not catch the failure, and could not begin the process of getting that test re-scheduled – or other tests initiated – for at least 60 days. Exh. H, at 81; Exh. J, at 9; Exh. O, at 41. And if someone else happened to be on duty at that return visit, by looking at the file, the substituting doctor would not be able to discern that Dr. Mathai had done the prostate exam or had ordered the chest x-ray to screen for cancer, because there was no such chart entry. Exh. C, at 17.
As noted in response to the CMS defendants’ motion, a reasonable jury could find either (1) that Dr. Mathai did not suspect cancer on 8/20/01 and lied in her deposition to cover up her mistake – when in fact she only did a routine prostate exam and only ordered the chest x-ray because of Mr. Broder’s high WBC count, or (2) that if Dr. Mathai suspected cancer, her failure to chart her suspicions, to procure the chest x-ray, to discover that the chest x-ray was never performed, and to have a process in place to catch such a mistake if it occurred, amount to deliberate indifference under the Eighth Amendment. A reasonable jury could also find that the MDOC’s failure (1) to require that a prison doctor chart her suspicions of cancer, (2) to have an effective
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tickler system in place, (3) to catch that a lab test was wanted but never procured, and (4) to retest or to initiate new tests for cancer sooner than 60 days later at the earliest, also amount to deliberate indifference to the serious medical needs of a cancer patient.
Dr. Mathai also had reason from the medical file to be concerned about the weight loss. Mr. Broder’s weight at his annual health screening on 7/11/01 was 156. At that time he told the nurse that he had been on the (lower calorie or less appetizing) kosher diet line, but that he had gone back to the regular diet line and had put on 8 pounds in two weeks. Exh. C, at 18. He was thus off the kosher diet and back on the regular diet by no later than 6/28/01. When he saw Dr. Mathai on 8/20/01, he had been off the problematic diet for almost eight weeks. Nevertheless, his weight had dropped six more pounds, to 150. Exh. C, at 17. Accordingly:
Q. If [Mr. Broder] complained of continued weight loss as of the end of August, we could not attribute it to the kosher diet line, based on what’s in the chart?
A. I would agree. Exh. O, Defense Expert Norman, at 30-31; Exh. M, at 102 (weight loss remained “unexplained” based on the medical record). Dr. Mathai never observed (or never charted) that Mr. Broder was still losing weight despite having been back on the regular diet for nearly two months. Exh. C.
A reasonable jury could find that the failure to have a system in place to record critical information in the file – or to make sure that its significance was apparent – amounts to deliberate indifference. A reasonable jury could also find that having one physician for 1,200 patients made every patient interaction cursory, and led to the failure to locate, or to apprehend the significance of, the weight-loss information that was already in the file.
The plaintiff’s experts say that by 8/20/01 Dr. Mathai had ample information in the file (and from the patient) to suspect throat cancer (in addition to prostate/colon or lung cancer) and to test for it. Exh. M, at 39-40; Exhs. 1 & 2, ¶¶ 61-70. She claims that she was unaware at that
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point that he was having difficulty swallowing, a key indicator of throat cancer. Exh. H, at 68;
Exh. C, at 17. The evidence, however, shows that Mr. Broder had described in detail his sore
throat since the spring, his weight loss, his increasing pain, and his difficulty in swallowing, in
his letter dated 8/18/01. Exh. E. A reasonable jury could find that a patient who took the time to
write down his symptoms two days before a visit to his PCP would describe those symptoms to
her – as he says he did, see Exh. G, at 100, 110-11 – despite the incomplete entry in the medical record. 4
More importantly, on 8/31/01 – 11 days after his visit with Dr. Mathai – Mr. Broder sent
a follow-up kite to health services. In it he said, “An existing problem with throat pain remains.
... This problem has existed since approximately March. ... Since this time it has become difficult
and painful to swallow.” Exh. E, 8/31/01 Kite. We know that the kite was received and logged
in by health services. Id. The defendant’s expert on prison medical care testified that when the
information in the kite is important to a diagnosis, it must be added to the patient’s medical record. Exh. 0, at 44-45. It was not. Exh. C.5 In fact, none of the contents of any of Mr. Broder’s
written complaints – his letter of 8/18/01, or his grievance of 8/31/01, or his kite of 8/31/01 –
ever made it in to his medical file. If his doctor did not know that he was having difficulty
swalowing, it was not for Mr. Broder’s lack of trying to tell her. Id. A reasonable jury could find
4 The CMS defendants’ counsel made this point at Mr. Broder’s deposition – that having written down his symptoms on a certain day, it would only be logical that he would report those same symptoms to his PCP at his next visit. Exh. G, at 111-12. 5 On 8/31/01, Mr. Broder also prepared a formal grievance describing the same symptoms. He wrote, “This throat problem should have been corrected by this time and I should not have been subjected to intolerable pain, especially when weight loss and [a] high-blood pressure problem has also arisen during the same time frame.” Mr. Broder believes that he filed the grievance, though it was never answered – not an uncommon occurrence. Exh. G, at 74-77. Also, in a grievance he filed on 11/3/01, he noted that an earlier grievance “was either misplaced or lost, as I have not received any receipt or response.” Exh. E, 11/3/01 Grievance.
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that the failure to have a system in place to get critical diagnostic information from the patient to his doctor (or in to his medical file) amounts to deliberate indifference to his medical needs.
Furthermore, in late August and early September 2001, Mr. Broder came in to the clinic almost daily for a series of blood-pressure checks. For those visits the nursing notes show steady complaints and/or assessments of ongoing throat problems. Exh. C, at 15-16.
Accordingly, based on what Mr. Broder says he told his doctor, and based on the letter he wrote on 8/18/01, the kite he submitted on 8/31/01, the grievance of 8/31/01 (see n. 5), and the follow-up clinic visits, a reasonable jury could find that Dr. Mathai had all the information she needed to make a differential diagnosis of throat cancer and to screen for it. Yet she failed to include throat cancer as a differential diagnosis; she failed to get the chest x-ray to screen for lung cancer; and she failed to chart her suspicions of cancer at all. Even after Mr. Broder’s kite of 8/31/01and his unabated throat problems in early September, Dr. Mathai still did not screen for throat cancer. Exh. C. Reviewing his chart on 9/11/01, she failed to note that his chest x-ray had never been scheduled or performed, and she ordered no other tests to rule out cancer. Nor did she take further steps to monitor his weight. Id. A reasonable jury could find that the lack of any system to bring an accurate description of his symptoms to his doctor’s attention, combined with the lack of a working tickler system and the lack of staff, were a proximate cause of the late diagnosis of his cancer, and amount to deliberate indifference to his serious medical needs.
On 9/23/01, Mr. Broder wrote directly to Dr. Pramstaller, the chief medical officer for the MDOC. Mr. Broder said,
In approximately March of this year, during a scheduled visit at health care I had appraised [sic] the doctor of sinus problems and a problem with a sore throat. The sinus problem was corrected, however, the throat pain and soreness has increased. In July during my annual health screening, once again, health care was appraised [sic] of the difficulty in swallowing and the drastic loss of weight. Blood tests were taken, along
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with bi-weekly blood pressure checks. The throat pain remains, as does the difficulty swallowing. Letter 9/23/01, Exh. E. This information, too, never made it into Mr. Broder’s file. Exh. C.6 On 10/12/01, Dr. Audberto Antonini, a visiting physician, filled in for Dr. Mathai, who was on vacation. Dr. Antonini noted Mr. Broder’s “weight loss of 20 pounds [and] progressive dysphagia since April, sore throat and hoarseness, ... and general malaise.” Dr. Antonini immediately suspected stomach or throat cancer. Exh. C, at 13-14. He filled out referral forms to get approval for specialty care to rule out throat or stomach cancer. He marked the forms as “urgent” and he faxed them to CMS for approval the same day. Exh. D, at 10-11. He also requested another blood panel “in 2 weeks” as well as diagnostic tests, including a barium swallow and a chest x-ray. Exh. D, Physician’s Orders, at 9 & 10. Dr. Antonini said that when he wrote “urgent” on the referral forms on 10/12/01 he “was expecting all this to happen within a month, everything.” That is, Dr. Antonini expected to get an answer – a yes or no on the cancer diagnosis – within 30 days. Antonini Dep., Exh. J at 21. A reasonably jury could find that the system’s inability to get a confirmed diagnosis from midOctober 2001 until mid-January 2002 – despite the requesting doctor’s opinion that a diagnosis
6 After learning that there was evidence tying Dr. Pramstaller directly to Mr. Broder, the defense tried to cast doubt on the authenticity of the letter and the response. See MDOC Defendants’ Brief, at 6, n. 10. As to Dr. Pramstaller’s liability based on his responsibility for the MDOC/CMS policies and procedures, his personal knowledge of Mr. Broder’s case is irrelevant. See Part I(B), below. As to his liability based on such personal knowledge, the MDOC defendants simply raise a new fact question: a reasonable jury could conclude that the letter was sent and answered exactly as Mr. Broder described. Exh. G, at 38-41; Exh. E, Letter & Response. Moreover, if the letter was sent and received, what this means is that even when the MDOC’s chief medical officer made personal inquiries to the providers at the facility, there still was no system in place to make sure that Mr. Broder’s cancer was diagnosed and treated within the requirements of the Eighth Amendment – which only strengthens his policy-and-practice claim.
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should be completed within 30 days – is deliberate indifference under the Eighth Amendment.7 The duty to follow-up with Mr. Broder’s care reverted to Dr. Mathai. Exh. J, at 7-10, 12.
It was she who had to make sure that the “urgent” consults and diagnostic tests were timely completed. See Defense Counsel’s Questions, Exh. G, at 93-94; see also Antonini Dep., Exh. J, at 32-35. On 11/1/01, Dr. Mathai reviewed Mr. Broder’s chart. All that she wrote was that he was “currently being evaluated for weight loss.” Exh. C, at 12. From this entry, it appears that she was yet unaware that Dr. Antonini had suspected throat or stomach cancer on 10/12/01 and had made urgent referrals for both.8 A reasonable jury could find that as of 11/1/01, Dr. Mathai did not know that Mr. Broder was being evaluated for cancer, because she only looked at the chart in a cursory way. A reasonable jury could find that a doctor who knew that her patient had been urgently referred to specialists for testing for throat or stomach cancer would not refer to the problem as “currently being evaluated for weight loss” and would not list her sole follow-up task as repeating the routine lab work for the (unrelated) elevated white blood count. Exh. C, at 12. A reasonable jury could also find that the policies and procedures in place to inform a vacationing doctor of the urgent needs of her patients upon her return, so that timely follow-up would occur, were essentially non-existent in the fall of 2001 at Parnall.
There is no indication in the medical chart that Dr. Mathai took any concrete steps to speed the processing of the urgent ENT/GI specialty care visits or the diagnostic tests that had
7 As to the diagnostic tests, one of them – the barium swallow – was scheduled for 10/19/01, but was postponed to 10/31/01. It was not performed on that date because of equipment failures or supply shortages at the facility. Exh. E, Grievance 11/3/01. 8 Dr. Antonini’s chart entry of 10/12/01 highlighted “weight loss” on the first page, which appeared to end at the bottom of the page. To see his differential diagnosis of throat or stomach cancer, a reviewing physician would have to flip back two pages, or would have to look beyond the chart to the physician’s orders and the referral and testing forms. Exh. C, at 13-14.
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been ordered by Dr. Antonini almost three weeks before, even though the referral form indicates that as of 11/1/01 CMS had not yet approved the ENT referral. Exh. D, at 14. She again missed the fact that the chest x-ray she had ordered six weeks earlier had not yet been scheduled, let alone performed. Exh. C, at 12. A reasonable jury could conclude that these were in part systemic failures, tied to the lack of functioning tickler system or insufficient staffing levels.
On 11/3/01 Mr. Broder filed another grievance because neither the ENT/GI visits nor the tests had taken place. He wrote, “I have lost an additional 10 pounds (approximate) and have continual excruciating pain.” Exh. E, Grievance. The information in his 11/3/01 grievance was not entered into his medical file; he also noted that his earlier grievance (probably the one dated 8/31/01) and his letter to Dr. Pramstaller (of 9/23/01) still had not been answered. Id. Ms. Epp was the MDOC official who responded to the grievance at the Step II level.
On 11/13/06, Mr. Broder finally saw an ENT, who found lesions on both vocal cords. Exh. D, at 15. The ENT filled out a form for biopsy surgery at Foote Hospital to be done “within 2-3 weeks.” Exh. D, at 16. On 11/16/01, Dr. Mathai reviewed lab results but she took no steps to ensure that the biopsy surgery was in fact scheduled within the 2-3 weeks, as ordered by the ENT. Exh. D, at 17; Exh. C, at 10-11.
To the contrary, although Dr. Mathai signed the ENT’s request for biopsy on 11/14/01 (the day after he wrote it), and she approved his dictation on 11/20/01, Exh. D, at 15, she did not fax the form to CMS for approval until 11/26/01 – two weeks in to the 2-3 week period for the biopsy to be performed. Exh. D., at 16. In her 11/26 and 11/28/01 chart notes, she wrote only that Mr. Broder was “being evaluated for GI cancer” and that he will be undergoing an EGD. At this point, it was two weeks beyond the 30 days by which Dr. Antonini had expected test results (in the form of a confirmed diagnosis). She noted only that the ENT requests were “pending,”
11

and set Mr. Broder’s next appointment for 30 days out. Exh. C, at 9. A reasonable jury could find that these processes – pursuant to which the forms went unfaxed for two weeks and the PCP did nothing to speed the scheduling of the urgent appointments and permitted their further delay – amount to deliberate indifference and were a proximate cause of the harm Mr. Broder suffered.9
Three days later, on 11/29/01, Dr. Mathai filled out an “Offsite Specialty 30 Day FollowUp Form” for the diagnostic tests that had not yet taken place. She checked the box on the form that said it would be appropriate to await completion of the offsite procedures. Exh. D, at 21. By not scheduling an interim visit, she guaranteed that no one would look at the patient’s file again for another 30 days. Mathai Dep., Exh. H at 81, 86; Norman Dep., Exh. O at 41. Dr. Mathai testified that Mr. Broder needed to be seen within 2-3 weeks of 11/13/01 and that she would not have filled out the form if she had known that the throat biopsy surgery was not going to be scheduled until “way out in January.” Mathai Dep., Exh. H, at 90.
CMS did not approve the biopsy until 12/5/01 – beyond the 2-3 week deadline for test results – and did not schedule the surgery until 1/11/02. Exh D, at 22. A reasonable jury could conclude that a scheduling mechanism that allows a test to be scheduled almost six weeks beyond the deadline set by the ordering physician evidences a systemic failure that amounts to deliberate indifference to serious medical needs. Here, because Dr. Mathai had already filled out the 30-day extension form, and because she had not scheduled an interim follow-up visit to get the case back on her docket, she could not and did not know of the delay. Indeed, she did not see Mr. Broder again until 1/2/02. From 10/12/01 to 1/11/02, there is nothing in the medical record
9 The defense theory to date has been that Dr. Mathai did nothing wrong and at all times was simply following the policies, procedures, and protocols in place. Accordingly, if a jury were to find that the delays amounted to a violation of Mr. Broder’s Eighth Amendment rights, and if the same jury were to credit the defense account that the PCP was not at fault, then the jury could find the systemic failures to be a (or the) proximate cause of the harm he suffered.
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to indicate that Dr. Mathai ever did anything with CMS or with the specialists to speed up the appointments or to get timely test results. Exh. C. A reasonable jury could conclude that the delay from 11/13/01 to 1/11/02 was caused by a systemic breakdown – or worse, that it was the natural and predictable result of the MDOC health care policies and practices in place at Parnall Correctional Facility in 2001-02.
On 12/6/01, Dr. Pramstaller answered Mr. Broder’s letter of 9/23/01, about the delays in his diagnosis and treatment. Dr. Pramstaller wrote, “Further diagnostic studies have been considered and staff have taken appropriate steps in that regard…. [Health staff] are following your case closely.” Exh. E, Letter 12/6/01. Dr. Pramstaller said that if he had known that tests to rule out cancer should have been completed weeks before his reply, he would have written a different letter. Exh. F, at 73. If the chief medical officer – in apparent response to a specific request on his part – cannot get an accurate picture of a patient’s progress, then a reasonable jury could conclude that the system fell below the constitutional floor, in violation of the Eighth Amendment.
Dr. Mathai did not examine Mr. Broder in December and there are no notes in the chart showing she checked on the outstanding tests. Exh. C, at 9. On 12/12/01, a nurse interviewed Mr. Broder in answer to his 11/3/01 grievance. He told the nurse that his cancer tests had not yet been done (even though Dr. Antonini had wanted diagnostic results by 11/13/01 and even though the ENT had wanted the biopsy results by 12/4/05). Exh. E, 11/3/01 Grievance Response. Still nothing happened. Dr. Mathai did not see Mr. Broder again until 1/2/02, when she approved yet another 30-day delay form (Exh. D, 30-Day Form, at 24), despite noting that the EGD test still had not been scheduled. Exh. C, at 9. The throat biopsy surgery was then scheduled for 1/11/02.
To sum up, Dr. Mathai missed the differential diagnosis of throat cancer in August, causing a seven-week delay before Dr. Antonini saw Mr. Broder in October. Dr. Antonini ordered
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the appropriate referrals and diagnostic tests on an urgent basis; he expected a confirmed diagnosis within 30 days – by 11/12/01. Despite the urgent requests, Dr. Mathai took no steps to speed the process, or to monitor it, and a reasonable jury could find that she was unaware for a time that Dr. Antonini had even ordered the tests. Exh. C. Next, when the ENT ordered a biopsy within 2-3 weeks (that is, by 12/3/01 at the outside), Dr. Mathai did not even fax the forms to CMS for two weeks, and then she signed a 30-day form that – combined with her failure to schedule a follow-up patient visit – guaranteed that the case would not come back to her attention until early January 2002. A reasonable jury could find that the policies and procedures in place at the time – for staffing, for access to medical care, for information entry, for monitoring of urgent medical needs, for the procurement of specialty care services – were cumulatively if not individually dysfunctional, and were a proximate cause of the delay in Mr. Broder’s diagnosis and treatment.
On 1/11/02, Mr. Broder finally had the throat cancer biopsy surgery. Exh. D, at 25, 28-29 (pathology report), & 46 (post-dated operative report). On 1/22/02, the ENT reviewed the results with Mr. Broder and told him that he had cancer. Exh. D, at 30. Thus, although Dr. Mathai had enough information on 8/20/01 to test for throat cancer, it took 22 weeks to get a confirmed diagnosis. On 1/22/02, the ENT submitted an “urgent” referral stating, “Needs ASAP referral to radiation oncology at Foote [Hospital in Jackson] for [cancer of the larynx.]” Exh. D, at 31. The paperwork shows that the ENT did not expect to have any further contact with Mr. Broder until his treatment was concluded; the ENT asked that Mr. Broder return for a follow-up visit after completion of his radiation treatment. Id. As Mr. Broder put it, “He told me ... he’d see me in seven weeks when the ... radiation was done.” Exh. G, at 122.
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Despite a barrage of kites, Exh. E, Kites of 1/2801, 2/4/01, 2/25/01,10 & 3/26/02, Mr. Broder’s treatment did not begin for almost 2½ more months. Not until 1/30/01 – eight days after the ENT had requested the “urgent/ ASAP” radiation treatment – did Dr. Mathai review and sign the ENT’s request form.11 Exh. D, at 34. Dr. Mathai scheduled Mr. Broder for a follow-up appointment with her in three weeks. Exh. C, at 7.
Pursuant to the request, a radiation/oncology consultation was scheduled at Foote Hospital for 2/5/02. On 2/5/02, Mr. Broder saw a radiation oncologist (Dr. Hayman) at Foote who filled out a form for radiation therapy, and who requested a follow-up appointment in 1-2 weeks. Exh. D, at 42-44; Form 409, at 45. The doctor’s expectation was that treatment would begin within the 1-2 weeks. Hayman Dep., Exh. K, at 15-16, 30.
From this point, Mr. Broder became “lost to follow-up.” Exh. D, Patient History, at 86. On 2/8/02, Dr. Mathai reviewed the form request for radiation. Exh. D, at 45. CMS approved the form on 2/12/02. Exh. D, at 48. For unexplained reasons, no date was initially set for the radiation oncology appointment. Dr. Mathai did not follow up to make sure that the form was timely sent, or that it was timely processed, or that the treatment started within the deadline set by the radiation oncologist. No system was in place to ensure that the appointment occurred. (CMS/patient services later scheduled the radiation targeting for 3/12/02, and the start of radiation for 3/19/02 – way beyond the 1-2 week time-frame of the requesting doctor.) Exh. D, at 48. Dr. Mathai did not sign off on Dr. Hayman’s dictation from 2/5/05 until 2/28/05 – long after the
10 In preparing the Appendix, the kite dated 2/25/01 was inadvertently placed in the medical records, see Exh. D, at 51, rather than in Exh. E with the other grievances. 11 The record reflects that Dr. Mathai called patient services to ask them to schedule the radiation planning appointment for “this week.” The phone call is the only time Mr. Broder’s medical file reflects Dr. Mathai taking any direct action to expedite his treatment. Exh. C, at 7. It also shows that when a PCP took direct action, a PCP could get results: the appointment was scheduled that week.
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1-2-week start-time for the radiation simulation appointment had passed. On 2/13/06, the Foote Hospital oncologists submitted a form for a CT scan, to stage the
cancer and to do the radiation targeting. Exh. D, at 49. The scan was apparently never approved by CMS. On 2/22/02, Dr. Mathai saw Mr. Broder. She noted in the progress notes that she did not have his chart. Exh. C, at 6.12 At that point she took no action to confirm that Mr. Broder’s targeting or treatment appointments had been scheduled or that the necessary forms had been approved. Dr. Mathai told Mr. Broder to return in three weeks and instructed him to file a kite if his treatment did not begin on 2/25/02. On 2/25 he submitted a kite. The nurse who reviewed the kite replied, “Radiation to start next week.” Exh. D, Kite 2/25/01, at 51. The radiation was not scheduled to start the next week; it did not start for more than a month. As one doctor put it, “He became rather lost to follow-up after 2/5/02 when he was seen in Radiation Therapy and it was recommended that he start treatment.” Exh. D, at 86. Another wrote, “Transportation difficulties caused him to miss his radiation follow-up, ENT follow-up, and his scheduled CAT scan.” Exh. D, at 90.
Dr. Mathai went on maternity leave on 3/8/02. There is no indication that she took any steps to make sure that Mr. Broder’s “urgent” treatment either had begun or was about to begin before she left. To that point, by her own admission, she had suspected that he had cancer for nearly seven months. It had taken five months to get a diagnosis, and in the 6½ weeks since Mr. Broder still had not completed the pre-treatment protocols. Exh. D, at 55.
On 3/8/02, a Foote radiation oncologist again requested a CT scan, marked “Urgent.”
12 The defendants imply that it was Mr. Broder’s fault that his chart was “out for FOIA” copying in February 2002. Defendants’ Brief, at 8. By that date prisoners were barred from using the state Freedom of Information Act, but a request had been made on his behalf. What is apparent is that there was no policy in place to make sure either: (1) that a medical file was not sent out at a critical time in the management of a patient’s care; or (2) that a second copy of the essential information was available for emergencies.
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Exh. D, Form 407 (Clark), at 55. This was the same test that Dr. Tsien had requested on 2/13, marked “ASAP” on the form, yet it had never been authorized. On 3/12/02, Mr. Broder went to Foote for his radiation simulation/treatment planning. At that point, it appears that CMS still had not approved the requests for a CT scan, but the Foote doctors simply ignored the lack of authorization and performed the scan anyway. (The CT scan request was approved retroactively by CMS the next day. Exh. D, Form 409, at 64; Exh. D, Simulation Notes, at 55.) The CT scan showed that Mr. Broder’s cancer had spread to the epiglottis and was probably now Stage III. Exh. D, Scan Results, at 61-62. On 3/18/02, the Foote doctors requested an MRI – marked “URGENT-ASAP Please” and “STAT” – to determine more precisely the extent of the cancer and to get better pictures for the radiation targeting. Exh. D, Form 409, at 67-68. On 3/21/02, Mr. Broder’s new primary care physician signed off the urgent MRI request, filled out the corresponding Form 407, and faxed them to CMS. Exh. D, Form 407, at 69. CMS approved it and the appointment was set for 3/27/02. Exh. D, at 71.
From 3/25/02 to 4/1/02, the Foote doctors requested several more authorizations for service. Exh. D, at 74-76, 79-80. The chemotherapist was concerned that Mr. Broder’s throat was closing to the point where he could not breathe. Exh. D, at 77.13 The MRI, done on 3/27/02, confirmed Stage III cancer. Exh. D, MRI Results, at 81-82. Stage III cancer requires chemotherapy as well as radiation. One oncologist wrote, “I am somewhat concerned about ... the duration of this work-up in view of the natural history of the disease….” Exh. D, at 83. Dr. Tsien noted that “numerous attempts were made to expedite his CT treatment planning scan.” Exh. D, Inter-
13 The transcript reads, “I am not concerned about his airway,” but the chemotherapist testified: “I think that’s a typographical error. I was – it should be, I am now concerned about his airway. I did take steps to contact the ear, nose and throat surgeon to ... verify that the airway was intact.” Axelson Deposition, at 16 (not attached as an exhibit).
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val Note, at 84. To sum up, even when all the players were aware that Mr. Broder had fallen through the cracks and his treatment had been inexplicably delayed, and even with Dr. Mathai out of the picture, it still took from 3/8/02 to 4/2/02 for his treatment to actually begin. A reasonable jury could find that the system of filling out forms for specialty care, and then getting them approved, and then having a scheduling unit arrange for tests and appointments, was so fraught with delays and failures, and was so consistently late at every stage, that the system itself was a proximate cause of the failure of medical care in this case. Only by blind luck did Mr. Broder’s cancer not progress to the point where it cost him his larynx (or his life).
On April 2, 2002, Mr. Broder was admitted to Foote Hospital for chemotherapy and radiation treatment. Due to the need for chemotherapy, Mr. Broder was surgically fitted with a PEG tube to his stomach, to allow direct nutrition while bypassing the throat. Exh. D, at 85. The PEG tube site later became infected. Exh. D, at 88. Beginning April 2-3, 2002, Mr. Broder received seven weeks of radiation, and three rounds of chemotherapy in April, May, and June 2002.
Because of the delays, Mr. Broder suffered months of unnecessary pain and anxiety. His experts say his cancer went from Stage I to Stage III, requiring more invasive treatment. Exhs. 1 & 2; Exh. N, at 71-73. As a result, he suffered the effects of the treatment itself, as well as permanent dry-mouth, injury to his larynx, chronic hoarseness and weak voice, intermittent severe throat pain, dental problems related to his reduced salivation, and a much higher risk of death if his cancer recurs. Exhs. 1 & 2; Exh. N at 85-88; Exh. G, at 129, 136-41. At present he appears to be free of cancer.
B. Applying Eighth Amendment Law to the Facts The defense argues that Dr. Mathai did nothing wrong because at all times she followed the MDOC/CMS policies and procedures for monitoring serious disease and for the provision of
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urgent care. Where – following the established protocols – a PCP cannot get her cancer patient diagnosed for five months, and cannot get him treated for almost eight months, then (under the defendants’ logic) a reasonable jury could conclude that the fault must lie with the system itself.
As noted in Mr. Broder’s brief in response to the CMS defendants’ motion, the law in cases like this one is straightforward. There can be no doubt that the failure to timely diagnose and treat cancer, causing months of pain as well as permanent harm, meets the objective test of a serous medical need. Exh. N, at 85-88; Exh. G, at 129, 136-41. As to hands-on prison officials or medical staff who know of the plaintiff’s condition and know that he requires medical attention, if they fail to take steps to ensure timely diagnosis and treatment, the Eighth Amendment standard is met. See e.g., Blackmore v. Kalamazoo County, 390 F.3d 890, 896 (6th Cir. 2004); Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991) (having to endure physical pain and mental anguish during the time of delayed care constitutes cruel and unusual punishment within the meaning of the Eighth Amendment).
An Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall him; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002). A reasonable jury can conclude that prison officials knew of a substantial risk from the very fact that the risk was obvious. Id. at 843. It is hard to imagine a patient with a more obvious risk than cancer that was suspected as early as 8/20/01 and who could and should have been diagnosed at once, but who was not diagnosed for five months and who was not treated for almost eight months. Where the need for medical care is obvious, care which is so cursory as to amount to no treatment at all can amount to deliberate indifference. Id. at 843-44, citing Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989).
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As to higher prison officials like chief medical officer Pramstaller and regional health
care administrator Epp, the legal standard is somewhat different. Contrary to what the MDOC
defendants argue, see Defendants’ Brief, at 11-20, senior prison officials can be held liable for damages in their individual capacity. The cases in support of this proposition are legion,14 and
they clearly set out the applicable legal standard.
To hold senior prison officials liable in their individual capacity, the plaintiff must show
either that the senior officials participated directly in the unconstitutional act – which is not the
claim here – or that there is a causal connection between the actions of the supervisory officials
and the alleged constitutional deprivation. A causal connection can be established in several
ways, including (1) a history of widespread problems that put the supervisory officials on notice
of the need to correct the alleged deprivation, and they failed to do so, or (2) the supervisory offi-
cials’ custom or policy resulted in deliberate indifference to the plaintiff’s constitutional rights.
See e.g., Miller v. King, 384 F.3d 1248, 1261,, vacated on other grounds, 449 F.3d 1149 (11th
Cir. 2006) (warden denied summary judgment where wheelchair-bound prisoner alleged ongoing failure of paraplegic medical care).15
The Second Circuit applied much the same standard in Brock v. Wright, 315 F.3d 158
14 To eliminate distinctions, Mr. Broder will only cite cases involving state correctional facilities and state prison officials, as opposed to federal, county, city, or private facilities and officials. 15 Much the same standard applies in failure-to-protect cases. See e.g., Valdez v. Crosby, 450 F.3d 1231, 1237-38 (11th Cir. 2006) (warden denied summary judgment and qualified immunity in the context of a beating by rogue guards, where there was evidence of widespread physical abuse and warden failed to take steps to stop it; whether warden had established customs or policies that resulted in deliberate indifference was a factual question for the jury in light of the evidence presented by the plaintiff in opposition to summary judgment); Smith v. Brenoettsy, 158 F.3d 908, 912-13 (5th Cir. 1998) (affirming denial of summary judgment in light of factual dispute as to warden’s knowledge of substantial risk and reasonableness of warden’s response, where plaintiff, who was stabbed by a prison guard, had sent letters to warden complaining of verbal abuse and threats by guard, and warden responded that sheer volume of complaints made investigation of every complaint unreasonable).
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(2nd Cir. 2003). There the prisoner plaintiff had a painful scar growth on his cheek. The pain was bad enough that he could not brush his teeth on one side, causing dental problems. Senior health officials denied treatment because the condition was “cosmetic.” The court found the condition to be sufficiently serious as an objective matter to state an Eighth Amendment claim. Id., at 163-64. The court then turned to the subjective prong of the test. As to the chief medical officer, the court found that a reasonable jury could conclude that the prison medical policy not to treat keloid scars, as applied to the plaintiff, violated his Eighth Amendment rights. The court said the chief medical officer could be liable where he “created a policy or custom under which unconstitutional practices occurred or [where he] allowed the continuance of such a policy or custom.” Id., at 165-66 (emphasis added). The court added that the failure to try to prevent the scar growth in the first place (again pursuant to policy) presented a fact issue for the jury as well. Id., at 167. See also Burke v. North Dakota Dept. of Corrections, 294 F.3d 1043 (8th Cir. 2002) (medical director could be liable for failure to treat prisoner with Hepatitis C).
Moreover, although Dr. Pramstaller’s and Ms. Epp’s actual knowledge of Mr. Broder’s condition should be irrelevant here in light of the overwhelming evidence of a systemic failure of specialty/urgent care, courts have found that even very limited personal knowledge can result in individual liability. For example, in Richardson v. Goord, 347 F.3d 431 (2nd Cir. 2006), the plaintiff included the New York State Corrections Commissioner as a named defendant. The appellate court described supervisory liability under § 1983 as follows:
Supervisor liability under § 1983 “can be shown in one or more of the following ways: (1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring.” [Citations omitted.]
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Richardson testified at his deposition that he wrote Goord a letter complaining that [his] dosage was being withheld and that he was suffering great pain at night. The present record is sketchy. Richardson testified that he did not have a copy of the letter because it was missing from his cell. It is unclear what Richardson’s letter said, when it was written, and whether any prison officials can locate a copy. However, the evidence may create an issue of fact as to whether Goord was deliberately indifferent to Richardson’s medical needs. Accordingly, we vacate and remand to the district court for further fact-finding with respect to Goord’s knowledge of Richardson’s condition.
Richardson, supra, at 435. In Richardson, the DOC commissioner was not being sued based on
a policy or custom that blocked treatment, but because he arguably had personal knowledge (al-
beit very limited) of the problem and failed to take steps to address it. Accordingly, this Court
should deny defendant Pramstaller’s and defendant Epp’s motion for summary judgment not only
because of the evidence of widespread problems in the delivery of specialty/urgent care, but also
because both defendants had personal knowledge of Mr. Broder’s case and did nothing.16
But Mr. Broder’s core claim here is that the MDOC health care system, under the policies
and procedures authorized or approved or tolerated by the MDOC defendants, caused months of
unnecessary pain and suffering as well as permanent harm to Mr. Broder. On this issue, even the
defense experts agree that the delays in each phase of Mr. Broder’s case were outside of accept-
able bounds. As to Dr. Mathai’s 8/20/01 suspicions of cancer, Dr. Norman testified:
Q. My question is, assuming [Dr. Mathai] was concerned that [Mr. Broder] might have cancer. And at this point she identifies in her mind two kinds of cancer that could cause the symptoms that have been reported, how soon should she have an answer as to whether or the [Mr. Broder] has cancer to be within the standard of care?
16 Under Richardson, Dr. Pramstaller’s liability is based on his personal knowledge of Mr. Broder’s case via the letter and response described above. Ms. Epp’s liability would be based not – as the defendants’ suggest – on the bare fact that she responded to Mr. Broder’s grievances, but rather on the fact that the content of those grievances put her on notice of the late diagnosis and treatment of his cancer, and that (as regional health administrator) she was in a position to do something about it. The Court should note that Ms. Epp reviewed Mr. Broder’s grievance of 10/11/01 as well as his “policy-and-practice” grievance of 7/12/02. She also apparently requested a review of his case in March 2001, when the delays were being questioned by the Foote Hospital doctors. See Exh. 2, Barrett Dep., at 146-57.
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A. I would say certainly within a matter of days you would expect, just because of the nature of the procedure. It’s not that complicated to do.
Exh. O, at 37-38. Dr. Pramstaller said:
Q. Taking her at her word, and assuming that she ... did the ... chest x-ray because she suspected that [Mr. Broder] might have cancer, ... how long is an appropriate amount of time in your view for this patient to have a result back on the chest x-ray, so that we can rule in or rule out lung cancer?
A. Two or three weeks.
As to the tests that Dr. Antonini ordered on 10/12/01 (expecting a confirmed diagnosis
within 30 days), and that became Dr. Mathai’s duty to follow up on as the PCP, defense expert
Norman agreed that the results should have been available “within weeks.” Exh. O, at 50-51.
Q. When you say weeks instead of months, does that mean ... four weeks or less, so that we’re using weeks instead of months?
A. I would say four to six weeks.
Id., at 52. Dr. Pramstaller concurred:
Q. I’m not asking about having someone look at him, I’m asking how long should you wait from October 12th to know whether he has cancer or not? What seems to you like the outside margin? At this point you’ve agreed [from Mr. Broder’s letter to you of 9/23/01], and Antonini has agreed in a much more vehement way two-and-a-half weeks later, laryngeal cancer is a real possibility here. So by when do we need to know whether he has it or not?
A. I would say that the longest I would be comfortable with would be eight weeks.
Exh. F, at 53. From that point it was 13-14 weeks (mid-January) before there was a diagnosis.
Regarding the ENT’s request on 11/13/01 for biopsy surgery within 2-3 weeks, we know
that surgery did not occur for two months. Dr. Mathai signed a form that allowed the case not to
come back to her attention for more than 30 days. Although Dr. Pramstaller testified that he
“would have questions” whether or not it was appropriate for her to sign the form, or to sign yet
another 30-day form on 1/2/02 (Exh. F, at 69), the form was one that the MDOC and CMS had
approved for use in the prisons in precisely this situation. It allowed the PCP to put the case over
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for 30 days, knowing that if there were a problem – then absent a “next-visit” tickler scheduled in the interim – the problem would not discovered for at least a month, at which point the process of scheduling the patient would have to begin anew. If this case shows anything, it is that the delays at every stage were completely predictable and, indeed, were effectively built in to the process. As one of the plaintiff’s experts put it, “[T]he work-up was proceeding at a snail’s pace.” Everything was “way too slow.” Exh. M, at 54, 18.
Once Mr. Broder’s cancer was diagnosed, Dr. Hayman said the outside window from diagnosis to treatment should be 4-6 weeks. Exh. K, at 40. Dr. Pramstaller and Dr. Tsien agreed. Exh. F, at 74-76, Exh. L, at 48-49. The plaintiff’s experts agree. Exhs. 1 & 2. Yet Mr. Broder went from mid-January to April 2 before his treatment began, and then it only happened because of the clamoring of the doctors at Foote Hospital. The startling thing is that even when the PCP physician knew that the diagnosis had taken months longer than each requesting doctor had wanted, there was apparently still nothing she could do – within the policies and procedures established – to speed up the initiation of treatment.
The claim against defendants Pramstaller and Epp is that the procedures at Parnall Correctional Facility in 2001-02 were constitutionally deficient. The record shows that at every phase of the case – over and over again – it was impossible to get urgent care on time. The system required that any outside specialty care – both consultations and tests – had to be procured by (1) correctly filling out the right form, (2) having it sent (typically) to the PCP for her approval, (3) forwarding it to CMS for its approval, (4) having it go to a scheduling unit to arrange for the appointment to be made, and (5) then making sure that the appointment was actually scheduled and kept. See e.g., Exh. H, at 72-76. Any follow-up care required that the same steps be done again. Exh. Q. And in 2001-02 – according to Dr. Mathai – the physicians and the schedulers
24

never consulted with each other. Exh. H., at 79. What the record in this case amply demonstrates is that forms were not filled out, or if
filled out were not timely approved by the PCP, or if approved were not timely forwarded to CMS, or if forwarded were not timely approved by CMS. If the forms were timely approved, the appointments were not timely scheduled (within the limits set by the requesting doctors), or the actual appointments were subject to cancellation due to transportation problems, faulty equipment, etc. Over and over again the record shows that the prison medical system could not provide urgent care within the time-frames of the requesting doctors. To get timely urgent care, the doctors had to take extra measures (like personally calling the scheduling office), or had to violate protocol (like doing a test without approval and getting the approval after the fact). Exh. C, at 7. Otherwise, nothing happened on time – even with a cancer patient.
When nothing happened, there were no procedures in place to catch and/or to correct the problem. The only “tickler” system was to re-schedule the patient for a clinic visit in 30-60 days. That meant that the problem typically would not come to the attention of the PCP until the time for results had long-since passed. It also required (1) that the follow-up appointment not be canceled; (2) that the same doctor see the patient; (3) that she have recorded in the file what needed to be done, so that she (or a replacement doctor) could discover the delay or the lapse; (4) that the PCP actually review the file at the next appointment in sufficient detail to catch the error, and (5) having noticed the lapse, that the PCP do something about it other than approving the delay or awaiting some future (still unknown) re-scheduling date.
Dr. Hutchinson conceded in his deposition that – absent some other intervention – under the “next visit” system a PCP would not know until the next visit if a glitch occurred. Exh. I, at 48-49.
25

Q. In a situation like this where the scheduled appointment is five to six weeks beyond the date that the specialist has requested, what check or system is in place at the facility to catch that?
A. I don’t know what was in place at the facility to monitor that, to question that other than the scheduling of the patient with the primary care provider every thirty days while awaiting the delivery of the specialty service.

*

*

*

*

*

*

Q. If she doesn’t come over and he doesn’t see her for thirty more days, isn’t it guaranteed

that if there was a problem that she is not going to know about it until we’re now roughly

four weeks passed the deadline the expert had set?

A. Well, that’s the way the system is set up, for every thirty day visits. If she had elected to

see him sooner than that she would have had that ability. But the system is set up to bring

the patient back every thirty days. It’s a one size fits all thirty days. It’s not varying by

the nature of the problem.

Huchinson Dep., Exh. I, at 70, 76-77. In other words, if you need urgent care, you aren’t going to

get it, because the system is not designed to vary based on the nature of the problem. Dr. Hutch-

inson said that he “would not engineer” such a system deliberately to cause delay, id. at 80, but

that is exactly what he did. The MDOC defendants authorized or approved or tolerated the sys-

tem with full knowledge of its predictable results. Exh. P, Hadix Order (2002 ).

The defendants try to lay the blame for the delays at the feet of the consulting specialists,

but the consistent message from the specialists is that they were powerless to set appointments.

They had to submit the appropriate form and rely on the prison system to take it from there. As

Dr. Tsien said, “I can’t bring [the prisoner] to my office.” Exh. L, at 19-20. She made it sound

like her office noticed that Mr. Broder was late (in February 2002) and immediately began calling

the prison to try to get him scheduled, with no result. Id., at 21-23. She was not aware of anyone

from the prison side pressing to get the appointment made – she said she had never heard of Dr.

Mathai and had never spoken to any prison doctor about scheduling. Id., at 28-30. When asked

how the process worked, she answered, “I wish I knew. To this day I don’t know.” Id., at 30. A

reasonable jury could conclude that in 2001-02 the system for specialty care scheduling was dys-

26

functional, and that the MDOC defendants knew it and did nothing. That is enough for liability

under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 847 (1994).

The other systemic problem was that none of the written information from the patient was

recorded in a way to be of use to the PCP. It is undisputed that none of the contents of Mr. Bro-

der’s health care kites, his letters directly to the health care providers, his grievances, or his letter

to Dr. Pramstaller, ever made it into his medical file. The letters to the health care providers and

the kites to the nurses are especially egregious because the prisoner-patient has no other way to

communicate. This, too, was a systemic problem, that was the responsibility of chief medical of-

ficer Pramstaller and regional health administrator Epp to change or to cure.

Q. When the information in that kite relates to the prisoner’s medical condition, would you

expect the information in the kite to make it into the medical record?

A. Yes.

*

*

*

*

*

Q. And if the information that the patient has written into the request doesn’t make it into the

medical record and it’s important information, in your view, does that indicate some kind

of breakdown in the system? [Objections omitted.]

A. It could indicate a breakdown in the system.

Exh. O, Defense Expert Norman Deposition, at 44-45. No information from Mr. Broder ever

found its way into his file, despite a steady stream of detailed kites, letters, and grievances all

saying the same thing. A reasonable jury could find that the system of accessing health care and

getting critical diagnostic information to the health care providers violated Mr.Broder’s Eighth

Amendment rights.

As to the MDOC defendants’ individual responsibility, Dr. Pramstaller testified that as of July 2001, he was the acting chief medical officer for the MDOC. Exh. F, at 3.17 As to regional

17 At least until November 2001 the position of administrator of the MDOC Bureau of Health Care Services was vacant. In any event, the administrator is not a physician – making Dr. Pramstaller the senior MDOC physician, as he acknowledged. Exh. F., at 8-9.
27

administrator Epp, Dr. Pramstaller testified: Q. ...if the processes that were in place in her region turned out to inhibit the provision of quality care or timely care, would that ultimately be her responsibility? A. I believe so, yeah.
Exh. 1. Accordingly, a reasonable jury could find that chief medical officer Pramstaller and regional health care administrator Epp were responsible for any systemic failures that were a proximate cause of the harm suffered by Mr. Broder, in violation of the Eighth Amendment.
C. The Hadix Evidence The delays in Mr. Broder’s diagnosis and treatment were not aberrations, but were part of a systemic failure of care with which the MDOC defendants were all too well-acquainted. At all relevant times Mr. Broder was housed at the Parnell Correctional Facility in Jackson. Parnall was one of the facilities covered by the consent judgment in the long-running Hadix litigation.18 Indeed, at the very time that Mr. Broder’s cancer remained undiagnosed and untreated, the Hadix court was monitoring the care provided to patients with serious diseases and urgent medical needs at the Parnall facility. Exh. P, Findings of Fact and Conclusions of Law, (2002), ¶¶ 17, 31, 33. As to the precise issues presented by this case – timeliness of diagnosis and treatment, system-wide failures of care and/or supervision, pervasive scheduling delays for urgent care, systematic failure to coordinate and monitor, etc. – the Hadix court made the following determinations after a hearing in May 2002, which itself was based on monitoring which occurred in mid-to-late 2001 (the very time when Mr. Broder’s cancer was going undiagnosed and untreated):19
18 For a description of that litigation, see the Hadix court’s recent Findings of Fact and Conclusions of Law (Order of 12/7/06), excerpted as Exh. Q, at 1-5. Upon information and belief, Mr. Broder is a class member in the Hadix case. 19 For each of the findings and conclusions, the Hadix court recited a long series of factual examples in random cases unearthed by the monitor. The Hadix court based its findings on those recitations. Exh. P, Excerpts.
28

217. [Prisoners with Urgent and Emergent Symptoms] Based on the number and severity of incidents, their pervasiveness among the health care outcomes examined, and their serious consequences to patients in need of serious medical treatment, the Court finds that the system of access to health care did not provide reliable and timely access to care for prisoners with urgent or emergent symptoms. ...The Court finds that the existing system of access continues to violate ... the Eighth Amendment....
324. [Responses to Kites] Based on these pervasive and serious failures to timely address serious medical needs, the Court finds that the implementation of the access to health care system did not provide reliable access to care for prisoners with urgent or emergent symptoms. ...The Court finds that the existing system of access continues to violate ... the Eighth Amendment....
356. [Harm from Failures of the Health Care Access System] The failures of the health care access system have caused prisoners serious harm and inflicted unnecessary pain, suffering and loss of function.
370. In [the sample cases] and many other cases the failure to provide timely treatment created a serious and obvious risk of harm to the prisoner.
371. The Court finds that the existing system of access and its implementation continues to violate ... the Eighth Amendment....
473. [Chronic Disease: Harm to Patients from Medication Interruption] Based on the pervasiveness of [sample] incidents involving serious and preventable health consequences and unnecessary pain, the Court finds that the medical treatment for prisoners with chronic diseases continues to violate ... the Eighth Amendment....
475. [Clinical Practice: General Issues] According to Defendants’ own internal audit, during the period from October 2001 through January 2002, the performance ratings of the mid-level health staff (nurse practitioners and physicians’ assistants) ranged from a low of forty percent to a high of sixty percent. As a result of this finding, Dr. Pramstaller recommended that CMS be notified that it was in violation of its contract requirements to provide clinical supervision to the mid-level providers.
476. It is Dr. Pramstaller’s opinion that the results of the audit indicate “very poor” performance by the physician providers in auditing mid-level staff.
618. [Physician Supervision of Health Care: Ensuring Appropriate Levels of Clinical Performance] The medical staff in place do not reliably perform their duties with an acceptable level of skill and expertise.
701. [Referrals for Specialty Services] MDOC met with CMS and an agreement was reached that if a 10-day requirement exists (i.e., urgent care), the paperwork turnaround must be accomplished in a day.
29

702. MDOC and CMS recognize that there are some specialty areas as to which appointments are scarce both in the free world and in corrections. [Discussing such scarcity-based delays] ... In those cases, it becomes the primary care physician’s responsibility for determining whether the appointment scheduling is acceptable. (Emphasis added.)
The Hadix court’s findings of fact and conclusions of law are powerful evidence in sup-
port of Mr. Broder’s claim that the delays in his case were proximately caused by flaws in the
health care system. The court was looking at exactly the same policies, procedures, and systems
for treating prisoners with serious disease and urgent medical needs that are at issue here. The
pattern of delay, failure to monitor, and failure to supervise Mr. Broder’s case is consistent with
the pattern revealed in the study of similar cases, conducted at the same time and place, and in-
volving hundreds of similar prisoner-patients. Exh. P. Dr. Hutchinson admits that the system in
place then was worse than today (Exh. I, at 63), yet even today, after four more years of work,
and after some significant improvements, as to these specific issues, the Hadix court still finds
the system to be constitutionally deficient. Exh. Q.
The Hadix case provides the strongest possible evidence because it shows that Mr. Bro-
der’s late diagnosis and treatment were not isolated or aberrational events, and that the MDOC
defendants had detailed knowledge of the system’s shortcomings. One of the chief targets of the
Hadix court’s ire has been the policies and procedures governing urgent care in cases like Mr.
Broder’s. As the Hadix court aptly said in its recent order (describing the improved version of
the same system that was in place in 2002):
Both the persuasive testimonies [of the expert monitors] demonstrate clearly and beyond peradventure that the specialty referral process is “profoundly deficient.” [Record citation omitted.] Such care is routinely delayed beyond the time medically necessary. Furthermore, the delays tend to topple one upon the other for patients with regular needs for specialty service (e.g., cancer patients). Such delays cause unnecessary death, illness and extreme suffering. In light of such record, it is clear that injunctive relief is necessary to prevent further irreparable harm to class members.
30

Exh. Q, ¶ 110, (emphasis added.) In sum, where another federal district court has already concluded that the policies, pro-
cedures, and health care systems in place at Parnall in 2001-02 violated the Eighth Amendment, this Court cannot grant summary judgment on the grounds that there is no genuine issue of material fact that they did not. Nor does the plaintiff need separate expert testimony to establish by a preponderance of the evidence that the policies and procedures were a proximate cause of the harm he suffered. As noted in detail in Part I (A) above, experts on both sides have testified that the diagnosis and treatment of Mr. Broder’s cancer fell outside acceptable time limits at each phase of his medical work-up, and even the defense expert on prison medical care conceded that some of the failures – like the failure to get critical information to the PCP – can accurately be called “systemic.” On the evidence submitted on summary judgment, taking all the facts in the light most favorable to the plaintiff, a reasonable jury could find that defendants Pramstaller and Epp violated Mr. Broder’s Eighth Amendment rights because the policies and procedures in place at Parnall in 2001-02 were a proximate cause of his injuries and amounted to deliberate indifference to his serious medical needs.
II. THE EXHAUSTION ISSUES The MDOC defendants argue that Mr. Broder failed to exhaust his administrative remedies under the PLRA. See MDOC Defendants’ Brief, at 21-28.
A. The 2004 Motion to Dismiss First, the Court has already decided this issue. In response to the CMS defendants’ 2004 motion to dismiss, as well as sua sponte pursuant 28 U.S.C. § 1915A, the U.S. Magistrate Judge issued a report and recommendation (dated 8/9/04) that was – as to this argument – adopted by the Court in a short opinion and order (dated 9/22/04). That is to say, the R&R explicitly found
31

that the four grievances attached to the complaint were fully exhausted. See R&R, at 8-9. The
Magistrate Judge found that in each case the plaintiff timely appealed his grievance to Step III,
and that he did not file his lawsuit until long after the period for a Step III response by the De-
partment was due. R&R, at 19. Contrary to what the MDOC defendants now assert, the Court
has already found that all four grievances were fully exhausted.20
B. The “Policy and Practice” Grievance
As to the MDOC defendants bringing this motion, Mr. Broder filed a grievance on July
12, 2002. The grievance stated as follows:
Medical kites were submitted and conversations held with medical staff at different visits.
Having had a medical complaint lodged in approximately March of 2001 and left in an untreated state until April of 2002, where cancer was detected in January of 2002, has caused the necessity of filing this grievance. I was hospitalized for the majority of April, and portions of May and June, due to the delays in diagnosis and treatment.
I am filing this grievance to complain about the delays in diagnosis and treatment of my cancer, which caused months of unnecessary pain and medical complications. I want to make sure this never happens again and want compensation for the harm I have suffered. This grievance is against the following doctors and staff (see attached list), and any other treating personnel, supervising personnel, and any and all other individuals or organizations involved in the diagnosis, treatment, or referral of my condition. Policy 03.04.100 indicates that “The Department shall provide ... a continuum of health care services that is accessible, timely, and provided in a humane ... manner,” and pursuant to policy, Grievant’s condition was either “urgent” or “emergent.”
Mr. Broder attached to the grievance a list of 37 names pulled from his medical records, includ-
ing Dr. Pramstaller and Jan Epp, and adding for good measure, “Any and all CMS personnel”
and “Any and all MDOC personnel.” See Complaint, Exh. 1, Grievances; and Plaintiff’s Brief in
20 The Court adopted the R&R in all respects but one. Judge Rosen found – as to the corporate entity CMS, Inc. – that it had not been named in its corporate capacity in the relevant grievance, and therefore it should be dismissed as a party-defendant. See Opinion and Order, at 2-4. The omission by the plaintiff was of no consequence, because the Court also found that suit against CMS was barred by the Eleventh Amendment. Id., at 5. The Court then permitted the addition of CMS’s state medical director, Dr. Craig Hutchinson, in place of the dismissed corporate defendant. See Order (dated 10/30/04).
32

Opposition to Motion to Dismiss, Exh. 1 (List). It is hard to imagine a more clearly stated or more thorough “policy and practice” grievance. The MDOC answered the grievance on the merits, and Mr. Broder timely appealed it through Step III of the grievance process.21
C. The Woodford Issue The MDOC defendants next argue that dismissal is required under Woodford v. Ngo, 548 U.S. ___, 126 S. Ct. 2378 (2006). Woodford resolved a circuit split as to whether late-filed grievances could still fulfill the PLRA’s exhaustion requirement. The Court held that they could not, in effect applying a “procedural default” rule. Id., at 2387. That is to say, if a grievance is filed late, and is rejected by the prison authorities on that basis, the prisoner cannot appeal the tardy grievance to the final administrative step, and then file suit in federal court, as if he had filed a timely grievance in the first place. The Court said that to permit such a procedure would eliminate any incentive to file a timely grievance at the start, and to have the merits of the grievance addressed at the level of the prison grievance process, before permitting the far more costly avenue of federal court litigation. Id., at 2384-88. The Woodford decision overruled Thomas v. Woolum, 337 F.3d 720, 723 (6th Cir. 2003), which had gone the other way on this issue. See Woodford, supra, at 2384. The problem for the MDOC defendants here, of course, is that all four of Mr. Broder’s grievances were answered on the merits, at each Step (I, II, or III) that an answer was given by the MDOC. None of the grievances was rejected as untimely. See Complaint, Exh. 1, Griev-
21 The MDOC defendants are unclear about the alleged exhaustion defect. In the first part of their brief, see Defendants’ Brief, at 10, they state that Mr. Broder never named any of the MDOC defendants in any of his grievances. Later on, however, id. at 24, they concede that Pramstaller and Epp were named in the July 12, 2002, grievance.
33

ances and Denials Pursuant 42 U.S.C. § 1997E(A).22 In this situation, it simply does not matter
whether Woodford is applied retroactively or not, because all four grievances were accepted as
timely by the MDOC, and the prison authorities addressed the claims of each, and duly denied
each grievance on the merits. Woodford itself suggests that in this situation exhaustion has been
shown and that the plaintiff’s case can and should go forward. Id., at 2384-88 (noting that in
Woodford the plaintiff’s grievance was denied as untimely, and that prison authorities did not
exercise their discretion to address its merits despite being untimely). Id., at 2391-92.
Post-Woodford courts have agreed. For example, in Jones v. Steward, 457 F. Supp. 2d
1131 (D. Nev. 2006), the court said:
The question raised by this motion is whether administrative remedies are properly exhausted when an inmate’s untimely grievance is nonetheless addressed by the prison on its merits.
The Supreme Court defines proper exhaustion as “using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” 126 S.Ct. at 2385 [citation omitted]. ... We read Justice Alito’s majority opinion in Woodford as setting forth two tests for “proper exhaustion.” The “merits test” is satisfied when a plaintiff’s grievance is fully addressed on the merits by the administrative agency and appealed through all the agency’s levels. The “compliance test” is satisfied when a plaintiff complies with all “critical procedural rules,” including agency deadlines. A finding that a plaintiff has met either test is sufficient for finding “proper exhaustion.” Defendants must show that Plaintiff failed to meet both the merits and compliance tests to succeed in a motion to dismiss for failure to exhaust administrative remedies.
Jones, supra, at 1134. The Jones court reviewed Woodford with care – both as to its text and the
policies underlying the decision – and concluded that:
The majority opinion in Woodford indicates that the central goal served by requiring proper exhaustion under the PLRA is preventing prisoners from bypassing the administrative
22 For the record, Mr. Broder does not agree that his grievances were untimely. In each case he filed his grievance soon after the event that he was complaining about. As to his “policy and practice” grievance, he filed it upon completion of his treatment, as soon as he was back on his feet. That grievance did not challenge a specific event, but rather the prison health care system that cumulatively caused the late diagnosis and treatment of his cancer. See Complaint, Grievance of July 12, 2002.
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grievance process. ... In Woodford, ... the inmate complainant failed to meet both the merits and compliance tests. [He] failed to meet the merits test because the California prison in that case never addressed his grievance on its merits. [Citation omitted.] His administrative appeal only dealt with procedural issues (whether a grievance regarding a continuing issue can be untimely), not the merits of his grievance. Id. at 2403 (Stevens, J., dissenting). Also, [he] failed to meet the compliance test by violating a critical procedural rule. He filed his grievance over five months after the deadline had passed. Id. at 2383-84. Defendants ask us to extend this ruling to dismiss the claim of a plaintiff who has only failed to meet one test. Reading Woodford in light of the policy considerations set forth in Justice Alito’s majority opinion, we decline to so extend the Supreme Court’s holding.

The proper exhaustion requirement generally serves two purposes: protecting administra-

tive agency authority and promoting efficiency. Id. at 2385. We hold that, in light of

these policy concerns, the merits and compliance tests are independent, not cumulative.

Satisfaction of either test is sufficient for a finding of proper exhaustion, and a defendant

must show failure to meet both tests to succeed on a motion to dismiss for failure to ex-

haust administrative remedies.

*

*

*

*

*

*

... [H]aving an untimely grievance addressed on the merits in the administrative agency’s

grievance system is just as likely to convince a complainant not to pursue the matter in

federal court as having a timely grievance addressed on the merits would be. Lastly, an

administrative record is still generated when the agency hears the grievance and appeals

on the merits.

Jones, supra, at 1134-38.

All of this makes perfect sense, because the point of the grievance process is not to create

mindless procedural hoops that prisoners must jump through, but rather to craft a route by which

prison disputes can be resolved quickly and cheaply, before prisoners are allowed to take their

claims to court. In this case, as the record makes abundantly clear, Mr. Broder tried to get help

speeding up his diagnosis and treatment, to no avail. At the end, he filed a grievance challenging

not (or not just) the failure to get a specific medical test, visit, or authorization on time, but chal-

lenging instead (or in addition) the underlying policies and procedures that caused the systematic

delays in his diagnosis and treatment. That claim was fully and fairly addressed by the MDOC,

and Mr. Broder did not file this action until it was clear that no relief would be forthcoming from

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the Department. See Complaint, Exh. 1, Grievances.23 Mr. Broder, like the prisoner-plaintiff in Jones, “did not commit one procedural error after another in order to have his grievance denied on procedural grounds,” id. at 1135, so that he could go straight to court.
The case cited and attached by the MDOC defendants is inapposite for the same reason. In Irving v. Kelly, E.D. Mich. No. 03-CV-75106, attached to the Defendants’ Brief as Exh. 5, Judge Roberts rightly dismissed the prisoner-plaintiff’s claim because the MDOC itself had rejected all of the prisoner’s grievances as untimely. Id., at 4. It is the MDOC’s job to decide if a grievance is timely, or to choose to decide it on the merits even if it is untimely. It is not the job of the federal district courts to decide – four or five years later – whether or not a grievance was timely filed, when the MDOC treated the grievance as timely and fully answered it on the merits. Accordingly, Woodford would have no effect on this case even if it were to be applied retroactively.
D. Naming the Defendant and Complete Exhaustion The MDOC defendants next argue that under current Sixth Circuit law the plaintiff must have named in his grievances all parties whom he later named in his complaint, and must have exhausted “completely” all of his claims. See MDOC Defendants’ Brief, at 21-24, 27. The short answer to this argument is that – as shown above – the plaintiff did fully name and exhaust as to all defendants who could have been sued. The only defendant whom he did not satisfactorily name – according to the Court – was CMS, Inc., which the Court said was not an entity amenable to suit under the Eleventh Amendment. It is not a failure of “exhaustion” that Mr.Broder failed
23 If the MDOC defendants’ arguments were taken at face value, no prisoner could ever bring a “policyand-practice” lawsuit, because his underlying grievance could only relate back to the most recent event. In effect the prisoner would be required to file endless grievances, day after day, and appeal them all; but long before he could file suit he would be placed on administrative grievance restrictions.
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to name CMS with sufficient specificity, if CMS cannot be sued (according to the Court) in the first instance, because of the bar of the Eleventh Amendment.
The only other defendant whom Mr. Boder did not name individually in his July 2002 grievance was director Caruso, whom – according to the Defendants’ Brief, at 10 – he could not have named in a grievance because she did not become the director until July 2003. As noted above, director Caruso is a defendant only for purposes of prospective injunctive relief, to assure timely specialty/urgent health care in the future. For this purpose, Mr. Broder must sue the current director. When he files his grievance he cannot predict who that person will be (if and when he ever files suit), and when he finally files suit he cannot then file a timely grievance against that person retroactively. Under the defendants’ reasoning, no suit could ever be brought against the director for injunctive relief because the prisoner-plaintiff would be caught in a grievance Catch22 that would forever close the courthouse door.24
Finally, even if there were an unresolved issue in this case about naming a defendant or complete exhaustion, this Court should not address the issue. On October 30, 2006, the U.S. Supreme Court heard oral argument in Jones v. Bock, 135 Fed. Appx. 837 (6th Cir. 2005), cert. granted, 126 S.Ct. 1462 (2006), and Williams v. Overton, 136 Fed. Appx. 859 (6th Cir. 2005), cert. granted, 126 S.Ct. 1463 (2006). These two cases present exactly the issues raised by the MDOC defendants – the naming of defendants in grievances and complete exhaustion under the PLRA – and a decision is expected from the High Court shortly. Accordingly, even if the Court here thinks there is something left to decide on this issue, it should await the decision in Jones
24 Mr. Broder did the next best thing – he made his July 2002 grievance as broad as it could possibly be, so that it would apply to anyone and everyone who was responsible for the late diagnosis and treatment of his cancer, at any level of the MDOC or CMS. See Grievance (7/12/02), List.
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and Williams.25 IV. THE ELEVENTH AMENDMENT AND QUALIFIED IMMUNITY A. The Eleventh Amendment The MDOC defendants next argue that a so-called “policy and custom” or “policy and
practice” lawsuit can never be brought against a state department or state officials because of the Eleventh Amendment. MDOC Defendants’ Brief, at 11, n. 15. The defendants are right as to the MDOC, see Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) (a state agency is not a “person” susceptible to suit under 42 U.S.C. § 1983), but are wrong as to state officials. Indeed, if the defendants were right as to state officials, then the constitutionality of state policies and/or customs could never be challenged (without the state’s consent), and all state policies and customs, as well as all state officials, would be above the law.
A near-at-hand example (showing that the defendants are wrong) is the long-running Hadix case. There the plaintiffs challenged a broad array of MDOC policies and customs, especially relating to access to medical care. The named defendants were and are the high MDOC officials who designed or drafted the policies and customs (in the past), and those who approve, authorize, or tolerate them (today). Since the Hadix case has been to the Sixth Circuit and to the U.S. Supreme Court multiple times, one would think that if the Eleventh Amendment barred all suits against state officials for damages or for injunctive relief, see Defendants’ Brief, at 11, then at some point surely the appellate courts would have thrown out the Hadix lawsuit on that basis.
What is really happening is that the defendants are simply mis-characterizing Mr. Bro-
25 The Sixth Circuit’s “name the defendant” and “complete exhaustion” rules are minority positions in the circuits, see e.g., Brownell v. Krom, 446 F.3d 305, 306 (2nd Cir. 2006), and Kikumura v. Osagie, 461 F.3d 1269, 1284 (10th Cir. 2006). The conventional wisdom is that the U.S. Supreme Court granted cert. in Jones and Williams out of concern for the Draconian effects of the Sixth Circuit’s wayward rules.
38

der’s claims. He is suing the chief medical officer and the regional health care administrator individually because they had the responsibility to make sure that the health care policies and procedures in place at Parnall in 2001-02 were not a proximate cause of the violation of his Eighth Amendment rights. Mr. Broder has shown that by 2001 these defendants had to have been – and a reasonable jury could find that they were – acutely aware that specialty care and urgent care were consistently being denied to prisoners with serious medical problems. Both the risks and the systemic failure were obvious, yet these defendants did nothing to change the policies and procedures or to prevent the near-certain harm that flowed from them.26 This is a classic “policy and custom” case, and for years state officials have been held liable for damages in exactly these sorts of circumstances, despite the Eleventh Amendment. See cases cited in Part I, supra.
Mr. Broder’s position can perhaps be made clearer by a simple hypothetical. Assume that the MDOC defendants decided to stop providing medical care to prisoners altogether. By policy or custom, the chief medical officer and the regional health care administrator cease filling empty positions and/or fire existing medical staff. The risk of harm to the prisoners would be obvious, and the unconstitutionality of the policy or custom would be apparent. No doctors would be present to commit malpractice, and no lower-level providers could be blamed for the lack of care. Although neither the chief medical officer nor the regional health care administrator ever had the duty to provide direct (hands-on) medical care, surely they could be sued under 42 U.S.C. § 1983 for the Eighth Amendment violation and the foreseeable harm caused by their policy and custom. The aggrieved prisoner plaintiffs could be awarded both damages and injunctive relief.
Mr. Broder’s claim here is no different in kind, and not much different in degree. He as-
26 As noted earlier, if the Court finds that individual knowledge of the plaintiff’s specific medical case is necessary, that, too, is present here. See Part I, and n. 16, supra.
39

serts that defendants Pramstaller and Epp knew of the systemic failure of care and did nothing, and that the polices and procedures that they designed, approved, or tolerated were a proximate cause of the delay in the diagnosis and treatment of his cancer. (And to make matters worse, they had actual knowledge of the delays in his specific case, and still did nothing.) Taking the evidence in the light most favorable to him, a reasonable jury could find in his favor, and award him damages on this claim.
In addition, because Mr. Broder remains incarcerated, and because he could need urgent care at any time, and because the “policies and customs” in place at Parnall in 2001-02 have not been corrected, see Exh. Q, Hadix Order (2006), he faces the very real risk that exactly the same thing that happened to him in 2001-02 will happen to him again, in 2007 (or beyond). For that reason he seeks prospective injunctive relief for the ongoing constitutional violations that exist at Parnall, and that still put him at daily risk of serious harm.27 For purposes of prospective injunctive relief, all he needs to show is that the violation – the underlying unconstitutional policy or custom – is ongoing, and that a sufficient risk of harm remains to give him standing to bring the claim. Both are present here. Therefore, the Eleventh Amendment is no bar. The Court should deny the MDOC defendants’ motion on this basis.
B. Qualified Immunity The MDOC defendants’ last argument is that they should be dismissed from the case on the grounds of qualified immunity. This appears to be a throwaway argument, because by 2001
27 The very nature of urgent medical care is that no particular prisoner can know in advance when his or her need for it will arise. If only prisoners who were urgently sick could seek injunctive relief, then no one ever would – the sick prisoners would not be able to sue on account of their illnesses, and those who were ill in the past (like Mr. Broder) would either be dead, see Exh. P (Hadix examples), or would be told that they no longer had standing because they were cured. The wrong would be ongoing – capable of repetition yet evading review.
40

the law had long been perfectly clear that higher-level prison authorities could be liable for health care policies and procedures that violate prisoners’ Eighth Amendment rights. See Part I, supra, and Estelle v. Gamble, 501 U.S. 294 (1991).
In this case, it is clear from the ongoing Hadix litigation that chief medical officer Pramstaller and regional health administrator Epp were fully aware that the policies and procedures in place at Parnall in 2001-02 were the cause of extreme delays in diagnosis and treatment – across the board – for specialty referrals and urgent care. Moreover, both had actual knowledge of the delays in Mr. Broder’s case and did nothing. There is no basis in the record for either defendant to be granted qualified immunity.
41

CONCLUSION

For the above reasons, the CMS defendants’ motion for summary judgment should be

denied. The Court should find that there are genuine issues of material fact as to the plaintiff’s

Eighth Amendment claims. The Court should also find that a reasonable jury could award dam-

ages against defendants Pramstaller and Epp in their individual capacities, and that this Court

could grant prospective injunctive relief against defendants Pramstaller and Caruso in their of-

ficial capacities. The Court should schedule the case for trial.

Respectfully submitted,

MICHIGAN CLINICAL LAW PROGRAM

Dated: January 19, 2007

/s/ Paul D. Reingold 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 P-27594 pdr@umich.edu

Proof of Service

The plaintiff’s brief in response to the MDOC defendants’ motion for summary judgment, and all attached exhibits, were served using the Court’s ECF system, which will provide notice by e-mail to all counsel listed on the case caption.

/s/ Paul D. Reingold Attorney for Plaintiff pdr@umich.edu

Dated: January 19, 2007

42

Plaintiff’s Index of Exhibits
1. Pramstaller Dep. (Excerpt) 2. Barrett Dep. (Excerpt)

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION ____________________________________

STEVEN BRODER, vs.

Plaintiff,

File No. 03-CV-75106

CORRECTIONAL MEDICAL SERVICES, INC., et al.,

Judge Gerald E. Rosen U.S. Mag. Judge Paul J. Komives

Defendants. ______________________________________________________________________________

MICHIGAN CLINICAL LAW PROGRAM By: Paul D. Reingold (P-27594) Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319
Kevin Thom (P-36178) Assistant Attorney General Attorney for Defendants Caruso, Pramstaller, and Epps Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P-37603) Brian J. Richtarcik (P-49390) Attorneys for Defendants Hutchinson and Mathai 40950 North Woodward Ave., Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326

______________________________________________________________________________

PLAINTIFF’S BRIEF IN RESPONSE TO
CMS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Table of Contents

Statement of Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii The Legal Standard and Controlling Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Proceedings to Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

THE EIGHTH AMENDMENT AND MED-MAL CLAIMS AGAINST DR. MATHAI . . . . . . . . . . . 4

A. The Operative Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Applying Eighth Amendment Law to the Facts as to Dr. Mathai . . . . . . . . . . . . 17

C. Applying State Med-Mal Law to the Facts as to Dr. Mathai . . . . . . . . . . . . . . . . 20

II. THE EIGHTH AMENDMENT CLAIM AGAINST DR. HUTCHINSON . . . . . . . . . . . . . . . . . . . . 23

A. The Evidence from the Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. The Sweeton Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

III. THE MED-MAL PROCEDURAL ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

A. The Affidavit of Merit and the Amended Complaint . . . . . . . . . . . . . . . . . . . . . 32

B. The Specificity of the Notice of Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

C. The Affidavit of Merit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

D. The Issue of Proximate Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

IV. MR. BRODER’S MEDICAL EXPERT’S OPINION AS TO THE MED-MAL CLAIM . . . . . . . . . . 37

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Proof of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Index of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –

i

Statement of Issues Presented 1. Did the primary care physician’s late diagnosis and treatment of the plaintiff’s throat cancer violate the Eighth Amendment and the Michigan medical malpractice act?
The plaintiff says yes. 2. Did Correctional Medical Services’ policies and procedures, as implemented by its state medical director, violate the Eighth Amendment?
The plaintiff says yes. 3. Are there genuine issues of material fact as to both questions #1 and #2?
The plaintiff says yes. 4. Has the plaintiff complied with the state medical malpractice act?
The plaintiff says yes.
ii

The Legal Standard and Controlling Authority To prevail on his Eighth Amendment claim, the plaintiff must show that the defendants were deliberately indifferent to his serous medical needs. See Estelle v. Gamble, 501 U.S. 294 (1991). As to a treating physician, he must show that the doctor was aware of his medical needs (or should have been aware of his medical needs by their obviousness) and yet failed to address them. Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004); Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002). As to a policy-maker or policyimplementer, the plaintiff must show that the constitutional harm he suffered was a result of the policies or procedures in place, amounting to deliberate indifference to his serious medical needs. See e.g., City of Canton v. Harris, 489 U.S. 378, 392 (1989). In this context, deliberate indifference can be shown by proof that the policy maker was aware that inmates “face a substantial risk of serious harm and disregards the risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). To prevail on his state medical malpractice claim, the plaintiff must show negligence – a failure to meet the standard of care – by the treating physician. MCL 600.2169. To be granted summary judgment, the defendants must show that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004).
iii

TABLE OF AUTHORITIES Cases Bailey v. Pornpchit, 2006 Mich. App. LEXIS 2459 (8/8/06) . . . . . . . . . . . . . . . . . . . . . . . . 35, 36 Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 18 Boodt v. Borgess Medical Center, __ Mich. App. __, 2006 WL 3085755 (10/31/06) . . . . . 33, 34 Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Carter v. City of Detroit, 408 F.3d 305 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii City of Canton v. Harris, 489 U.S. 378 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii DeMann v. Detroit Osteopathic Hospital, 2001 U.S. Dist. LEXIS 19260 (W.D. Mich. 2001) . 30 Estelle v. Gamble, 501 U.S. 294 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Derfiny v. Bouchard, 128 F. Supp. 2d. 450 (E.D. Mich. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Farmer v. Brennan, 511 U.S. 825 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, 24 Horton v. Potter, 369 F.3d 906 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Johnson v. Karnes, 398 F.3d 868 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Judd v. Heartland Health Care Center, 2001 U.S. Dist. LEXIS 21747 (E.D. Mich. 2001) . . . . 30 Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Nippa v. Botsford Gen. Hospital, 251 Mich. App. 664 (2002), 257 Mich. App. 387 (2003) . . . 30 Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Roberts v. Atkins, 470 Mich. 679, 691 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34-36 Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002) . . . . . . . . 19 Vandenberg v. Vandenberg, 231 Mich. App. 497 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 35 Zemaitis v. Spectrum Health, 2006 WL 890064 (4/6/06), leave den., 723 NW2d 830 (2006) . 35
iv

Proceedings to Date The plaintiff filed his notice of intent under the state med-mal statute on April 29, 2003. He filed this action under 42 U.S.C. § 1983 on December 24, 2003, along with the affidavits of merit required for his supplemental state-law claims. Correctional Medical Services, Inc., (CMS) filed a motion to dismiss on February 23, 2004. The Court dismissed the corporate defendant on September 22, 2004, based on Eleventh Amendment immunity. A week later, on September 30, 2004, the plaintiff moved to amend his complaint to add CMS’s Michigan medical director (Dr. Craig Hutchinson) in lieu of the dismissed corporate defendant. The Court granted that motion on October 20, 2004. The plaintiff filed his amended complaint on December 8, 2004. As to the defendants bringing this motion, the amended complaint was the same as the original complaint, except that Dr. Hutchinson’s name replaced “CMS” throughout the document. The pendent state-law claim for medical malpractice against the CMS contract physician (Dr. Bency Mathai) did not change at all. The defendants answered on December 29, 2004. The answer included a notice that the defense would continue to rely on the affidavits of merit (that had previously been filed) as to the state-law med-mal claim. Discovery then ensued. The parties took advantage of discovery to depose each other’s experts at length, including in-depth cross-examination regarding both sides’ affidavits of merit as to the med-mal issues. Following discovery, in September 2006, the plaintiff stipulated to the dismissal of one of the CMS contract physicians (Dr. Audberto Antonini). With all discovery concluded, on November 30, 2006, the defendants Hutchinson and Mathai moved for summary judgment. Mr. Broder now files this timely response.
1

Statement of Facts The relevant facts are set forth in detail in paragraphs 4-65 of the plaintiff’s experts’ reports, attached as Exhibits 1 and 2 to this brief. Because the core issue on summary judgment is whether or not the facts – taken in the light most favorable to the plaintiff – are sufficient for a reasonable jury to find in Mr. Broder’s favor, instead of duplicating the facts here, the plaintiff will incorporate them into his argument. See Argument, Part I, below.
ARGUMENT Introduction This case involves a failure of medical care – namely the late diagnosis and late treatment of throat cancer – by the patient’s primary care physician (PCP) and the prison medical system.1 The PCP, Dr. Bency Mathai, admits that as of 8/20/01 she suspected that Mr. Broder had cancer. The plaintiff’s experts say that a reasonable internist would have tested for cancer within weeks. Although his cancer would have been detectable and could have been confirmed by tests at that time, she failed to get a confirmed diagnosis of throat cancer until five months later, and failed to start any treatment until almost eight months later. As a result, Mr. Broder spent months of constant pain and anxiety, had to undergo more invasive treatment, and suffered permanent harm as a result of the more invasive treatment. He also has a much lower chance for survival if his cancer recurs. Mr. Broder alleges that the failure of care was the fault of the PCP who failed to coordinate and to monitor his care, as well as the fault of the MDOC-CMS system, which all but guaranteed the late diagnosis and treatment. The plaintiff’s claims are narrowly drawn and straightforward. As to the PCP, Mr. Bro-
1 To distinguish the two defendants bringing this motion from the state employee defendants who will be bringing a separate motion, the plaintiff will refer to these two defendants as “the CMS defendants.”
2

der says that Dr. Mathai’s failure to ensure timely diagnosis and treatment violated the Eighth Amendment and the medical malpractice act, thus giving rise both to a constitutional claim under 42 U.S.C. § 1983 and to a state-law tort claim for medical malpractice.2 Dr. Mathai, as the primary care physician, was the only hands-on doctor in a position to coordinate and to monitor Mr. Broder’s care. She is sued for what she did and what she did not do from the summer of 2001 to March 2002.
As to the CMS medical director, Mr. Broder says that Dr. Hutchinson is responsible for the systemic failure of care that proximately caused the delay in diagnosis and treatment of his cancer, giving rise to an Eighth Amendment claim under 42 U.S.C. § 1983. Dr. Hutchinson had no direct contact with Mr. Broder and did not know him. Dr. Hutchinson is sued because he was the medical director of the contract provider of health care services for all Michigan prisoners; at all relevant times he was responsible for the policies and practices governing Mr. Broder’s care.
Neither defendant needed to intend to harm Mr. Broder to be held liable under the Eighth Amendment or the state med-mal law. Nor does Mr. Broder make a respondeat superior claim. Finally, his damage claims are limited to the extra suffering caused by the delay in his diagnosis and treatment, plus some long-term effects also caused by the more invasive treatment.
The defendants’ motion should be granted only if there are no genuine issues of material fact, taking all the evidence in the light most favorable to the plaintiff. Because there are a host of factual questions, and because a reasonable jury could find for Mr. Broder on both his claims, the CMS defendants’ motion for summary judgment should be denied.
2 Following discovery, the plaintiff agrees that his state-law claims for negligence, gross negligence, and willful and wanton misconduct are subsumed under the medical malpractice statute and can be dismissed.
3

I.

THE EIGHTH AMENDMENT AND MED-MAL CLAIMS AGAINST DR. MATHAI

A. The Operative Facts

Prisoner-patients have limited access to health care. They cannot schedule an appoint-

ment or go to the health clinic on their own initiative. As with everything in prison, they must

petition to have their needs met. To see medical staff, they fill out a form (a medical “kite”) or

ask cellblock staff to contact health services on their behalf. Exh. O, at 42; Exh. G, at 23-27, 52,

59. So-called “mid-levels” – nurses, nurse practitioners, and physicians’ assistants – review the

kites and provide much of the care. Exh. H, at 13; Exh. I, at 19. In 2001-02, when Mr. Broder

had cancer, there was just one primary care physician for the c. 1,200 inmates at the Parnall

Correctional Facility. Exh. H, at 15; Exh. I, at 11.

Mr. Broder did not know that he had cancer in the spring of 2001; all he could do was

describe his symptoms. He recalls describing his symptoms to medical staff in April of 2001. Exh. G, at 50, 98, 106, 110. The earliest record in his medical chart of a sore throat is 5/4/01.3

Exh. C, at 19. Mr. Broder’s sore throat did not go away. Although he was given an appointment

to return to the clinic in a month, the return visit was cancelled, and he did not see his doctor

again for 2½ months. Exh. G, at 102; Exh. C, Chart, at 19.

In the meantime, on 7/11/01, at his annual health care screening, he again presented with

throat-related problems – ongoing sinus issues and a cough lasting more than three weeks. Exh.

C, at 18. He was also worried about the fact that he was losing weight, which is reflected in the

annual screening sheet. Exh. C, at 18; Exh. D, at 3. He was not referred to a physician. He

3 Throughout their brief, the defense presumes that the only evidence in the case is what appears in the medical chart. That is, they assume that everything the patient said or did was written down accurately and completely, and that if a statement or event was not written down, then it was not said or did not occur. For purposes of their motion, however, the Court must consider all the evidence, presented by both sides, and not just the medical chart.
4

continued to try (without success) to schedule a physician visit by filing kites, but the visits either were not scheduled or were cancelled. Exh. G, at 101-02; Exh. E, Letter of 8/18/01; Exh. C, at 17 (visit 8/3/01 cancelled).
On 8/18/01 he wrote a letter to health services. He described his ongoing problems as: “(1) sinus drainage and sore throat, and (2) the drastic loss of weight. The sinus problem started in about March and has not gotten any better. In fact, now it is becoming hard to swallow.” Exh. E, Letter 8/18/01. He finally saw Dr. Mathai (for the first time since 5/4/01) on 8/20/01. Regardless of whether or not a reasonable internist should have recognized that Mr. Broder might have cancer on that date, the question is moot because Dr. Mathai says that she did. Exh. H, at 48-49. She says that she was concerned about his weight loss and that she wanted to rule out prostate problems, colon or lung cancer. Id. She therefore did a prostate exam and ordered a chest x-ray. Id., Exh. C, at 17.
But she did not enter her suspicions into the file. As a result, no one looking at the file would know why she did the prostate exam (which could have been a routine age-related exam) or why she ordered the chest x-ray (which could have been due to his elevated white blood cell [WBC] count). Exh. C, at 17. Moreover, she either did not fill out the form for the chest x-ray (no form was produced in discovery), or, if she filled out the form, she did not ensure that the test occurred. In fact, she admitted that in 2001 her only system for checking to see if such a test had occurred was to look at the chart at the next scheduled visit. Exh. H at 81, 86.
But Dr. Mathai did not schedule the next visit for 60 days. Exh. C, at 17. Thus, if the lung cancer screen (the chest x-ray) were not performed for any reason, she would not catch the failure, and could not begin the process of getting the test re-scheduled, for at least 60 days. Exh. H, at 81; Exh. J, at 9; Exh. O, at 41. And if someone else happened to be on duty at that return
5

visit, by looking at the file, the substituting doctor would not be able to discern that Dr. Mathai had done the prostate exam or had ordered the chest x-ray to screen for cancer, because there was no such chart entry. Exh. C, at 17.
A reasonable jury could find either (1) that Dr. Mathai did not suspect cancer and lied in her deposition to cover up her mistake – when in fact she only did a routine prostate exam and only ordered the chest x-ray because of Mr. Broder’s high WBC count, or (2) that if Dr. Mathai suspected cancer, her failure to chart her suspicions, and her failure to procure the chest x-ray, and her failure to discover that the chest x-ray was never performed, and her failure to have a process in place to catch such a mistake if it occurred, all evidence deliberate indifference under the Eighth Amendment and/or medical negligence under state law.
Dr. Mathai also had reason from the medical file to be concerned about the weight loss. Mr. Broder’s weight at his annual health screening on 7/11/01 was 156. At that time he told the nurse that he had been on the (lower calorie or less appetizing) kosher diet line, but that he had gone back to the regular diet line and had put on 8 pounds in two weeks. Exh. C, at 18. He was thus off the kosher diet and back on the regular diet by no later than 6/28/01. When he saw Dr. Mathai on 8/20/01, he had been off the problematic diet for almost eight weeks. Nevertheless, his weight had dropped six more pounds, to 150. Exh. C, at 17. Accordingly:
Q. If [Mr. Broder] complained of continued weight loss as of the end of August, we could not attribute it to the kosher diet line, based on what’s in the chart?
A. I would agree. Exh. O, Defense Expert Norman, at 30-31; Exh. M, at 102 (weight loss remained “unexplained” based on the medical record). Dr. Mathai never observed (or never charted) that Mr. Broder was still losing weight despite having been back on the regular diet for nearly two months. Exh. C.
The plaintiff’s experts say that by 8/20/01 Dr. Mathai had ample information in the file
6

(and from the patient) to suspect throat cancer (in addition to prostate/colon or lung cancer) and
to test for it. Exh. M, at 39-40; Exhs. 1 & 2, ¶¶ 61-70. She claims that she was unaware at that
point that he was having difficulty swallowing, a key indicator of throat cancer. Exh. H, at 68;
Exh. C, at 17. The evidence, however, shows that Mr. Broder had described in detail his sore
throat since the spring, his weight loss, his increasing pain, and his difficulty in swallowing, in
his letter dated 8/18/01. Exh. E. A reasonable jury could find that a patient who took the time to
write down his symptoms two days before a visit to his PCP would describe those symptoms to
her – as he says he did, see Exh. G, at 100, 110-11 – despite the incomplete entry in the medical record. 4
More importantly, on 8/31/01 – 11 days after his visit with Dr. Mathai – Mr. Broder sent
a follow-up kite to health services. In it he said, “An existing problem with throat pain remains.
... This problem has existed since approximately March. ... Since this time it has become difficult
and painful to swallow.” Exh. E, 8/31/01 Kite. We know that the kite was received and logged
in by health services. Id. The defendant’s expert on prison medical care testified that when the
information in the kite is important to a diagnosis, it must be added to the patient’s medical record. Exh. 0, at 44-45. It was not. Exh. C.5
4 Defendants’ counsel made this point at Mr. Broder’s deposition – that having written down his symptoms on a certain day, it would only be logical that he would report those same symptoms to his PCP at his next visit. Exh. G, at 111-12. 5 On 8/31/01, Mr. Broder also prepared a formal grievance describing the same symptoms. He wrote, “This throat problem should have been corrected by this time and I should not have been subjected to intolerable pain, especially when weight loss and [a] high-blood pressure problem has also arisen during the same time frame.” Mr. Broder believes that he filed the grievance, though it was never answered – not an uncommon occurrence. Exh. G, at 74-77. Also, in a grievance he filed on 11/3/01, he noted that an earlier grievance “was either misplaced or lost, as I have not received any receipt or response.” Exh. E, 11/3/01 Grievance. In any event, none of the contents of any of Mr. Broder’s written complaints – his letter of 8/18/01, or his grievance of 8/31/01, or his kite of 8/31/01 – ever made it in to his medical file. If his doctor did not know that he was having difficulty swallowing, it was not for Mr. Broder’s lack of trying to tell her. Id.
7

Furthermore, in late August and early September 2001, Mr. Broder came in to the clinic almost daily for a series of blood-pressure checks. For those visits the nursing notes show steady complaints and/or assessments of ongoing throat problems. Exh. C, at 15-16.
Accordingly, based on what Mr. Broder says he told his doctor, and based on the letter he wrote on 8/18/01, the kite he submitted on 8/31/01, the grievance of 8/31/01 (see n. 5), and the follow-up clinic visits, a reasonable jury could find that Dr. Mathai had all the information she needed to make a differential diagnosis of throat cancer and to screen for it. Yet she failed to include throat cancer as a differential diagnosis; she failed to get the chest x-ray to screen for lung cancer; and she failed to chart her suspicions of cancer at all. Even after Mr. Broder’s kite of 8/31/01and his unabated throat problems in early September, Dr. Mathai still did not screen for throat cancer. Exh. C. Reviewing his chart on 9/11/01, she failed to note that his chest x-ray had never been scheduled or performed, and she ordered no other tests to rule out cancer. Nor did she take further steps to monitor his weight. Id.
On 9/23/01, Mr. Broder wrote directly to Dr. George Pramstaller, the chief medical officer for the Michigan Department of Corrections (MDOC). Mr. Broder said,
In approximately March of this year, during a scheduled visit at health care I had appraised [sic] the doctor of sinus problems and a problem with a sore throat. The sinus problem was corrected, however, the throat pain and soreness has increased. In July during my annual health screening, once again, health care was appraised [sic] of the difficulty in swallowing and the drastic loss of weight. Blood tests were taken, along with bi-weekly blood pressure checks. The throat pain remains, as does the difficulty swallowing. Letter 9/23/01, Exh. E. This information, too, never made it into Mr. Broder’s file. Exh. C. Luckily for Mr. Broder, on 10/12/01, Dr. Audberto Antonini, a visiting physician from another facility, filled in for Dr. Mathai, who was on vacation. Dr. Antonini did a thorough history and noted Mr. Broder’s “weight loss of 20 pounds [and] progressive dysphagia since April,
8

sore throat and hoarseness, ... and general malaise.” Dr. Antonini immediately suspected stomach or throat cancer. Exh. C, at 13-14. That very day Dr. Antonino filled out two referral forms requesting approval for specialty care with both ear-nose-throat (ENT) and gastro-intestinal (GI) specialists to rule out throat or stomach cancer. He marked both forms as “urgent” and he faxed them to CMS for approval the same day. Exh. D, at 10-11. He also requested another blood panel “in 2 weeks” as well as diagnostic tests, including a barium swallow and a chest x-ray. Exh. D, Physician’s Orders, at 9 & 10.
Dr. Antonini said that when he wrote “urgent” on the referral forms on 10/12/01 he “was expecting all this to happen within a month, everything.” That is, Dr. Antonini expected to get an answer – a yes or no on the cancer diagnosis – within 30 days. Antonini Dep., Exh. J at 21. Dr. Antonini said that 30 days was a reasonable time to get a confirmed diagnosis. Id., at 22. But far from having a diagnosis within 30 days, the ENT specialty care consult was not even scheduled for 30 days, and the GI consult was not scheduled for 37 days.6 Because Dr. Antonini was only filling in for Dr. Mathai for one day, however, the duty to follow-up with Mr. Broder’s care reverted to Dr. Mathai. Exh. J, at 7-10, 12. As the defense appears to concede, it was she who had to make sure that the “urgent” consults and diagnostic tests were timely completed. See Defense Counsel’s Questions, Exh. G, at 93-94; see also Antonini Dep., Exh. J, at 32-35.
On 11/1/01, Dr. Mathai reviewed Mr. Broder’s chart. All that she wrote was that he was “currently being evaluated for weight loss.” Exh. C, at 12. From this entry, it appears that she was yet unaware that Dr. Antonini had suspected throat or stomach cancer on 10/12/01 and had
6 As to the diagnostic tests, one of them – the barium swallow – was scheduled for 10/19/01, but was postponed to 10/31/01. It was not performed on that date because of equipment failures or supply shortages at the facility. Exh. E, Grievance 11/3/01.
9

made urgent referrals for both.7 A reasonable jury could find that as of 11/1/01, Dr. Mathai did not know that Mr. Broder was being evaluated for cancer, because she only looked at the chart in a cursory way. A reasonable jury could find that a doctor who knew that her patient had been “urgently” referred to specialists for testing for throat or stomach cancer would not refer to the problem as “currently being evaluated for weight loss” and would not list her sole follow-up task as repeating the routine lab work for the (unrelated) elevated white blood count. Exh. C, at 12.
There is no indication in the medical chart that Dr. Mathai took any concrete steps to speed the processing of the urgent ENT/GI specialty care visits or the diagnostic tests that had been ordered by Dr. Antonini almost three weeks before, even though the referral form indicates that as of 11/1/01 CMS had not yet approved the ENT referral. Exh. D, at 14. She again missed the fact that the chest x-ray she had ordered six weeks earlier had not yet been scheduled, let alone performed. Exh. C, at 12.
On 11/3/01 Mr. Broder filed another grievance because neither the ENT/GI visits nor the tests had taken place. He wrote, “I have lost an additional 10 pounds (approximate) and have continual excruciating pain.” Exh. E, Grievance. The information in his 11/3/01 grievance was not entered into his medical file; he also noted that his earlier grievance (probably the one dated 8/31/01) and his letter to Dr. Pramstaller (of 9/23/01) still had not been answered. Id.
On 11/6/01 the barium swallow and chest x-ray (ordered by Dr. Antonini) were done and were negative for stomach or lung cancer, but an EGD test still needed to be done to rule out the stomach cancer. On 11/13/06, Mr. Broder finally saw an ENT, who found lesions on both vocal
7 Dr. Antonini’s chart entry of 10/12/01 highlighted “weight loss” on the first page, which appeared to end at the bottom of the page. To see his differential diagnosis of throat or stomach cancer, a reviewing physician would have to flip back two pages, or would have to look beyond the chart to the physician’s orders and the referral and testing forms. Exh. C, at 13-14.
10

cords. Exh. D, at 15. The ENT filled out a form for biopsy surgery at Foote Hospital to be done “within 2-3 weeks.” Exh. D, at 16. On 11/16/01, Dr. Mathai reviewed and signed more blood results showing a high WBC count, but she took no steps to ensure that the biopsy surgery was in fact scheduled within the 2-3 weeks, as ordered by the ENT. Exh. D, at 17; Exh. C, at 10-11.
To the contrary, although Dr. Mathai signed the ENT’s request for biopsy on 11/14/01 (the day after he wrote it), and she approved his dictation on 11/20/01, Exh. D, at 15, she did not fax the form to CMS for approval until 11/26/01 – two weeks in to the 2-3 week period for the biopsy to be performed. Exh. D., at 16. In her 11/26 and 11/28/01 chart notes, she wrote only that Mr. Broder was “being evaluated for GI cancer” and that he will be undergoing an EGD. At this point, it was two weeks beyond the 30 days by which Dr. Antonini had expected test results (in the form of a confirmed diagnosis). She noted only that the ENT requests were “pending,” and set Mr. Broder’s next appointment for 30 days out. Exh. C, at 9.
Three days later, on 11/29/01, Dr. Mathai filled out an “Offsite Specialty 30 Day FollowUp Form” for the diagnostic tests that had not yet taken place. She checked the box on the form that said it would be appropriate to await completion of the offsite procedures. Exh. D, at 21. By not scheduling an interim visit, she guaranteed that no one would look at the patient’s file again for another 30 days. Mathai Dep., Exh. H at 81, 86; Norman Dep., Exh. O at 41. Dr. Mathai testified that Mr. Broder needed to be seen within 2-3 weeks of 11/13/01 and that she would not have filled out the form if she had known that the throat biopsy surgery was not going to be scheduled until “way out in January.” Mathai Dep., Exh. H, at 90.
CMS did not approve the biopsy until 12/5/01 – beyond the 2-3 week deadline for test results – and did not schedule the surgery until 1/11/02. Exh D, at 22. But because Dr. Mathai had already filled out the 30-day extension form, and because she had not scheduled an interim
11

follow-up visit to get the case back on her docket, she could not and did not know of the delay. Indeed, she did not see Mr. Broder again until 1/2/02. From 10/12/01 to 1/11/02, there is nothing in the medical record to indicate that Dr. Mathai ever did anything with CMS or with the specialists to speed up the appointments or to get timely test results. Exh. C.
On 12/6/01, Dr. Pramstaller answered Mr. Broder’s letter of 9/23/01, about the delays in his diagnosis and treatment. Dr. Pramstaller wrote, “Further diagnostic studies have been considered and staff have taken appropriate steps in that regard…. [Health staff] are following your case closely.” Exh. E, Letter 12/6/01. Dr. Pramstaller said that if he had known that tests to rule out cancer should have been completed weeks before his reply, he would have written a different letter. Exh. F, at 73.
Dr. Mathai did not examine Mr. Broder in December and there are no notes in the chart showing she checked on the outstanding tests. Exh. C, at 9. On 12/10/01she did review another lab report about his high WBC. Exh. D, at 23. On 12/12/01, a nurse interviewed Mr. Broder in answer to his 11/3/01 grievance. He told the nurse that his cancer tests had not yet been done (even though Dr. Antonini had wanted diagnostic results by 11/13/01 and even though the ENT had wanted the biopsy results by 12/4/05). Exh. E, 11/3/01 Grievance Response. Nothing happened. Dr. Mathai did not see Mr. Broder again until 1/2/02, when she approved yet another 30day delay form (Exh. D, 30-Day Form, at 24), despite noting that the EGD test still had not been scheduled. Exh. C, at 9. The throat biopsy surgery was then scheduled for 1/11/02.
To be clear, Dr. Mathai was the only person in a position to coordinate and to monitor Mr. Broder’s care. She missed the differential diagnosis of throat cancer in August, causing a seven-week delay before Dr. Antonini saw Mr. Broder in October. Dr. Antonini ordered the appropriate referrals and diagnostic tests on an urgent basis; he expected a confirmed diagnosis
12

within 30 days – by 11/12/01. Despite the urgent requests, Dr. Mathai took no steps to speed the process, or to monitor it, and a reasonable jury could find that she was unaware for a time that Dr. Antonini had even ordered the tests. Exh. C. Next, when the ENT ordered a biopsy within 2-3 weeks (that is, by 12/3/01 at the outside), Dr. Mathai did not even fax the forms to CMS for two weeks, and then she signed a 30-day form that – combined with her failure to schedule a follow-up patient visit – guaranteed that the case would not come back to her attention until early January 2002. A reasonable jury could find that by these acts and omissions Dr. Mathai violated Mr. Broder’s right to be free from cruel and unusual punishment, and that she committed medical malpractice.
On 1/11/02, Mr. Broder finally had the throat cancer biopsy surgery. Exh. D, at 25, 28-29 (pathology report), & 46 (post-dated operative report). On 1/22/02, the ENT reviewed the results with Mr. Broder and told him that he had cancer. Exh. D, at 30. Thus, although Dr. Mathai had enough information on 8/20/01 to test for throat cancer, it took her 22 weeks to get a confirmed diagnosis. On 1/22/02, the ENT submitted an “urgent” referral stating, “Needs ASAP referral to radiation oncology at Foote [Hospital in Jackson] for [cancer of the larynx.]” Exh. D, at 31. The paperwork shows that the ENT did not expect to have any further contact with Mr. Broder until his treatment was concluded; the ENT asked that Mr. Broder return for a follow-up visit after completion of his radiation treatment. Id. As Mr. Broder put it, “He told me ... he’d see me in seven weeks when the ... radiation was done.” Exh. G, at 122.
Despite a barrage of kites, Exh. E, Kites of 1/2801, 2/4/01, 2/25/01,8 & 3/26/02, Mr. Broder’s treatment did not begin for almost 2½ more months. On 1/30/02, Dr. Mathai prescribed
8 In preparing the Appendix, the kite dated 2/25/01 was inadvertently placed in the medical records, see Exh. D, at 51, rather than in Exh. E with the other grievances.
13

Mr. Broder Ultram for his throat pain and Resource for his weight loss. Exh. D, at 35-36. The Ultram was not dispensed because it was an “off-formulary” request and required approval from CMS. Exh. D, Form 122, at 37. Also, not until 1/30/01 – eight days after the ENT had requested the “urgent/ ASAP” radiation treatment – did Dr. Mathai review and sign the ENT’s request form.9 Exh. D, at 34. Dr. Mathai scheduled Mr. Broder for a follow-up appointment with her in three weeks. Exh. C, at 7.
Pursuant to the request, a radiation/oncology consultation was scheduled at Foote Hospital for 2/5/02. Mr. Broder still did not have either the pain medication or the nutritional supplement that Dr. Mathai had prescribed the week before. Exh. E, Kite 2/4/02. On 2/5/02, Mr. Broder saw a radiation oncologist (Dr. Hayman) at Foote who filled out a form for radiation therapy, and who requested a follow-up appointment in 1-2 weeks. Exh. D, at 42-44; Form 409, at 45. The doctor’s expectation was that treatment would begin within the 1-2 weeks. Hayman Dep., Exh. K, at 15-16, 30.
From this point, Mr. Broder became “lost to follow-up.” Exh. D, Patient History, at 86. On 2/8/02, Dr. Mathai reviewed the form request for radiation. Exh. D, at 45. CMS approved the form on 2/12/02. Exh. D, at 48. For unexplained reasons, no date was initially set for the radiation oncology appointment. Dr. Mathai did not follow up to make sure that the form was timely sent, or that it was timely processed, or that the treatment started within the deadline set by the radiation oncologist. (CMS/patient services later scheduled the radiation targeting for 3/12/02, and the start of radiation for 3/19/02 – way beyond the 1-2 week time-frame of the re-
9 The record reflects that Dr. Mathai called patient services to ask them to schedule the radiation planning appointment for “this week.” The phone call is the only time Mr. Broder’s medical file reflects Dr. Mathai taking any direct action to expedite his treatment. Exh. C, at 7. It also shows that when a PCP took direct action, a PCP could get results: the appointment was scheduled that week.
14

questing doctor.) Exh. D, at 48. Dr. Mathai did not sign off on Dr. Hayman’s dictation from 2/5/05 until 2/28/05 – long after the 1-2 week start-time for the radiation simulation appointment had passed.
On 2/13/06, the Foote Hospital oncologists submitted a form for a CT scan, to stage the cancer and to do the radiation targeting. Exh. D, at 49. The scan was apparently never approved by CMS. On 2/22/02, Dr. Mathai saw Mr. Broder. She noted in the progress notes that she did not have his chart. Exh. C, at 6.10 At that point she took no action to confirm that Mr. Broder’s targeting or treatment appointments had been scheduled or that the necessary forms had been approved. Dr. Mathai told Mr. Broder to return in three weeks and instructed him to file a kite if his treatment did not begin on 2/25/02. On 2/25 he submitted a kite. The nurse who reviewed the kite replied, “Radiation to start next week.” Exh. D, Kite 2/25/01, at 51. The radiation was not scheduled to start the next week; it did not start for more than a month. As one doctor put it, “He became rather lost to follow-up after 2/5/02 when he was seen in Radiation Therapy and it was recommended that he start treatment.” Exh. D, at 86. Another wrote, “Transportation difficulties caused him to miss his radiation follow-up, ENT follow-up, and his scheduled CAT scan.” Exh. D, at 90.
Dr. Mathai went on maternity leave on 3/8/02. There is no indication that she took any steps to make sure that Mr. Broder’s “urgent” treatment either had begun or was about to begin before she left. To that point, by her own admission, she had suspected that he had cancer for nearly seven months. It had taken five months for her to get a diagnosis, and in the 6½ weeks
10 The defendants imply that it was Mr. Broder’s fault that his chart was “out for FOIA” copying in February 2002. Defendants’ Brief, at 8. By that date prisoners were barred from using the state Freedom of Information Act, but a request had been made on his behalf. What is apparent is that there was no policy in place to make sure either: (1) that a medical file was not sent out at a critical time in the management of a patient’s care; or (2) that a second copy of the essential information was available for emergencies.
15

since Mr. Broder still had not completed the pre-treatment protocols. Exh. D, at 55. After Dr. Mathai went on maternity leave on 3/8/02, things finally sped up slightly. On
that day a Foote radiation oncologist again requested a CT scan, marked “Urgent.” Exh. D, Form 407 (Clark), at 55. This was the same test that Dr. Tsien had requested on 2/13, marked “ASAP” on the form, yet it had never been authorized. On 3/12/02, Mr. Broder went to Foote for his radiation simulation/treatment planning. At that point, it appears that CMS still had not approved the requests for a CT scan, but the Foote doctors simply ignored the lack of authorization and performed the scan anyway. (The CT scan request was approved retroactively by CMS the next day. Exh. D, Form 409, at 64; Exh. D, Simulation Notes, at 55.) The CT scan showed that Mr. Broder’s cancer had spread to the epiglottis and was probably now Stage III. Exh. D, Scan Results, at 61-62. On 3/18/02, the Foote doctors requested an MRI – marked “URGENT-ASAP Please” and “STAT” – to determine more precisely the extent of the cancer and to get better pictures for the radiation targeting. Exh. D, Form 409, at 67-68. On 3/21/02, Dr. _____ Bey – Dr. Mathai’s replacement as the primary care physician in the facility – signed off the urgent MRI request, filled out the corresponding Form 407, and faxed them to CMS. Exh. D, Form 407, at 69. CMS approved it and the appointment was set for 3/27/02. Exh. D, at 71.
From 3/25/02 to 4/1/02, the Foote doctors requested several more authorizations for service. Exh. D, at 74-76, 79-80. The chemotherapist was concerned that Mr. Broder’s throat was closing to the point where he could not breathe. Exh. D, at 77.11 The MRI, done on 3/27/02, confirmed Stage III cancer. Exh. D, MRI Results, at 81-82. Stage III cancer requires chemother-
11 The transcript reads, “I am not concerned about his airway,” but the chemotherapist testified: “I think that’s a typographical error. I was – it should be, I am now concerned about his airway. I did take steps to contact the ear, nose and throat surgeon to ... verify that the airway was intact.” Axelson Deposition, at 16 (not attached as an exhibit).
16

apy as well as radiation. One oncologist wrote, “I am somewhat concerned about ... the duration of this work-up in view of the natural history of the disease….” Exh. D, at 83. Dr. Tsien noted that “numerous attempts were made to expedite his CT treatment planning scan.” Exh. D, Interval Note, at 84. To sum up, even when all the players were aware that Mr. Broder had fallen through the cracks and his treatment had been inexplicably delayed, and even with Dr. Mathai out of the picture, it still took from 3/8/02 to 4/2/02 for his treatment to actually begin.
On April 2, 2002, Mr. Broder was admitted to Foote Hospital for chemotherapy and radiation treatment. Due to the need for chemotherapy, Mr. Broder was surgically fitted with a PEG tube to his stomach, to allow direct nutrition while bypassing the throat. Exh. D, at 85. The PEG tube site later became infected. Exh. D, at 88. Beginning April 2-3, 2002, Mr. Broder received seven weeks of radiation, and three rounds of chemotherapy.
Because of the delays, Mr. Broder suffered months of unnecessary pain and anxiety. His experts say his cancer went from Stage I to Stage III, requiring more invasive treatment. Exhs. 1 & 2; Exh. N, at 71-73. As a result, he suffered the effects of the treatment itself, as well as permanent dry-mouth, injury to his larynx, chronic hoarseness and weak voice, intermittent severe throat pain, dental problems related to his reduced salivation, and a much higher risk of death if his cancer recurs. Exhs. 1 & 2; Exh. N at 85-88; Exh. G, at 129, 136-41. At present he appears to be free of cancer.
B. Applying Eighth Amendment Law to the Facts as to Dr. Mathai At bottom, the defense argues that Dr. Mathai did nothing wrong because she filled out the appropriate forms.12 But a PCP’s duty is not to fill out forms, but to ensure timely diagnosis
12 Mr. Broder disputes even this, as often the forms were filled out late, or were forwarded to CMS late, or were approved late, or were not filled out and sent at all, with no follow-up by Dr. Mathai.
17

and treatment of her patient. Exh. M, at 66. As the plaintiff’s expert put it, “... [S]he signed the

forms, and yet the work-up was proceeding at a snail’s pace.” Everything was “way too slow.”

Exh. M, at 54, 18. Given the system of patient care at the Parnell Facility in 2001-02 , a reason-

able jury could find that only the PCP was in a position to coordinate and monitor Mr. Broder’s

care. In the end, the buck stops with the primary care physician, who has the primary responsi-

bility, as even the defense witnesses acknowledge:

Q. What I’m asking is, it remains the primary care physician’s responsibility to make sure

that the consult occurs within the period of time that ... is appropriate for the case that’s

needed?

A. Or to – or to get an answer – or to be aware of why it is not happening.

*

*

*

*

*

*

Q. And I take it from that, that if the period of time for the scheduling exceeds what either

the [PCP] thought was appropriate or what the specialist wrote was appropriate, then it

remains incumbent on the [PCP] to find out why there’s a delay?

A. Yes.

Exh. O, Defense Exp. Norman Dep., at 66; Exh. F, Defendant Pramstaller Dep., at 15. See also

Exh. M, at 54. In this case, the best thing that Dr. Mathai did for Mr. Broder was (1) to go on

vacation in October 2001, and (2) to go on maternity leave in March 2002. Harsh as it sounds,

only in her absence did Mr. Broder get the medical care he needed.

The controlling law in cases like this one is straightforward. Where a doctor knows the

nature and duration of the plaintiff’s condition, and knows that the plaintiff requires medical at-

tention, and fails to take steps to ensure timely diagnosis and treatment, the Eighth Amendment

standard is met. See e.g., Blackmore v. Kalamazoo County, 390 F.3d 890, 896 (6th Cir. 2004)

(viewing the facts in the light most favorable to the plaintiff, a reasonable jury could conclude

that defendants were aware of facts from which the inference could be drawn that a substantial

risk of serious harm existed and the defendants ignored that risk; defendants had a sufficiently

culpable state of mind to meet the subjective prong of the deliberate indifference test). Black-

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more stands for the further proposition that where the seriousness of a prisoner’s need for medical care is obvious, the constitutional violation is not premised upon the detrimental effect of the delay, but rather that the delay alone creates a substantial risk of serious harm. Id. at 899. Here the delay caused months of unnecessary pain and fear, more invasive treatment, and permanent harm. Exh. N, at 85-88; Exh. G, at 129, 136-41. See also Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991) (having to endure physical pain and mental anguish during the time of delayed care constitutes cruel and unusual punishment within the meaning of the Eighth Amendment); Parrish v. Johnson, 800 F.2d 600, 610 (6th Cir. 1986) (actual injury is not a necessary predicate to damages for an Eighth Amendment violation).
Moreover, an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002). A reasonable jury can conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Id. at 843. It is hard to imagine a patient with a more obvious risk than Mr. Broder – a patient whose own doctor says that she thought he had cancer on 8/20/01, but who failed to get a confirmed diagnosis for five months, and failed to start treatment for 7½ months. Where the need for medical care is obvious, care which is so cursory as to amount to no treatment at all amounts to deliberate indifference. Id. at 843-44, citing Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989).
Here, both the subjective and objective parts of deliberate indifference have been met. To satisfy the subjective component of the adequate medical care test, an inmate must demonstrate that the official in question subjectively perceived a risk of harm and then disregarded it. John-
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son v. Karnes, 398 F.3d 868, 875 (6th Cir. 2005). Here we know Dr. Mathai thought that her pa-
tient had cancer but did not get him timely diagnosed or treated. Even using the objective stan-
dard, a genuine issue of material fact as to deliberate indifference can be based on a strong show-
ing that the need for care was objectively obvious. See Carter v. City of Detroit, 408 F.3d 305,
313 (6th Cir. 2005).
C. Applying State Med-Mal Law to the Facts as to Dr. Mathai Given that Dr. Mathai’s acts or omissions rose to the level of deliberate indifference, they
necessarily include negligence. The plaintiff’s expert could not be clearer that Dr. Mathai failed
to meet the requisite standard of care. “She missed the diagnosis [in August]. ... Once [cancer]
was suspected, she did nothing to facilitate Mr. Broder’s getting care in a timely manner.” Exh.
M, at 39. The parties agree that the standard of care is the same for those in prison as for those
on the outside. Exh. O, Def. Expert Norman Dep., at 100-01. Even the defense experts agree
that the delays in each phase of Mr. Broder’s case were outside of acceptable bounds. As to Dr.
Mathai’s 8/20/01 suspicions of cancer, Dr. Norman testified:
Q. My question is, assuming [Dr. Mathai] was concerned that [Mr. Broder] might have cancer. And at this point she identifies in her mind two kinds of cancer that could cause the symptoms that have been reported, how soon should she have an answer as to whether or the [Mr. Broder] has cancer to be within the standard of care?
A. I would say certainly within a matter of days you would expect, just because of the nature of the procedure. It’s not that complicated to do.
Exh. O, at 37-38. Dr. Pramstaller, the MDOC chief medical officer, said:
Q. Taking her at her word, and assuming that she ... did the ... chest x-ray because she suspected that [Mr. Broder] might have cancer, ... how long is an appropriate amount of time in your view for this patient to have a result back on the chest x-ray, so that we can rule in or rule out lung cancer?
A. Two or three weeks.
Exh. F, at 36. Dr. Pramstaller also agreed that the responsibility remained with Dr. Mathai:
20

Q. Is it fair to say that it’s the assigned doctor’s [PCP’s] job to make sure that patient gets the treatment that the patient needs? [Objection omitted.]
A. I believe so, yes.
Id., at 15.
As to the tests that Dr. Antonini ordered on 10/12/01 (expecting a confirmed diagnosis
within 30 days), and that became Dr. Mathai’s duty to follow up on as the PCP, defense expert
Norman agreed that the results should have been available “within weeks.” Exh. O, at 50-51.
Q. When you say weeks instead of months, does that mean ... four weeks or less, so that we’re using weeks instead of months?
A. I would say four to six weeks.
Id., at 52. Dr. Pramstaller concurred:
Q. I’m not asking about having someone look at him, I’m asking how long should you wait from October 12th to know whether he has cancer or not? What seems to you like the outside margin? At this point you’ve agreed [from Mr. Broder’s letter to you of 9/23/01], and Antonini has agreed in a much more vehement way two-and-a-half weeks later, laryngeal cancer is a real possibility here. So by when do we need to know whether he has it or not?
A. I would say that the longest I would be comfortable with would be eight weeks.
Exh. F, at 53. From that point it was 13-14 weeks (mid-January) before there was a diagnosis.
Regarding Dr. Kornak’s request on 11/13/01 for biopsy surgery within 2-3 weeks, we
know that surgery did not occur for two months. Dr. Pramstaller addressed exactly this point:
Q. ... you told me before that, in the end, the primary care physician has the responsibility for making sure that the care happens, and here we’ve got a specialist saying I want this operation concluded at the end of three weeks, and we know the scheduling isn’t even going to be requested until after that time has run. I want to know, how does the primary care physician monitor this to make sure that now it happens and it happens fast?
A. Well, she could monitor it through a tickler file that they keep themselves of patients they want to follow up on, or they can just walk into the other room where the CMS coordinator is and take a look at the off-site specialty book which should give you up-to-date information on that.
Q. So either of these were available to Dr. Mathai to do? A. That’s correct.
21

Exh. F, at 65. Instead Dr. Mathai signed a form that allowed the case not to come back to her

attention for more than 30 days:

A. Her signing the [30-day] form, as I currently understand it and as it has been stated, moves the diagnostic procedures well past the time window recommended by the [ENT], so she could not do so without consulting with the sub-specialist.

Williams Dep., Exh. M, at 96 (emphasis added). Doing so is “outside the standard of care.” Id.

The MDOC medical director appeared to agree. Dr. Pramstaller testified:

Q. Is it appropriate at this point for her to sign a 30-day deferral form? [Objections omitted.]

A. If I was reviewing this case, I would have questions as to whether or not it was appropri-

ate, and I would probably talk to her.

*

*

*

*

*

*

Q. If we look at the second [30-day deferral] form, this one is dated January 2, [200]. ... If it

was a problem on November 29th, is it a significantly greater problem on January 2nd?

[Objections omitted.]

A. I would have more concern over it, yes.

Exh. F, at 69.13

Regarding his own audits of primary care physicians, Dr. Pramstaller said he would ask:

A. ... did the primary care doctor, or provider ... do everything that was within their power to see that [care] got expediated [sic]. In other words, did they pick up the phone and call the specialist, did they try to change the appointment ..., did they make an effort to do that.

Exh. F, at 22. The evidence shows that none of these things occurred. The procedures may have

contributed to the lack of care, but in the end the duty was Dr. Mathai’s:

Q. ... you’re saying there is a whole procedure here, and someone is responsible for it taking too long, but the overall time is not necessarily Dr. Mathai, right?
A. I believe the bulk of ... it does fall to the primary care provider, in this case Dr. Mathai.

Exh. M, at 82-83 (emphasis added).

After Mr. Broder’s cancer was diagnosed, Dr. Mathai failed to ensure that his treatment

13 The plaintiff has submitted Dr. Pramstaller’s deposition testimony in its entirety. If the Court is going to read one attachment with care, that is probably the one to read. See Exh. F.
22

went forward in a timely manner. Dr. Hayman said the outside window from diagnosis to treatment should be 4-6 weeks. Exh. K, at 40. Dr. Pramstaller and Dr. Tsien agreed. Exh. F, at 7476, Exh. L, at 48-49. The plaintiff’s experts agree. Exhs. 1 & 2. Yet Mr. Broder went from midJanuary to April 2 before his treatment began, and then it only happened because of the clamoring of the doctors at Foote Hospital. At the least there are genuine issues of material fact, so that summary judgment should not be granted.
II. THE EIGHTH AMENDMENT CLAIM AGAINST DR. HUTCHINSON A. The Evidence from the Record The claim against Dr. Hutchinson is that the procedures at Parnall Correctional Facility in 2001-02 were constitutionally deficient. The record shows that at every phase of the case – over and over again – it was impossible to get urgent care on time. The system required that any outside specialty care – both consultations and tests – had to be procured by (1) filling out the right form, (2) having it sent (typically) to the PCP for her approval, (3) forwarding it to CMS for its approval, (4) having it go to a scheduling unit to arrange for the appointment to be made, and (5) then making sure that the appointment was actually kept. See e.g., Exh. H, at 72-76. Any follow-up care required that the same steps be done again. Exh. Q. And in 2001-02 – according to Dr. Mathai – the physicians and the schedulers never consulted with each other. Exh. H., at 79. What the record in this case amply demonstrates is that forms were not filled out, or if filled out were not timely approved by the PCP, or if approved were not timely forwarded to CMS, or if forwarded were not timely approved by CMS. And even if the forms were approved, the appointments were not timely scheduled (within the limits set by the requesting doctors), and the actual appointments remained subject to cancellation due to transport problems, faulty equipment, etc. Over and over again the record shows that the prison medical system could not pro-
23

vide urgent care within the time-frames of the requesting doctors. To get timely urgent care, the

doctors had to take extra measures (like personally calling the scheduling office), or had to vio-

late protocol (like doing a test without approval and getting it after the fact). Exh. C, at 7. Other-

wise nothing happened.

When nothing happened, there were no procedures in place to catch and/or to correct the

problem. The only “tickler” system was to re-schedule the patient for a clinic visit in 30-60 days.

That meant that the problem typically would not come to the attention of the PCP until the time

for results had long-since passed. It also required (1) that the follow-up appointment not be can-

celed; (2) that the same doctor see the patient; (3) that she have recorded in the file what needed

to be done, so that she (or a replacement doctor) could discover the delay or the lapse; (4) that the

PCP actually review the file at the next appointment in sufficient detail to catch the error, and (5)

having noticed the lapse, that the PCP do something about it other than approving the delay or

awaiting some future scheduling date.

Dr. Hutchinson conceded in his deposition that – absent some other intervention – under

the “next visit” system a PCP would not know until the next visit if a glitch occurred. Exh. I, at

48-49.

Q. In a situation like this where the scheduled appointment is five to six weeks beyond the date that the specialist has requested, what check or system is in place at the facility to catch that?

A. I don’t know what was in place at the facility to monitor that, to question that other than the scheduling of the patient with the primary care provider every thirty days while awaiting the delivery of the specialty service.

*

*

*

*

*

*

Q. If she doesn’t come over and he doesn’t see her for thirty more days, isn’t it guaranteed

that if there was a problem that she is not going to know about it until we’re now roughly

four weeks passed the deadline the expert had set?

24

A. Well, that’s the way the system is set up, for every thirty day visits. If she had elected to see him sooner than that she would have had that ability. But the system is set up to bring the patient back every thirty days. It’s a one size fits all thirty days. It’s not varying by the nature of the problem.
Huchinson Dep., Exh. I, at 70, 76-77. In other words, if you need urgent care, you aren’t going to get it, because the system is not designed to vary based on the nature of the problem. Dr. Hutchinson said that he “would not engineer” such a system deliberately to cause delay, id. at 80, but that is exactly what he did.
The defendants try to lay the blame for the delays at the feet of the consulting specialists, but the consistent message from the specialists is that they were powerless to set appointments. They had to submit the appropriate form and rely on the prison system to take it from there. As Dr. Tsien said, “I can’t bring [the prisoner] to my office.” Exh. L, at 19-20. She made it sound like her office noticed that Mr. Broder was late (in February 2002) and immediately began calling the prison to try to get him scheduled, with no result. Id., at 21-23. She was not aware of anyone from the prison side pressing to get the appointment made – she said she had never heard of Dr. Mathai and had never spoken to any prison doctor about scheduling. Id., at 28-30. When asked how the process worked, she answered, “I wish I knew. To this day I don’t know.” Id., at 30. A reasonable jury could conclude that in 2001-02 the system for specialty care scheduling was dysfunctional, and that Dr. Hutchinson knew it and did nothing. That is enough for liability under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Another systemic problem was that none of the written information from the patient was recorded in a way to be of use to the PCP. It is undisputed that none of the contents of Mr. Broder’s health care kites, his letters directly to the health care providers, his grievances, or his letter to Dr. Pramstaller, ever made it into his medical file. The letters to the health care providers and
25

the kites to the nurses are especially egregious because the prisoner-patient has no other way to

communicate. This, too, was a systemic problem, that was the responsibility of Dr. Hutchinson.

Q. When the information in that kite relates to the prisoner’s medical condition, would you

expect the information in the kite to make it into the medical record?

A. Yes.

*

*

*

*

*

Q. And if the information that the patient has written into the request doesn’t make it into the

medical record and it’s important information, in your view, does that indicate some kind

of breakdown in the system? [Objections omitted.]

A. It could indicate a breakdown in the system.

Exh. O, Defense Expert Norman Deposition, at 44-45. No information from Mr. Broder ever

found its way into his file, despite a steady stream of detailed kites, letters, and grievances all

saying the same thing. A reasonable jury could find that the kite system was also dysfunctional.

B. The Sweeton Evidence

The delays in Mr. Broder’s diagnosis and treatment were not aberrations, but were part of

a systemic failure of care with which Dr. Hutchinson was all too well-acquainted. At all relevant

times Mr. Broder was housed at the Parnell Correctional Facility in Jackson. Parnall was one of the facilities covered by the consent judgment in the long-running Hadix litigation.14 Indeed, at

the very time that Mr. Broder’s cancer remained undiagnosed and untreated, the Hadix court was

monitoring the care provided to patients with serious diseases and urgent medical needs at the

Parnall facility. Exh. P, Findings of Fact and Conclusions of Law, (2002), ¶¶ 17, 31, 33. As to

the precise issues presented by this case – timeliness of diagnosis and treatment, system-wide

failures of care and/or supervision, pervasive scheduling delays for urgent care, systematic failure

to coordinate and monitor, etc. – the Hadix court made the following determinations after a hear-

14 For a description of that litigation, see the Hadix court’s recent Findings of Fact and Conclusions of Law (Order of 12/7/06), excerpted as Exh. Q, at 1-5. Upon information and belief, Mr. Broder is a class member in the Hadix case.
26

ing in May 2002, which itself was based on monitoring which occurred in mid-to-late 2001 (the
very time when Mr. Broder’s cancer was going undiagnosed and untreated):15
217. [Prisoners with Urgent and Emergent Symptoms] Based on the number and severity of incidents, their pervasiveness among the health care outcomes examined, and their serious consequences to patients in need of serious medical treatment, the Court finds that the system of access to health care did not provide reliable and timely access to care for prisoners with urgent or emergent symptoms. ...The Court finds that the existing system of access continues to violate ... the Eighth Amendment....
324. [Responses to Kites] Based on these pervasive and serious failures to timely address serious medical needs, the Court finds that the implementation of the access to health care system did not provide reliable access to care for prisoners with urgent or emergent symptoms. ...The Court finds that the existing system of access continues to violate ... the Eighth Amendment....
356. [Harm from Failures of the Health Care Access System] The failures of the health care access system have caused prisoners serious harm and inflicted unnecessary pain, suffering and loss of function.
370. In [the sample cases] and many other cases the failure to provide timely treatment created a serious and obvious risk of harm to the prisoner.
371. The Court finds that the existing system of access and its implementation continues to violate ... the Eighth Amendment....
473. [Chronic Disease: Harm to Patients from Medication Interruption] Based on the pervasiveness of [sample] incidents involving serious and preventable health consequences and unnecessary pain, the Court finds that the medical treatment for prisoners with chronic diseases continues to violate ... the Eighth Amendment....
475. [Clinical Practice: General Issues] According to Defendants’ own internal audit, during the period from October 2001 through January 2002, the performance ratings of the mid-level health staff (nurse practitioners and physicians’ assistants) ranged from a low of forty percent to a high of sixty percent. As a result of this finding, Dr. Pramstaller recommended that CMS be notified that it was in violation of its contract requirements to provide clinical supervision to the mid-level providers.
476. It is Dr. Pramstaller’s opinion that the results of the audit indicate “very poor” perform-
15 For each of the findings and conclusions, the Hadix court recited a long series of factual examples in random cases unearthed by the monitor. The Hadix court based its findings on those recitations. Exh. P, Excerpts.
27

ance by the physician providers in auditing mid-level staff. 618. [Physician Supervision of Health Care: Ensuring Appropriate Levels of Clinical
Performance] The medical staff in place do not reliably perform their duties with an acceptable level of skill and expertise. 701. [Referrals for Specialty Services] MDOC met with CMS and an agreement was reached that if a 10-day requirement exists (i.e., urgent care), the paperwork turnaround must be accomplished in a day. 702. MDOC and CMS recognize that there are some specialty areas as to which appointments are scarce both in the free world and in corrections. [Discussing such scarcity-based delays] ... In those cases, it becomes the primary care physician’s responsibility for determining whether the appointment scheduling is acceptable. (Emphasis added.) The Hadix court’s findings of fact and conclusions of law are powerful evidence in support of Mr. Broder’s claim that the delays in his case were proximately caused by flaws in the health care system. The court was looking at exactly the same policies, procedures, and systems for treating prisoners with serious disease and urgent medical needs that are at issue here. The pattern of delay, failure to monitor, and failure to supervise Mr. Broder’s case is consistent with the pattern revealed in the study of similar cases, conducted at the same time and place, and involving hundreds of similar prisoner-patients. Exh. P. Dr. Hutchinson admits that the system in place then was worse than today, Exh. I, at 63, yet even today, after four more years of work, and after some significant improvements, as to these specific issues the Hadix court still finds the system to be constitutionally deficient. Exh. Q. The Hadix case provides the strongest possible evidence, because it shows that Mr. Broder’s late diagnosis and treatment were not isolated or aberrational events, and that Dr. Hutchinson had detailed knowledge of the system’s shortcomings. One of the chief targets of the Hadix court’s ire has been the policies and procedures governing urgent care in cases like Mr. Broder’s. As the Hadix court aptly said in its recent order (describing the improved version of the same
28

system that was in place in 2002): Both the persuasive testimonies [of the expert monitors] demonstrate clearly and beyond peradventure that the specialty referral process is “profoundly deficient.” [Record citation omitted.] Such care is routinely delayed beyond the time medically necessary. Furthermore, the delays tend to topple one upon the other for patients with regular needs for specialty service (e.g., cancer patients). Such delays cause unnecessary death, illness and extreme suffering. In light of such record, it is clear that injunctive relief is necessary to prevent further irreparable harm to class members.
Exh. Q, ¶ 110, (emphasis added.) In sum, where another federal district court has already concluded that the policies, pro-
cedures, and health care systems in place at Parnall in 2001-02 violated the Eighth Amendment, this Court cannot grant summary judgment on the grounds that there is no genuine issue of material fact that they did not.
III. THE MEDICAL MALPRACTICE PROCEDURAL ISSUES The CMS defendants raise several procedural or technical issues of state law. A close reading of their brief, however, shows that the bulk of the text is boilerplate that – while it may apply in other cases – has little relevance here. Each issue will be addressed briefly below.
A. The Affidavit of Merit and the Amended Complaint The defense first argues that Mr. Broder’s med-mal claim must be dismissed because he failed to file an affidavit of merit with his amended complaint. Defendants’ Brief, at 23-27. Mr. Broder’s original complaint and affidavits of merit could not have been clearer that he intended a medical malpractice claim to run against his PCP for any delays in his diagnosis and treatment attributable to her. See Exh. R, Complaint; Exh. S, Affidavits of Merit. When the Court dismissed CMS as a defendant on Eleventh Amendment grounds, Mr. Broder sought and got leave to amend his complaint to add CMS’s medical director as a named defendant in its
29

stead.16 No other claims or parties were changed. The amended complaint simply inserted Dr. Hutchinson’s name wherever the name CMS, Inc., had appeared in the earlier version – in all other respects it was identical.
Following discovery, the plaintiff agreed to voluntarily dismiss his claims against Dr. Antonini, who plainly was not at fault. Dr. Mathai is now the only treating physician left in the case being sued for medical malpractice. Mr. Broder filed an affidavit of merit in support of his original complaint as to her, and nothing in the amended complaint changed as to her. Indeed, in her answer to the amended complaint, Dr. Mathai adopted the defense affidavits of merit filed in response to the original complaint. Thus, Dr. Mathai and her attorneys clearly knew that she had been sued for medical malpractice, and that the core of Mr. Broder’s claim was her delay in the diagnosis and treatment of his cancer.
The defendants rely on cases that are inapposite. In DeMann v. Detroit Osteopathic Hospital Corp., 2001 U.S. Dist. LEXIS 19260 (W.D. Mich. 2001), and in Judd v. Heartland Heartland Health Care Center, 2001 U.S. Dist. LEXIS 21747 (E.D. Mich. 2001), the plaintiff failed to file an affidavit of merit with his original complaint. The courts said that the plaintiff could not cure the defect by filing the affidavit with the amended complaint. Likewise in Nippa v. Botsford Gen. Hospital, 251 Mich. App. 664 (2002), 257 Mich. App. 387 (2003), the claim was dismissed because the plaintiff never filed an affidavit of merit from an appropriate specialist, as the court found was required under the circumstances. These cases are the reverse of what happened here, where the plaintiff’s affidavit of merit was filed with the original complaint, and where the claim and the defendant did not change in the amended complaint.
16 At the same time, he dropped several doctors whose relationship with the MDOC or CMS had been unclear when he had filed his initial complaint.
30

A much closer case is Derfiny v. Bouchard, 128 F. Supp. 2d. 450 (E.D. Mich. 2001) , remanded on other grounds, 106 Fed.Appx. 929 (6th Cir. 7/6/04). There the plaintiff filed timely affidavits of merit against the doctors, but did not re-file the affidavits when the case was consolidated with a case against the hospital that employed them. The district court denied the hospital’s motion to dismiss, noting that as to the hospital “the medical malpractice claim is based on a theory of vicarious liability arising out of the same acts and omissions” pled in the initial suit. Id., at 452. The court held that where the same lawyers represented both sets of defendants, and where the original affidavits stated that the doctors and the “health facility” had breached the standard of care, and where there was no prejudice to the defendants, dismissal was improper. Derfiny is a much harder case than here, because the affidavit of merit had to run against a new defendant in the consolidated cases, where here it runs against the same doctor (Mathai) as in the initial complaint.17
Citing Vandenberg v. Vandenberg, 231 Mich. App. 497 (1998), the Derfiny court also noted that the purpose of an affidavit of merit “is to deter frivolous malpractice claims.” Id., at 452. The court concluded that where, as here, the defendant and its attorneys already had notice of the plaintiff’s underlying claim, and were in possession of affidavits of merit which substantially complied with the purpose of the statute, and where the claim derived from the same acts and omissions of the same doctors as in the earlier case, the affidavits of merit were sufficient. This Court should do the same thing.
17 Although Mr. Broder’s affidavits of merit address the duties, responsibilities, and standard of care for “a health care provider,” Exh. T, he did not plead vicarious liability as to Dr. Hutchinson (nor did he get an affidavit of merit regarding the duties of a senior health care administrator). Mr. Broder has treated the claim against Dr. Hutchinson as arising only under the Eighth Amendment, for constitutionally deficient policies and practices and/or training and supervision. Accordingly, Dr. Mathai is the only defendant against whom the med-mal claim runs.
31

B. The Specificity of the Notice of Intent The defense complains that the plaintiff’s notice of intent was insufficient for lack of specificity. But the standard for the notice of intent is a lenient one. As the defense notes, all that is required is that the plaintiff make “good faith averments ... consistent with the early notice stage of the proceedings.” Defendants’ Brief, at 28, citing Roberts v. Atkins, 470 Mich. 679, 691 (2004). The expected level of specificity must be considered in light of the fact that discovery has not yet begun. Id. Especially when the plaintiff is a prisoner, he often does not and cannot know with any precision who was responsible for his care. In fact, for security reasons, prisoners are intentionally kept in the dark about their appointments, and often they have no idea who is doing what in relation to their care. Exh. N, at 27. Mr. Broder’s state-law claim was (and is) about as simple as a med-mal claim can be. At bottom, his notice of intent says that his care providers failed to diagnose his cancer, then (when they thought he had cancer) failed to get confirmation for months, then (once he was diagnosed) failed to get him treated for months. Exhs. R and S. This is not rocket science. A quick look at the plaintiff’s notice of intent shows that he fully complied with the statute. See MCL 600.2912b(4). He laid out the factual basis for his claim, describing in some detail the delays in the diagnosis and treatment of his cancer. He stated the outside time frames (from discrete events) beyond which no reasonable doctor could go without being negligent. He made clear that his care providers did not ensure the timely diagnosis and treatment of his cancer, and that this was the basis for his claim. He alleged harm as the proximate result of the delays, including added suffering from the delay itself. Exh. S, at 1-5. Mr. Broder went overboard in making it clear that his notice applied “to the health care professionals, entities, and/or facilities, as well as their employees or agents, actual or ostensible,
32

who were or are involved in [his] treatment” Id., at 6. He listed 15 known individuals (including Drs. Mathai and Hutchinson), as well the MDOC and the corporate provider CMS, Inc., and he asked that the notice be given “to any person (or entity) not specifically named in this notice” who reasonably might be encompassed within claim. Id. (The notice also asked for legible copies of Mr. Broder’s medical file – something he had not been able to procure to that point, with the result that much of the medical data he had – especially who had done what when – remained cryptic.)
Citing Roberts, the defense complains that the notice must identify “a specific standard of care applicable to each of the 17 different persons concerned in the NOI.” But the defendant here is just one person – the primary care physician. Reading the notice of intent, its message to her could not be clearer: that she failed to ensure that Mr. Broder was diagnosed and treated within a reasonable time. The defense wants the Court to read the notice of intent as if Dr. Mathai were unaware that she was the primary care physician responsible for Mr. Broder’s care. Relying on Roberts, the defense tries to complicate matters, and then seeks shelter in the complications of its own making.
Again, a case more on point is Boodt v. Borgess Medical Center, __ Mich. App. __, 2006 WL 3085755 (10/31/06). There, even though the notice of intent did not identify a defendant by name in describing how a certain harm was caused, the court found the notice sufficient, because the defendant would know that he was the person who performed the harm-causing surgery. In the same way, Dr. Mathai knew that she was the only primary care physician responsible for ensuring that Mr. Broder’s cancer was timely diagnosed and treated.
The Boodt court emphasized that the notice of intent must be viewed as a whole, and that no particular format need be followed. To borrow from the text of Boodt, any reader who knew
33

that Dr. Mathai was serving as Mr. Broder’s primary care physician “could not help but become aware of the specific breaches being alleged against” her. Boodt, at *4.
The same is true of the alleged lack of specificity about what Dr. Mathai “should have done” differently. As the Court said in Roberts, if (for example) the notice of intent alleged that a physician amputated the wrong limb, “it would be obvious to the casual observer” that the physician should have amputated the correct limb. Boodt, at *4, quoting Roberts, at n. 12. Once Mr. Broder described the malpractice as the delay in his diagnosis and treatment, then both the breach of duty and the corrective action were obvious – that Dr. Mathai should have coordinated and monitored his care to ensure timely diagnosis and treatment. As the Boord court found, “It strains credibility to conclude that [the defendants] would not understand the nature of the suit against them on the basis of the notice of intent here.” Boodt, at *5. All of the defense arguments about the notice of intent here are of a similar ilk, and the answer to each is the same: it strains credibility to conclude that Dr. Mathai or her attorneys would not understand the nature of the suit against her on the basis of the notice of intent filed by Mr. Broder.18
C. The Affidavit of Merit The defense makes essentially the same argument as to the affidavit of merit, and the argument should fail for the same reasons. Like the notice of intent, the affidavit of merit is also filed before discovery, with the complaint, when information available to the plaintiff is limited.
18 The Boodt court did find the notice of intent deficient as to the hospital, because the notice failed to show how the hospital “had any factual involvement in the underlying events.” If the notice of intent here were arguably deficient in any way, it would be as to Dr. Hutchinson, who was substituted in for CMS in the amended complaint. Mr. Broder never submitted affidavits of merit from experts in prison medicine as to the policies and procedures designed or implemented by Dr. Hutchinson, so a state law med-mal claim – as opposed to an Eighth Amendment claim – arguably could not go forward as to him, for lack of meeting that statutory requirement. See n. 15, above.
34

See e.g., Zemaitis v. Spectrum Health, 2006 Mich. App. Lexis 1087 (4/6/06) (attached), at *14; Boodt, at *5. Its purpose, too, is to prevent frivolous filings. At present, the only remaining defendant is Dr. Mathai, and since she was a general practitioner, internist, or health care provider – and since she knew that she was the primary care physician – it is hard to see how she could possibly have been confused about what the plaintiff was alleging that she did wrong, or what she should have done in order not to be negligent. As the Vandenberg court noted, “dismissal of a claim is a drastic sanction that should be taken cautiously.” Id. at 502. Mr. Broder’s affidavits fully covered the statutory waterfront, and do not warrant dismissal of his med-mal claim against Dr. Mathai.19
D. The Issue of Proximate Cause Lastly, the defense argues that the notice of intent and affidavits of merit are deficient on the issue of proximate cause. The defense again cites Roberts, as well as Bailey v. Pornpchit, 2006 Mich. App. LEXIS 2459 (8/8/06). But in both those cases the precise question was how the defendants caused the alleged harm. In one case, the plaintiff was rendered unable to have children, and in the other case the plaintiff’s child was stillborn. In both cases the court insisted that some allegation be made (beyond a general claim of negligence) to show a causal connection between the alleged negligence and the alleged specific harm. Mr. Broder’s case is quite different, because the proximate harm he alleges was having to endure the pain and suffering of his symptoms for far longer than he should have had to endure
19 The Court also should not reward the gamesmanship inherent in the defense motion. The notice of intent and affidavits of merit were filed back in 2003, at the start of the case. The defense at any time could have moved to dismiss based on the same alleged deficiencies, if it believed them to be meritorious. Instead, the defense waited until all the discovery was done – at considerable expense to everyone – and makes the motion now only because dismissal will time-bar the plaintiff’s med-mal claim. Even in a case where the notice or the affidavit of merit truly were defective, the Court might want to condition a dismissal on the payment of costs, for the unnecessary discovery occasioned by the defendants’ delay.
35

them, and having to undergo more invasive treatment than otherwise would have been necessary. When the alleged negligence is the failure to timely diagnose and treat, and the proximate harm is the suffering caused as a result, there can be no “extra step” or “extra proof” required because the causal connection is direct. Similarly, if a doctor amputates the wrong arm, the plaintiff need not allege how the doctor’s negligence was the proximate cause of his injury – the nature of the claim itself eliminates the need for any such “intermediate” step. Again, what we have in Mr. Broder’s case is the opposite of the situation presented in Roberts and Bailey.
Here the defense of course may dispute whether or not Dr. Mathai was the responsible physician, or whether or not the late diagnosis and treatment resulted in added pain and suffering. But these are jury questions that have nothing to do with the framing of proximate cause in the notice of intent or in the affidavit of merit. In the same way, the surgeon accused of amputating the wrong arm might argue – long after the notice of intent and the affidavit of merit are filed – that he did not perform the surgery, or that someone else “marked” the wrong arm. These, too, can only be viewed as jury questions, and not as issues of “proximate cause” like those raised in Roberts and Bailey.
Moreover, in his notice of intent and in his affidavits of merit, Mr. Broder alleged that as a result of the delays, his cancer progressed from Stage I to Stage III. Exh. S, at 4-5; Exh. T, at 4; see also Exh. K, at 27. His experts – who volunteered to assist in this case after reviewing the file and who are not being paid by the plaintiff – maintain that position following discovery. Exh. B, at 11-13; Exh. N, at 71-73. Thus, even if “specific” allegations of proximate causation were needed in a case of this sort, they were in fact submitted. Id. Accordingly, both the issues
36

of causation and harm have been addressed.20
IV. MR. BRODER’S MEDICAL EXPERT’S OPINION AS TO THE MED-MAL CLAIM
The defense’s last argument is that Mr. Broder’s medical expert’s opinion does not sup-
port the medical malpractice claim. To reach this conclusion, the defense reads the evidence in the light most favorable to the defense,21 and even then the argument does not hold water. All
that the Court has to do is read Dr. Williams’ expert report, which Dr. Williams confirms in his deposition. See Exh. 1, at 9-11, Opinions and Conclusions; Exh M.22
As to the tardy diagnosis, Dr. Williams found (1) that Dr. Mathai had enough information
to be able to make a differential diagnosis of throat cancer by the end of August 2001; (2) that
Dr. Mathai should have had a confirmed diagnosis within a few weeks; (3) that Dr. Mathai failed
to test for throat cancer and did not complete the tests that she ordered to rule out other cancers;
(4) that after Dr. Antonini saw Mr. Broder on 10/12/01, Dr. Mathai should have gotten a con-
firmed diagnosis within 30 days; (5) that after the ENT saw Mr. Broder on 11/13/01, Dr. Mathai
approved 30-day delays that extended the earliest date for a confirmed diagnosis far beyond the
20 Mr. Broder’s damage claim is not just that he had to undergo chemotherapy that could have been avoided, but also that the wider field of radiation (to treat Stage III cancer) caused added damage to his throat, voice-box, and salivary glands. Exh. N, at 85-88. He also faces a much higher mortality rate if his cancer recurs. Exh. 2. 21 For example, the medical record shows (for Mr. Broder’s 7/11/01 annual health screen) ongoing cold/ sinus problems for 2-3 weeks, and a cough lasting longer than three weeks. The defense implies that the annual screen should be completely ignored because the nurse never wrote down the magic words “sore throat.” Of course, Mr. Broder’s testimony, confirmed by his kites, letters, and grievances, is that he had a more or less constant sore throat from April 2001on, and that he tried several times between May and August to get a doctor visit. See Part I, above. 22 Since the plaintiffs’ experts’ reports were the subject of cross-examination in the depositions, and were fully adopted (at least by implication) in the depositions, the plaintiff assumes that they will be treated as the doctors’ formal opinions for purposes of this motion. To be certain that they are, the plaintiff will also submit in the next ten days short affidavits from the two experts (Williams and Bradford) adopting their expert reports as sworn statements.
37

2-3 weeks that the ENT had requested; and (6) that her failure to get a confirmed diagnosis until

mid-January 2002 far exceeded the standard of care in any setting in southeast Michigan. Id.

As to the tardy treatment, Dr. Williams opines that Dr. Mathai should have ensured that

Mr. Broder’s treatment started within four weeks of the mid-January diagnosis date, and that

waiting until April 2-3, 2002, far exceeded the standard of care. The defense’s selective quotes

from the deposition notwithstanding – most of which are qualified by the expert – a reasonable

jury could find that Dr. Williams’s testimony fully supports a claim of medical malpractice.

CONCLUSION

For the above reasons, the CMS defendants’ motion for summary judgment should be

denied. The Court should find that there are genuine issues of material fact as to both the Eighth

Amendment and the med-mal claims, and should schedule the case for trial.

Respectfully submitted,

MICHIGAN CLINICAL LAW PROGRAM

Dated: December 21, 2006

/s/ Paul D. Reingold 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 P-27594 pdr@umich.edu

Proof of Service

The plaintiff’s brief in response to the CMS defendants’ motion for summary judgment, and all attached exhibits, were served using the Court’s ECF system, which will provide notice by e-mail to all counsel listed on the case caption.

/s/ Paul D. Reingold Attorney for Plaintiff pdr@umich.edu

Dated: December 21, 2006

38

Plaintiff’s Index Exhibits Volume I
A. Expert report of Brent Williams, M.D. B. Expert report of Carol Bradford, M.D. C. Mr. Broder’s medical “chart” (including a more legible typed version) D. Mr. Broder’s medical records E. Mr. Broder’s grievances, kites, and related communications F. Deposition of George Pramstaller (excerpts) G. Deposition of Steven Broder (excerpts) H. Deposition of primary care physician Bency Mathai (excerpts) I. Deposition of CMS medical director Craig Hutchinson (excerpts) J. Deposition of visiting physician Audberto Antonini (excerpts) K. Deposition of consulting radiologist James Hayman (excerpts) L. Deposition of treating radiologist Christina Tsien (excerpts) M. Deposition of plaintiff’s expert Brent Williams (excerpts)
Volume II N. Deposition of plaintiff’s expert Carol Bradford (excerpts) O. Deposition of defense expert Silas Norman (excerpts) P. Findings of fact and conclusions of law in the Hadix case (2002) (excerpts) Q. Findings of fact and conclusions of law in the Hadix case (2006) (excerpts) R. Original complaint S. Notice of intent T. Affidavits of merit U. Unpublished cases

 
 Case 2:03-cv-75106-MOB-PJK Document 157-4 Filed 05/20/2009 Page 2 of 12
Timothy P. Barth, MD, CCHP
Correctional Health Solutions
3265 North Wagner Road Ann Arbor, Michigan 48103-1773
tbarthmd@umich.edu
EXPERT REPORT: TIMOTHY P. BARTH, MD, CCHP. Pursuant to Rule 26(a)(2)(B) of the Federal Rules of Procedure, I submit this expert report on behalf of Defendants, Correctional Medical Services, Inc., Berrey Mathai, M.D. and Craig Hutchinson, M.D.
A. Statement Of Oualifications I, Timothy Paul Barth, MD, CCHP, am a practicing internist and emergency room
physician. I am also a physician surveyor for the National Commission on Correctional Health Care (NCCHC). A true and correct copy of my curriculum vitae setting forth my qualifications is attached hereto as Exhibit A.
I have offered my expertise in consultation on many occasions including to the U.S. District Court in the Eastern District of Michigan (The Honorable Victoria A. Roberts). My advice in these matters is most frequently informal, after brief reviews of medical records. I have testified in both state and federal courts for both plaintiffs and defendants on prisoner health care issues. I am qualified as an expert in correctional health care in a number of states and federal judicial districts, including the venue of this court, as recently as January, 2009 (The Honorable Janet T. Neff). My three trial appearances as an expert were: pro bono for an inmate plaintiff, and recently, in January, 2007 and January, 2009, for correctional physician defendants.
My education, training, experience and professional activities in correctional health care qualify me to render an opinion in this case. These opinions are based on my knowledge of systems and care provision within correctional institutions. As a physician surveyor, I am also familiar with the published guidelines for adult correctional facilities (prisons and jails.)
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My opirrions in this case are to a reasonable medical certainty.
B. Statement of Data and Other Information Considered in Forming Opinions
I reviewed the following documents and records regarding this case:
1.) Plaintiff's Complaint and Second Amended Complaint (pAUL D. REINGOLD, Attorney for Plaintiff);
2.) Plaintiff's Affidavits of Merit, Expert Reports and/or Supplemental Expert Report, Curricula Vitae and Depositions: CAROL BRADFORD, MD (Otolaryngology/Head & Neck Surgical Oncology) and BRENT WILLIAMS, MD (Internal Medicine);
3.) Plaintiff's correctional health care and outside medical records;
4.) Tabbed Off-Site Requests and CMS records;
5.) Grievances, Inquiries and Responses;
6.) Plaintiff's Deposition (STEVEN MARK BRODER);
7.) Plaintiff's Expert's Depositions: CAROL BRADFORD, MD, (Otolaryngology) and BRENT WILLIAMS, MD (Internal Medicine);
8.) Defendants' Depositions: Michigan Department of Corrections' Administration and Staff: GEORGE PRAMSTALLER, DO (Family Practice) and PATRICIA BARRETT, RN;
9.) Defendants' Depositions: Correctional Medical Services, Sub-Contractors and Paid Consultants; CRAIG HUTCHINSON, MD (Intemal Medicine), BENCY MATHAI, MD (Internal Medicine), AUDBERTO ANTONINI, MD (Internal Medicine) and RONALD KORNAK, MD (Otolaryngology), JOHN AXELSON, MD (Hematology/(Medical)Oncology), JAMES HAYMAN, MD (Radiation Oncology) and CHRISTINE TSIEN, MD (Radiation Oncology);
10.) Review of Defendants' Affidavits of Merit, Expert Reports and Curricula Vitae and Depositions: LEON PEDELL, MD (Internal Medicine), SILAS NORMAN, MD (Internal Medicine), MICHAEL J. STENDER, MD (Hematology /(Medical) Oncology) and EUDORO COELLO, MD (Hematology /(Medical) Oncology);
11.) Defendants Motion to Dismiss with Exhibits;
12.) Plaintiff's Response to Motion for Summary Judgment;
13.) Policy Directives and/or Operating Procedures of the MDOC concerning Health Services and Utilization Review. 2

Case 2:03-cv-75106-MOB-PJK Document 157-4 Filed 05/20/2009 Page 4 of 12
C. Summary of Care and Statement of Opinions 1.) The Michigan Department of Corrections is responsible for all policies,
procedures and programs in their correctional facilities, including health care. There are no separate processes of the contractors, Correctional Medical Services, Inc. (CMS), nor have processes been developed by CMS other than those requested by the MOOC and limited by MDOC resources. The medical record demonstrates no relationship ever existed between Dr. Hutchinson and Plaintiff, nor that Dr. Hutchinson was in any way involved in the review of his care, or established the processes whereby his care was reviewed for approval.
The process of utilization review (including the forms called "407's" and "409's" with their formats) was developed by United Correctional Care, Inc. with the MDOC. The use of facsimile transfer of information was decided at that time by decision of the MDOC. The actual utilization review process was based on standard nurse driven "Interqual Review Standards" with corporate physician oversight. Dr. Hutchinson did not arrive on the seen until late 1999, by which time all the processes for utilization review were well-entrenched.
Two of the alleged delays mentioned by Plaintiff's attorney highlight Dr. Mathai's attempts at intervention within the process required by the MOOC:
Dr. Kornak's initial evaluation of Plaintiff occurred on 11113/01. Lesions were observed on both vocal cords at that time. The next day, 11114, Dr. Mathai reviewed Dr. Kornak's request for ''microlaryngoscopy in two to three weeks" and gave it to the MDOC coordinator to be forwarded to CMS' s utilization reviewers for authorization. At that time, she scheduled Mr. Broder for follow-up 14 days from that date on 11128, to check on the progress of the scheduling for surgery. She also filled out the recently suggested and approved "tickler" for 11129, the day after Mr. Broder's appointment, just in case he did not show up on 11128. Dr. Mathai did not receive Dr. Kornak's transcribed note from the clinic until Tuesday, 11120. After review she
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immediately gave it to the MDOC coordinator to forward to CMS's utilization reviewers. Dr. Mathai also completed at that time, 11129, an Offsite Specialty Referral 3D-Day
Follow-up form indicating she had reviewed the status of the microlaryngoscopy recommended for Mr. Broder and she was informed it would be scheduled shortly. Dr. Mathai, assuming that surgery would occur in the next few weeks and knowing that if cancer was found, Radiation Therapy would not see her patient until after the New Year, therefore scheduled her patient for a 112/02 visit in anticipation of the next step in his treatment.
The approval did not come until 12/5/01. No explanation is offered. The Plaintiff's attorney asserts that "CMS" did not schedule it until 1111102. It has repeatedly been testified that off-site scheduling was the responsibility of the MDOC Patient Services Department at Duane Waters Hospital. The scheduling required the coordination of three different clerical entities. The Patient Services Representative, who probably did not have Dr Kornak's note for review; a receptionist/secretary in Dr. Kornak's office who did not have Dr. Kornak's dictation, because, as Dr. Kornak testified, he does not keep office copies of his Duane Waters Clinic dictations; and the operating room scheduling clerk at Foote Hospital. Dr. Karnak was almost certainly not informed that Mr. Broder's surgery was being scheduled and certainly Dr. Mathai was not contacted. With the upcoming Christmas and New Years holidays, with surgery schedules being truncated to emergencies only because of these holidays, only knowledge by Dr. Kornak and his intervention would have permitted Mr. Broder to be added on to the surgical schedule. Intervention by Dr. Mathai would have only been effective through Dr. Kornak. When Dr. Mathai next checked her "tickler" file and completed a second Offsite Specialty Referral 30-Day Follow-up form on or about 112/02, Mr. Broder had not yet had his surgery. At least she could state with certainty that he would have his surgery on 1111/02, and therefore approved the delay. She filled out another "tickler" for the end of January. To have gotten it done earlier would have
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required a cancellation in the surgical schedule, Dr. Kornak's intervention and MDOC custody to move Mr. Broder to Foote Hospital.
Dr. Mathai was not hired to run a medical practice. She was hired to see patients, provide clinical impressions, and recommend treatment programs. These additional programs were to be carried out by MOOC employees, specifically the nursing staff and support services of healthcare. Dr. Mathai had essentially no control over these aspects of healthcare provision.
Despite kites in December and January by Mr. Broder, none of which were passed on to Dr. Mathai, Mr. Broder did not see the radiation oncologist until 2/5/02... This is apparently in response to Dr. Mathai seeing Mr. Broder in response to her "tickler" file appointment on 1/30/02. The record notes that Dr. Mathai called Patient Services to request scheduling of this appointment within a week.
When Dr. Hayman saw Mr. Broder, he noticed that a vital piece of information was missing from Mr. Broder's record at Foote Hospital. When staging individuals for treatment, the operating surgeon's physical examination of the neck and orophayngeal structures under anesthesia is critical information. Dr. Hayman could not find Dr. Kornak's operative note and he called Dr. Kornak's office to see if they had a copy. They didn't. So Dr. Kornak dictated a note (hence the date, 2/5/02) to remedy this deficit. Until radiation oncology received a copy of this note they could not proceed and Mr. Broder was returned to Parnell without a communicated definite simulation date. It then falls to the radiation oncologists to schedule Mr. Broder for simulation. It is incomprehensible why the radiation oncologist awaited an approval of CT. Simulation automatically includes CT imaging to measure internal anatomy and help localize the beam for radiation. The simulation occurred without approval of a CT scan because CT scanning is part of any radiation simulation and this simulation had already been approved and
scheduled by patient services. Dr. Mathai left on maternity on 3/8/02.
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2.) The process employed by MDOC within the prison environment concerning Plaintiffs care provision was not inhibited by any policy, practice, or procedure that was officially formulated, adopted and/or implemented by CMS and/or Dr. Hutchinson.
The records in this case show that the processes of Plaintiffs care provision within the MDOC environment were complicated, involving multiple people from utilization review personnel, scheduling clerks, custody staff, nursing staff, hospital schedules, on-site primary care physicians and specialty care physicians in the community. The effectiveness of the process was not inhibited by any policy, practice, or procedure that was officially formulated, adopted and/or implemented by CMS and/or Dr. Hutchinson.
The policies, practices, and/or procedures of CMS concerning the authorization and provision of medical care and/or the follow-up of medical care for Mr. Broder within the MDOC process are consistent with national guidelines/standards. Pursuant to its contract with the State of Michigan, CMS contracted with licensed health professionals to staff MDOC facilities and provide primary care services as medical service providers (MSP). Dr. Mathai was one such MSP. Contracts between CMS and MSP's required MSP's to provide primary care services consistent with their medical judgment and the applicable medical standard of care. CMS employed a Utilization Review Department to review and authorize requests for offsite medical specialty services where indicated. CMS' s utilization reviewers timely authorized requests for Mr. Broder to receive recommended specialty care and/or follow-up medical examinations and treatment. CMS, it's utilization reviewers and MSP's properly operated within the processes employed by the MDOC. CMS's Utilization Review Department relied upon MDOC coordinators to fax information to them for their review and schedulers employed by the MDOC to schedule authorized medical examinations, follow-up care, and treatment. CMS utilization reviewers expected MDOC schedulers would schedule authorized medical care in consideration
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of custody and transportation issues, the availability of the patient and medical providers, and the urgency of the medical condition involved, if any.
The MDOC's processes were developed as sequential processes that were negatively impacted by MDOC limitations with regard to information technology. However, Ms. Barrett, the Health Unit Manager descrihes the tracking of specialty care and off-site appointments as being accomplished in the medical records department by the department manager.
The Michigan Department of Corrections has consistently insisted on and retained all direct responsibility for the provision of health care for all inmates within their custody. This includes all decisions with regard to phYSician and mid-level staffing levels. They have also retained as there direct employees those health care professionals with the statutory responsibility for advocacy for their patients.
The MDOC uses a nurse driven health care system. Access to tlle entirety of the health care is through the nursing staff. The record indicates that Plaintiff had unimpeded access to the nursing staff, which had the responsibility to inform and keep Dr. Mathai abreast of the progress of his diagnosis and treatment of throat cancer. They were also the means whereby Plaintiff would be scheduled to see Dr. Mathai other than the appointments she scheduled based on her anticipated need to see him next. There is no indication in fue record that Dr. Mafuai deliberately overlooked a medical issue concerning Mr. Broder that was brought to her attention by nursing staff or anyone else.
Any alleged delay in providing medical care and treatment to Mr. Broder was not caused by a policy, practice, or procedure created andior implemented by CMS, Craig Hutchinson, M.D., andior Bency Mathai, MD. Their actions andior inaction were not a proximate cause of any alleged delay in Mr. Broder's treatment or alleged injuries.
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3.) The concept of Standard of Care is what a reasonable physician of the same training and experience would do under similar circumstances. It refers to medical decision making not the minutiae of patient care coordination or the timeline of care delivery. This is especially true in the ambulatory care setting where multiple variables can confound how the care is provided.
The speculations of Plaintiffs experts are distorted by vision through a retrospectoscope (hindsight). Standard of Care does not include patient care advocacy based on omniscience with regard to events such as equipment failure and the absence of chemicals in the hospital radiology department.
Plaintiffs experts are careful to qualify their Standard of Care language as applicable to "South East" Michigan. It seems to acknowledge that the resources in Jackson in South Central Michigan, are different and can impose scheduling difficulties that are not the usual in the tertiary care environment of the second largest health care organization in Michigan. There are multiple tertiary care health care organizations in South East Michigan including Henry Ford, Detroit Medical Center, st. Joseph Mercy and William Beaumont. There are none in Jackson. The population of the city of Jackson in 2000 was approximately 36,000 - about the same number as students who annually register to attend classes at the University of Michigan. Jackson's ties to tertiary care hospital are to Battle Creek, despite its closer proximity to Ann Arbor/ Ypsilanti and LansinglEast Lansing.
A major issue affecting Community Standards of Care not understood by Plaintiff s experts are the security necessities of not notifying inmates of their appointments outside the prison. This is a general proviso to protect staff and the community from plans for an escape or other activities that might put people at risk. The end result of such a policy is that it can limit incarcerated patients from advocating for their own health care. However, incarcerated
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individuals are usualJy aware of a timeline for their care and are usually quite successful in advocacy for themselves.
D. Conclusions Plaintiff's alleged delays, if any, were the result of process problems and issues in the
MDOC's off-site health care process andlor the decision making of off-site specialty care providers. Dr. Mathai's professional response to Plaintiff's health care needs was appropriate.
The MDOC is the primary author of all processes, programs, policies and procedures promUlgated in the operation of their institutions including health care programs. Dr. Hutchinson and Correctional Medical Services, Inc., inherited an off-site review process that had been developed by the MDOC with a previous health care contractor. The polices, practices, andlor procedures of CMS were not a proximate cause of Plaintiff's alleged injuries.
E. Summary of Supporting Exhibits See B. above.
F. Fee Schedule My usual fees are:
InmatelFamilY/Attomey Represented Plaintiffs Pro bono for pro se and court appointed representation; ADA cases - per court determination; Represented by counsel: $ 3,000 retainer; $ 400 per hour (deposition, 4 hour minimum; trial, 8 hour minimum) Plus travel expenses.
PhysicianiHealth Care Professional Defendants $ 350 per hour for record/document reviews and reports; $ 375 per hour for depositions (4 hour minimum); $ 3,500 per day or fraction thereoffor trial; plus reasonable travel expenses.
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G. List of Cases Testified to at Trial or By Deposition as an Expert Jeremiah Owens (# 247944) v. Dennis Straub. et al.. 98-CV-72S48-DT (U.S.D.C., E.D.
Michigan, S.D.) Appeared for inmate Plaintiff at deposition and trial, June 2001. Aris et al.. v. Allen et al., 1:05-CV-396-PWG (U.S.D.C., N.D. Alabama, E.D.) Appeared
for defendant (State of Alabama) at deposition, June 2006. Estate of Leonard Coley. et al. v. Ngozi Ejiogu. MD.. et at., 24-C-OS-007428 MM
(Circuit Court for Baltimore City, Maryland). Appeared for correctional physician defendant at deposition and trial, January 2007.
Estate of Kevin Fabian. Deceased v. Patricia Hulin£, RN. et ai., OS-S38-NH (Macomb
County Circuit Court, Michigan). Appeared for correctional nursing defendants at deposition, October 2007.
Estate ofCharles Jones v. Julianne Munro.et al. 2:0SCV70454 (U.S.D.C., E. D. Michigan). Frank Lee Howard. III v. Badawi Abdellatif MD.. et aI., Case No: 2:0S-cv-Sl (U.S.D.C., W.D. Michigan, N.D.) Appeared for correctional physician defendants at deposition and trial, January 2009.
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oIL Signature The above statements are true, based upon personal knowledge and professioual
expertise, and stated with reasonable medical certainty. I am competent to testifY to such at trial. My opinions are provided subject to further information that may arise in this case.
• 0.
Dated: May 14,2009
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 Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 2 of 12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER, Plaintiff,

REeD JUL 12 2006

vs

Case No. 0375106

Honorable Gerald E. Rosen

CRAIG HUTCHINSON, its medical director, and AUBERTRO ANTONINI, and BENCY MATHAI, and employees of the Michigan Department of Corrections, namely: PATRICIA 1. CARUSO, Director, GEORGE PRAMSTALLER, Medical Director, HENRY GRAYSON, former warden, and JAN EPPS, Regional Medical Director in their individual and official capacities,

Defendants.

MICHIGAN CLINICAL LAW PROGRAM Paul D. Reingold (P27594) Attorneys for Plaintiff 363 Legal Research Building 801 Momoe Street Ann Arbor, Michigan 48109-1215 (734) 763-4319
Kevin Thorn (P36178) Assistant Attorney General Attorney for Defendants Camso,
Pramstaller and Epps Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

CHAPMAN AND ASSOCIATES, P.e. Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Attorneys for Defendants Craig Hutchinson, Aubertro Antonini and Benzi Mathai 40950 North Woodward Avenue, Suite 350 Bloomfield Hills, Michigan 48304 (248) 644-6326

DEFENDANTS' EXPERT REPORT: SILAS NORMAN, JR., M.D.

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Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 3 of 12
This is a report on the medical care provided to Steven Broder at the Parnell Correctional Facility in Jackson, Michigan from approximately March 2001 to May 2002 concerning the above captioned case. My opinions are based on the materials I have reviewed and are expresed to a reasonable degree of medical certainty. I may supplement this report if new materials are provided.
L. Statement Of Oualifications:
My CV and list of fees is attached. I am licensed in Michigan as a medical doctor. I graduated from the Wayne State University School Of Medicine in Detroit, Michigan (1976). I completed my residency in Internal Medicine (1976-1979) at Detroit General Hospital. I became board certified by the American Board of Internal Medicine in the medical specialty of Internal Medicine in 1983. I am a Certified Correctional Health Professional, Advanced (1998 to present). I arn a staff member at all Detroit Medical Center Hospitals, in Detroit, Michigan. Currently I am an Assistant Professor of Medicine and the Assistant Dean for Admissions at Wayne State University, School of Medicine. During all dates in question in the above captioned case I spent more than 50% ofmy professional time in the medical specialty ofInternal Medicine. A list ofcases in which I have testified in the past 4 years will be provided.
II. Materials Reviewed: I reviewed the following documents in this case: 1. Complaint. 2. Affidavit of Merit by Brent Williams, M.D. (Internist). 3. Affidavit of Merit by Carol Bradford, M.D. (Oncologist, Otolaryngologist). 4. MDOC Medical Chart Of Steven Broder. 5. Affidavit of Meritorious Defense by Silas Norman, M.D. 6. Affidavit of Meritorious Defense by Leon Pedell, M.D. 7. Transcripts of the following depositions: a. James Hayman, M.D. (radiation oncologist) b. Christina Tsien, M.D. (radiation oncologist) c. Ronald Kornak, M.D. (otolaryngologist, ENT) d. John Axelson, M.D. (oncologist)
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Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 4 of 12

e. Audberto Antonini, M.D. (internal medicine)

f. Bency Mathai, M.D. (internal medicine)

g. Steven Broder (Plaintiff)

h. Craig Hutchinson, M.D. (CMS Medical Director in Michigan)

1. George Pramstaller, D.O. (MDOC Chief Medical Officer)

J.

Patricia Barrett (MDOC, Resident Unit Health Manager)

8. Expert Report by Carol Bradford, M.D., Board Certified in Otolaryngology

9. Expert Report by Brent Williams, Board Certified in Internal Medicine

III. Statement Of Basis For Opinions To Be Expressed: My opinions expressed herein are based upon my skills, knowledge and abilities as a medical
doctor who is board certified in the medical specialty of Internal Medicine, and the infonnation reviewed in part II above.
Between March 2001 and August 20, 2001 Mr. Broder did not exhibit "persistent" symptoms that would require Dr. Mathai to rule out laryngeal cancer. On May 4, 200 I Plaintiff infonned Dr. Mathai he was "recovering" from a sore throat. On May 31,2001 Plaintiffwas seen by nursing staff and he did not complain of a sore throat. On July 11,2001 Plaintiff was again seen by nursing staff and complained of a sinus cold with a cough for 2-3 weeks, and he did not complain of a sore throat. August 20, 200 I is the first time Mr. Broder presented to Dr. Mathai with a sore throat which became persistent thereafter. During the August 20,2001 examination, Plaintiffstated his throat had been sore for 2 weeks only.
Dr. Mathai was not infonned that Mr. Broder's sore throat became persistent until after he was seen by Dr. Antonini on October 10, 2001. Further, prior to October 10,2001, Plaintiff did not complain of difficulty swallowing ("dysphagia"). It is within the applicable medical standard of practice and care for the consideration of a differential diagnosis oflaryngeal cancer to take 2 months after August 20,2001 under Mr. Broder's circumstances.
On September 4, 200 I Plaintiff was examined by nursing staff in sick call in response to a "kite" by Plaintiff. Plaintiffinfonned nursing staff'Tm not sure if! still have a sore throat when I wake up." The nurse observed Plaintiffs throat was not red or swollen, and that Plaintiff was a "smoker for many years." There was no cervical lymph node swelling. Plaintiff did not complain of difficulty swallowing.
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Dr. Mathai was on a vacation leave from October 1,2001 through October 21, 200 I. During that time, Plaintiffwas seen one time by Audberto Antonini, M.D. on October 12, 2001. Dr. Antonini properly diagnosed Mr. Broder with possible laryngeal cancer, and made an appropriate recommendation for an ENT consultation. Dr. Antonini was covering for Dr. Mathai, and therefore was not expected to followup concerning Plaintiffs cancer workup.
Plaintiff was suspected to have laryngeal cancer when seen by Dr. Kornak at the ENT clinic on November 13, 2001. Palpation ofMr. Broder's neck was negative. Dr. Kornak observed "larynx reveals lesions on both cords causing his hoarseness." He did not observe "anything at the glottic introitus causing dysphagia." Dr. Kornak recommended a microlayngoscopy with vocal cord stripping at Foote Hospital in 2-3 weeks.
On November 14, 2001 Dr. Mathai reviewed Dr. Kornak's report, and submitted a request for authorization by CMS for the microlaryngoscopy and vocal chord stripping procedures to the MDOC patient services liaison. The MDOC faxed the request to CMS on November 16, 2001.
On November 29,2001 Dr. Mathai completed an "Offsite Specialty Referral 30 Day FollowUp Form." Upon inquiry Dr. Mathai was informed that authorization ofthe procedures recommended by Dr. Kornak was in the process of being reviewed. Therefore Dr. Mathai answered "yes" to a question on the fonn, "Is it acceptable to continue to wait completion of offsite?" Based on her inquiry she believed the procedures would be scheduled shortly.
CMS approved the procedure on December 5, 2001, and faxed the authorization to the MDOC's Patient Services on December 7, 2001 to schedule the procedure. Patient Services scheduled Plaintiff to receive the microlaryngoscopy and vocal cord stripping from Dr. Kornak on January 11, 2002. Dr. Kornak testified at his deposition that there was no delay in scheduling these procedures.
On January 2,2002 Dr. Mathai followed up on the status ofPlaintiffs microlaryngoscopy and vocal chord stripping by completing a second "Referral 30 Day Follow-Up Form." Dr. Mathai observed that the procedures were scheduled to be completed by Dr. Kornack on 1111102, therefore again she answered "yes" to the question "is it acceptable to continue to wait completion of offsite?"
Dr. Kornak completed the microlaryngoscopy and vocal cord stripping on January 11, 2002
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Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 6 of 12
as scheduled. In his Operative Report', Dr. Kornak observed "lesions were on both true vocal cords and limited to the true vocal cords." Portions ofthe lesions were stripped off both vocal chords and sent to the Pathology lab for examination. On January 11,2002, Dr. Kornak was unable to diagnose whether Plaintiff had laryngeal cancer until he received the biopsy results from the pathology lab. He recommended Plaintiff to rest his voice for 10 days, and return to the ENT clinic in 2 weeks to discuss the biopsy results. Dr. Mathai reviewed Dr. Kornak's recommendations promptly on January 16,'2002.
Plaintiff returned to see Dr. Kornak for his 2 week followup appointment as recommended on January 22, 2002. On this date Dr. Kornak reviewed the biopsy pathology report with Plaintiff. The pathologist Dr. Devany diagnosed Plaintiff with "invasive and in-situ moderately differentiated keratinizing squamous carcinoma." This is the first date on which Plaintiffs cancer was diagnosed. Dr. Kornak did not perform any staging of the cancer, and was unaware at what stage Plaintiffs laryngeal cancer was at on January 22, 2002. Dr. Kornak completed a Special Consult Report requesting Plaintiff to receive a referral to the Radiation Oncology department at Foote Hospital "ASAP." Dr. Kornak testified that he expected that the radiation oncologist would stage Plaintiffs cancer by performing a CT scan and possibly an MRl, as well as recommend a course ofradiation and possibly chemotherapy treatment. Dr. Kornak testified he required no further followup with Plaintiff until after he received his cancer treatment. The same date Dr. Mathai entered a progress note acknowledging Plaintiff received his foUowup ENT visit with Dr. Kornak. Plaintiffs radiation oncology consultation requested by Dr. Kornak was approved by CMS the same day as well, and scheduled to occur promptly on February 5, 2002.
Dr. Mathai examined Plaintiff on January 30, 2002. She agam reviewed the recent recommendations by Dr. Kornak, and verified with Patient Services that the radiation oncology consult was scheduled to occur in the next week. Plaintiff complained of "dysphagia and throat pain at night" and Dr. Mathai ordered UItram pain medication for same.
On February 5, 2002 Plaintiff received his offsite specialty consultation with the radiation oncology clinic as scheduled. The consultation was performed by James Hayman, M.D., who was
, While this report concerns the microlaryngoscopy and vocal chord stripping procedures on January II, 2002, the admission date and report date inaccurately state they occurred in February 2002. Dr. Kornak testified he does not recall why the report was not prepared immediately.
Page 5 of 11

Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 7 of 12
covering for Christine Tsien, M.D. Dr. Hayman and Dr. Tsien are both radiation oncologists. Dr. Kornak's operative report concerning the January 11,2002 microlaryngoscopy was not available, so Dr. Hayman states he was unaware if Plaintiffs cancer was in Stage I or more advanced, and that his assumption it was Stage I was his "best guess" based on the information available to him. However, Dr. Hayman's report states, "Assuming the patient in fact has stage I larynx cancer, we would recommend treatment with radiation therapy to be given with curative intent". [emphasis added] The consultation reports states, "arrangements will be made for patient to return for treatment planning and to begin treatment soon". Dr. Hayman wrote, "recommend treatment with radiation (7 wks M-F) - will be calling with appt of simulation initiation of treatment".' Dr. Hayman also completed a Specialty Consult Report the same date. Dr. Hayman marked the recommendations as non-urgent, and requested a follow-up visit in 2 weeks. Dr. Hayman did not order a CT scan or an MRI to initiate staging ofthe cancer. Dr. Hayman testified he did not order a CT scan to confirm the staging ofthe disease because he knew it would be done as part ofMr. Broder's treatment planing with the radiation oncology department. Dr. Mathai reviewed Dr. Hayman's Specialty Consult Report on 2/8102, and submitted it to the MDOC who faxed it to CMS on 2/1 1102. CMS authorized the requested recommendations ofDr. Hayman on 2/12/02, and faxed the authorization back to the MDOC Patient Services to schedule the procedures on 2/19/02. Patient Services scheduled the simulation for treatment to occur on 3/12/02, and the radiation therapy to begin at Foote Hospital on 3/19/02.
On 2/13/02, Dr. Tsien reviewed Dr. Hayman's report, observed that cancer staging had not been initiated by Dr. Hayman, and immediately recommended a "CT scan ofhead and neck ASAP". The recommendation is cc'd to Dr. Kornak. She observes the patient has "stage I larynx cancer". There is no indication a request for authorization for the CT was ever properly submitted to CMS, or that the report was received and reviewed by Dr. Mathai.
Dr. Mathai examined Plaintiff on 2/22/02, during which time she was unable to examine Plaintiffs chart because it was out on an FOIA request [ requested by Plaintiff by letter on January 24, 2002]'. Dr. Mathai observed continued dysphagia, and primarily addressed Plaintiffs dietary concerns. Plaintiffs simulation of treatment and radiation treatment were scheduled to begin on
2 Simulation of treatment is required to be performed prior to initiating cancer treatment.
J The fact that Plaintiffs chart was unavailable also likely explains why Dr. Tsien's request for a CT was not reviewed by Dr. Mathai.
Page 6 of 11

Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 8 of 12
March 12, 2002 and March 19,2002 respectively. This is the last time Plaintiff was seen by Dr. Mathai prior to her maternity leave beginning 3/9/02 to 5/15/02.
On March 8, 2002, Marcella Clark, MD, covering for Dr. Mathai, reviewed the chart and observed Dr. Tsien's request for a CT scan. Dr. Clark requested an "urgent" CT scan of Plaintiffs head and neck concerning the "newly diagnosed larynx cancer". CMS approved the request on 3/13/02, and faxed the authorization to MDOC Patient Services on March 14,2002 for scheduling. Patient Services scheduled the head and neck CT for April 1, 2002. However, the simulation recommended by Dr. Hayman was completed as scheduled by Dr. Tsien on March 12, 2002, at which time the CT was also completed. The CT was reviewed by Dr. Michael Shanks, MD (radiologist). Dr. Shanks observed "tumor appears to involve the larynx on the left with extension into the epiglottis". The CT indicates for the first time that Plaintiffs cancer was more advanced than originally assumed by Dr. Hayman on February 5, 2002, since it extended into the epiglottis. Dr. Shanks recommended a "diagnostic MRI could be perfOITIled as needed". The report was sent to Dr. Tsien.
On March 18,2002, Dr. Tsien reviewed Plaintiffs CT and observed the CT report and noted the larynx cancer extended to the "eppiglotic/parapharyngeal" region. Therefore she submitted a specialty consult report requesting a head and neck MRI on an urgent basis, as recommended in the CT report. On March 21, 2002, Dr. Tsien's consult report was reviewed byMSP Dr. Bey, who was covering for Dr. Mathai while on maternity leave. Dr. Bey prepared and faxed a CMS Authorization Request for the MRI requested by Dr. Tsien. CMS authorized the MRI the same day "ASAP" and faxed the authorization to the MDOC Patient Services who scheduled the MRI for March 27, 2002. Dr. Bey also submitted an Specialty Consult Report requesting Radiation Treatment be postponed and rescheduled after the MRI results were reviewed.' Plaintiff received the MRI as scheduled.
On March 25, 2002, Dr. Bey requested that PlaintitJreceive chemotherapy for his laryngeal cancer within 2 weeks. The request was reviewed by CMS on March 26, 2002, and Plaintiff was authorized to be seen at the cancer clinic on March 28, 2002. On March 27,2002 Plaintiffs MRI was completed as scheduled. The results were not read yet.
Plaintiffs was seen by John Axelson, M.D. at the cancer clinic on March 28, 2002, as
4 The MRI was needed for staging. If the MRI indicated Stage III cancer, chemotherapy is required in addition to radiation treatment.
Page 7 of II

Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 9 of 12
scheduled. Dr. Axelson is Plaintiffs treating oncologistlhematologist. Dr. Axelson noted Plaintiffs cancer was previously diagnosed as stage I, however recommended radiation therapy was not begun due to Dr. Shanks observations from the head and neck CT. He observed Dr. Tsien followed up by ordering an MRl. Dr. Axelson placed a call to Dr. Tsien and Kornak "for more rapid follow-up". Axelson recommended follow-up with Dr. Kornak by April 2, 2002, which he faxed to CMS on March 28, 2002. On March 29, 2002, CMS authorized a consult with Dr. Kornak "ASAP". The consult was scheduled for April 2, 2002 as recommended by Dr. Axelson.
On April I, 2002, the MRl report was completed and reviewed by Dr. Tsien. Dr. Tsien diagnosed Plaintiff with "Stage ill T2Nl squamous cell carcinoma of the left true vocal cord extending into the supraglottis". Chemotherapy and radiation therapy were recommended. Dr. Axelson testified within a reasonable degree of medical probability that in January 2002, Plaintiffs cancer was advanced at Stage ill, and never at Stage 1.
On April 2, 2002, Plaintiff was hospitalized, and chemotherapy and radiation therapy were begun. Dr. Mathai returned from maternity leave after May 15, 2002, at which time Plaintiff continued to receive his radiation treatment. She first saw Plaintiff after her return on May 20, 2002. She observed Plaintiff still had dysphagia, was not taking his Ultram as prescribed, but he was not in any pain. Plaintiff continued his radiation treatment, and she recommended follow-up in I month.
Plaintiff completed his radiation treatment on May 23,2002. Plaintiff was authorized and received continued follow-up with oncology by Dr. Tsien. His radiation therapy was restarted by Dr. Tsien on June 6, 2002. On June 10, 2002, Dr. Heizel (radiologist) observed the tumor was diminished by approximately 50%. On June 13, 2002, Dr. Kornak performed a microlayngoscopy and biopsy of arachnoid and right false cord. No evidence of tumor was found. On July 22, 2002 Plaintiffs radiation treatment was complete~, and Dr. Tsien observed Plaintiffwas free ofcancer and "in stable condition with no evidence of recurrent disease." On August 27,2002 Plaintiffreceived a 2 month routine followup with Dr. Kornak at the ENT clinic. Dr. Kornak recommended another followup in 2 months. By Septemher 30,2002 Plaintiffs sore throat was completely resolved.
Plaintiff's cancer treatment was completed successfully. Plaintiffs cancer is currently in complete remission.
Page 8 of II

Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 10 of 12
IV. Statement Of Opinions To Be Expressed:
I. Was Dr. Mathai, Dr. Antonini, Dr. Hutchinson, andlor eMS deliberately indifferent to the serious medical needs ofMr. Broder? ANSWER: NO.
2. Did Dr. Mathai, Dr. Antonini, Dr. Hutchinson, and/or eMS delay the diagnosis of Plaintiffs laryngeal cancer? ANSWER: NO.
3. Did Dr. Mathai andlor Dr. Antonini breach the applicable medical standard ofpractice and care during all dates in question. ANSWER: NO.
4. Did Dr. Mathai, Dr. Antonini, Dr. Hutchinson, and/or eMS cause any injury to Plaintiff? ANSWER: NO.
5. Were the alleged actions and/or inactions of Dr. Mathai, Dr. Antonini, Dr. Hutchinson, and/or eMS the proximate cause of any injury to Plaintiff? ANSWER: NO.
Early on Dr. Mathai observed Mr. Broder with an intermittent sore throat, without progressive symptoms. Therefore, she was not required to suspect laryngeal cancer during this time. Laryngeal carcinoma can be accompanied by hoarseness and dysphagia (difficulty swallowing), which were not complained of until October 12, 2001). The earliest date on which Dr. Mathai could have suspected laryngeal cancer was during her exam on August 20, 2001, since Plaintiffcomplained of a sore throat for 2 weeks. The sore throat only became persistent thereafter, therefore a diagnosis of suspected laryngeal cancer within 2 months after August 20 is within the applicable medical standard ofpractice and care under Plaintiffs circumstances. There was no unreasonable delay in suspecting laryngeal cancer.
Dr. Antonini properly suspected laryngeal cancer on October 12, 2001, and made appropriate recommendation for an ENT consultation. He reasonably expected that his recommendations would be implemented, and was not required to followup with the patient since he was only covering for Dr. Mathai. Dr. Antonini's examination on this date was within the applicable medical standard of
Page 9 of 11

Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 11 of 12
practice and care. Plaintiffs Expert Reports do not allege that Dr. Antonini breached the medical standard of care, nor do they allege that his actions in any way caused any injury to Plaintiff.
Defendants complied with the applicable medical standard of practice and care by referring Plaintiffs diagnosis and treatment for laryngeal cancer to appropriate specialists promptly, which specialists include but are not limited to: Ronald Kornak, M.D. (ENT); James Hayman, M.D. (Radiation oncologist); Christine Tsien, M.D. (Radiation oncologist); John Axelson, M.D. (Hematologist). Once Plaintiff was referred for specialty consultation for diagnosis, staging, and treatment of his laryngeal cancer, Dr. Mathai, Dr. Antonini, Dr. Hutchinson, and/or CMS reasonably relied on the recommendations and progress of the specialists. Their reliance on the specialists recommendations, and expectation that the specialists would properly and promptly work-up and treat Plaintiffs laryngeal cancer is within the applicable medical standard of practice and care under Plaintiffs circumstances. Pursuant to the applicable medical standard of practice and care, any alleged delay in Plaintiffs diagnosis and treatment caused by his specialists can not be attributed to Dr. Mathai, Dr. Antonini, Dr. Hutchinson, and/or CMS. Dr. Mathai was not responsible for Plaintiffs care and treatment while she was on maternity leave from 3/9/02 to 5/15/02, since other physicians took her place as Plaintiffs primary care physician during that time period.
The actions ofDr. Mathai, Dr. Antonini, Dr. Hutchinson, and/or CMS were not the proximate cause of any injury alleged by Plaintiff. The medical records show no evidence that Plaintiff had "Stage 1" cancer during any time in question in the Complaint. The first time that cancer was properly staged was after the completion of a CT scan and MRl at the end ofMarch, 2002. Prior to this time, any mention of staging was speculation. Plaintiff was observed with Stage ill cancer of the glottis, therefore the cancer had already metastasized5 In January 2002 when laryngeal cancer was diagnosed by Dr. Kornak, the cancer was already at Stage ill. Further, based on a reasonable degree of medical certainty, the cancer was at least Stage II from April when Mr. Broder was first seen by Dr. Mathai, through September 2001. At the time laryngeal cancer was first suspected by Dr. Antonini on October 12, 2001, the cancer was most probably Stage III. Any alleged delay by Defendants that can be reasonably attributed to Dr. Mathai, Dr. Antonini, Dr. Hutchinson, and/or CMS did not change the required treatment.
During all dates the CMS health care administrators had in place and followed policies and
5 The opinion of Plaintiffs expert Carol R. Bradford, M.D. in her report that Plaintiffs cancer progressed to Stage 4 as a result of Defendants' alleged delay is completely without merit.
Page 10 of 11

Case 2:03-cv-75106-MOB-PJK Document 157-3 Filed 05/20/2009 Page 12 of 12
procedures to review, authorize, and schedule offsite speciaJtyprocedures recommended by Plaintiffs medical primary care providers andlor specialists. These policies and procedures did not cause any delay in the diagnosis and treatment of Plaintiffs medical condition.
Dr. Mathai, Dr. Antonini, Dr. Hutchinson, andlor eMS were not deliberately indifferent to Plaintiffs serious medical needs. At all times they acted consistent with Plaintiffs best interests in treating and eradicating his laryngeal cancer. The expert reports of Plaintiffs experts constitute a difference in medical opinion concerning Plaintiff s treatment and care. Further, Plaintiff s expert reports are based on a statement offacts supplied to Plaintiffs experts that do not fairly state the facts and circumstances of this case.

July 6,2006.

~~~' Sincerely,
Silas Norman, Jr., M.D.

Page II of II

 
 ~f Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 1 of 24
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER,

Plaintiff,

vs

Case No. 0375106

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Honorable Gerald E. Rosen f/) r>T

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CORRECTIONAL MEDICAL SERVICES, INC" and its physician employees, namely: AUBERTRO

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of Corrections, namely: PATRICIA 1. CARUSO. Director, GEORGE PRAMSTALLER, Medical Director, HENRY

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DefendaIlts.

MICHIGAN CLINICAL LAW PROGRAM Paul D. Reingold (P27594) Attorneys for Plaintiff 363 Legal Research Building
801 Monroe Street Ann Arbor, MichigaIl 48109·1215 (734) 763·4319

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P37603) Brian J. Rich(arcik (P49390) Attorneys for Defendant
Correctional Medical Services, Inc. (CMS), only
40950 North Woodward Avenue, Suite 350 Bloomfield Hills, Michigan 48304 (248) 644·6326

DEFENDANT CORRECTIONAL MEDICAL SERVICES, INC. 'S MOTION TO DISMISS NOW COMES the Defendant, Correctional Medical Services, Inc. ("CMS"), only, by aIld through their counsel, CHAPMAN AND ASSOCIATES, P.C., aIld for their Motion To Dismiss purSUaIlt to Fed. R. Civ. Proc. 12(b)(6), 42 U.S.C. §1997e(a), and 28 U.S.C. 1367(a), state as follows: 1. Plaintiff is currently a prisoner illcarcerated by the Michigan Department of Corrections (MDOC).

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 2 of 24
2. Plaintiffs complaint primarily concerns allegations Defendants delayed in diagnosing and treating his throat cancer between March 2001 through April 2002, while incarcerated at the Pamell Correctional Facility.
3. Plaintiffs complaint also alleges that after April 2002, Defendants delayed in performing follow-up tests concerning his cancer treatment, and delayed in providing medical care for his "dry-mouth."
4. Plaintifffiled the present action, in part against CMS, alleging they were deliberately indifferent to Plaintiffs serious medical needs pursuant to 42 U.S.C. §1983.
5. Plaintiffalso alleges pendant state claims of: medical malpractice, negligence, gross negligence, reckless indifference, and willful and wanton misconduct.
6. Plaintiff did not fully exhaust all administrative remedies available to him by the Michigan Department of Corrections' three step grievance process.
7. Plaintiff did not file a grievance against CMS concerning the any ofthe incidents in question.
8. Pursuant to 42 U.S.C. §1997e, Plaintiff is required to exhaust his administrative remedies against CMS before filing the present action.
9. Because Plaillti ff filed the present complaint against CMS wilhout having exhausted administrative procedures available to him concerning all claims and all persons named in his complaint, Plainti rrhas failed to state a claim upon which reliefmay be granted and his complaint must be dismissed pursuant to Fed. R. Civ. Pmc. l2(b)(6).
10. In the event Plaintiff has stated a claim against CMS, the Court should decline supplemental jurisdiction over Plaintiffs pendant state claims, and dismiss same pursuant to 28 U.S.C. §1367(a).
11. Defendant relies on his statement of facts and arguments set forth in his supporting
brief, as if more fully restated herein.
2

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 3 of 24

WHEREFORE, Defendant Correctional Medical Services, Inc., requests this Court dismiss Plaintiff's complaint against him pursuant to 42 U.S.c. § 1997e(a) and Fed. R. Civ. Proe. 12(b)(6) for the reasons set forth herein, or in the alternative dismiss Plainti ff' s pendant state law claims, and tax reasonable costs in favor of Defendant where pennitted by law.

Dated: February 23, 2004

Chapman And Associates, p.e.

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9.

RONALD

Brian J. Ric arcik (P·49390)

Attorney for Defendant, eMS, only

40950 North Woodward, Suite 350

Bloomfield Hills, MY 48304

(248) 644-6326

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Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 4 of 24

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER,

Plaintiff,

vs

,.., Case No. 0375106

c:

Honorable Gerald E. Rosen i.n

CORRECTIONAL MEDICAL SERVICES, INC., and its physician employees, namely: AUBERTRO ANTONlNl, JOHN AXELSON, MALCOLM TRIMBLE,

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...,----._BEY, BENZIMATHAIand RAYH. CLARK, and employees and medical staiT of the Michigan Department
of Corrections, namely: PATRICIA L. CARUSO, Director, GEORGE PRAMSTALLER, Medical Director, HENRY

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GRAYSON, Warden, and JAN EPPS, Regional Medical Director

in their individual and orficiaJ capacities,

Defendants.

MICHIGAN CLINICAL LAW PROGRAM Paul D. Reingold (P27594)
Attornevs for Plaintiff 363 Legal Research Building 801 Monroe Street
Ann Arbor, Michigan 48109-1215
(734) 763-4319

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Attorneys for Defendant Correctional Medical Services, Jnc. (CMS), only 40950 North Woodward Avenue, Suite 350 Bloomfield Hills, Michigan 48304 (248) 644-6326

BRIEF IN SUPPORT OF DEFENDANT'S CORRECTIONAL MEDICAL SERVICES, INC. MOTION TO DISMISS

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 5 of 24
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................. ii - iii TABLE OF EXHIBITS ....................................................... iv
ISSUES PRESENTED FOR REVIEW ............................................. v
CONTROLLING AUTHORITY FOR RELIEF SOUGHT ............................. vi FACTS . . . . . . . . . 1 < • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • , • • • • , • , • • • • • • • ; • , • • • • STANDARD OF REVIEW ................................................... 1 - 2 ARGUMENTS:
ARGU1vlENT I: PLAINTTFFS' COMPLAINT MUST BE DISMISSED FOR FAILURE TO COMPLY WITH 42 U.S.C. §1997e(a)................................................... 2·4 ARGUMENT II: THE COURT SHOULD DECLINE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S PENDANT STATE LAW CLAIMS PURSUANT TO 28 U.S.C. §1367(a) ...................................................... 6 CONCLUSION ................................................ , ... " .... , .... 8
-i-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 6 of 24

FEDERAL CASES

TABLE OF AUTHORITIES

Pagels)

Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cir.) .................................................... 2

Baxter v. Rose, 305 F.3d 486, 488-489 (6th Cir. 2002) ............................................. 4

Borough of West Mifflin v. Lancaster. 45 F3d 780, 788 (3ii! Cir., 1995) ................................................... 7

Brazinski v. Amoco Petrol. Additives CQ" 6 F3d 1176, 1182 (iii Cir. 1993) .................................................. 7

Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.) .................................................. 4

Burton v. Jones, 321 F3d 569, 574-575 (6th Cir. 2002) .......................................... vi, 3

Carnegie-Mellon Univ. V. Cohill, 484 U.S. 343, 350 (1988) ............... " ............................... " .... 7,8

City of Chicago v Int'] Coll of Surgeons, 522 U.S. 156 (1997) ....................................................... 3,6,7,8

Conley V. Gibson, 355 U.S. 41, 54-46 (1957) ...................................................... 2

Cum V. Scott, 249 F.3d 493, 504-505 (6th Cir. 2001) ............................................. 5

Diven V. Amalgamated Transit Union Int'l v. Local 689, 38 F3d 598, 601 (D.C. Cir. 1994) ................................................. 7

Freeman V. Francis,
196 F.3d 641,645 (6th Cir.l999) ................................................. 5

Jenkins V. McKeithen, 395 U.S. 411, 421-22 (1969) .................................................... 2

Knuckles EI V. Toombs, 215 F.3d 640, 642 (6th. Cir. 2000) .............................................. 3,4

Porter V. Nussle, 534 U.S. 516, 122 S.Ct. 983,992,152 L.Ed.2d (2002) ........................... vi, 3,6

Rodriguez v. Doral Mortgage Com., 57 F3d 1168, 1177 (I" Cir., 1995) ............................................... ,.7

-ii-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 7 of 24
Ross v. Meagan, 638 F.2d 646, 650 (3d Cir. 1981) ................................................. 2 San Pedro Hotel CO. Y. Si\ity of Los Angeles, 159 F.3d 470, 478-79 (9t Cir. 1998) ................................ " ............. 7 Smeltzer v. Hook, 235 F.Supp. 2d 736, 744-746 (W.D.Mich 2002) .. " " " ' " ' ' ' ' ' ' ' ' ' ' ' ' ... '' .. ''''''' 5 Song v. City of Elvria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993) ................................................ 2 United Mine Workers v Gibbs, 383 U.S. 715 (1966) ................... " .................................. vi, 3, 6 Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976) .................................................... 1
Zinermon Y. Burch, 494 U.S. 113, 117 (1990) .................................... " ................. 1
STATE CASES Tomzek v Dwartmcnt of Corrections, 258 Mich App 222, 672 N.W.2d 511 (2003) ........... , ............................. 5
FEDERAL STATUTES 28 U.S.c. §1331 ............................................ , .................. 6 28 U.S.C. §1367(a) .......................................................... 3, 6 28 U.S.C. §1367(c) .. , ............................................. , ........... 7 42 U.S.c. §1983 .............. , .................. , ....................... vi, 1,6 42 U.S.C. §1997e(a) ........... " ..................................... vi, 2, 3, 4, 5
COURT RULES Fed. R. Civ. P. 12(b) ................... , ..................... , ... , ............. 2 Fed. R. Civ. p, 12(b)(6) ............................................... vi, 1,2,4,5
-iii-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 8 of 24 STATE STATUTES MCLA 600.5507 .............................................................. 5 MCLA 600.5507(2) .................................................... , , . , .. , . 5 MCLA 600.5507(3(b) .......................................................... 5 OTHER AUTHORITIES C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, §3567.1 (2d ed. 1984) .................................. 7
-iv-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 9 of 24

INDEX OF EXHIBITS

EXHIBIT I: EXHffiIT2-1: EXHffiIT2-2: EXHIBIT 2-3: EXHffiIT2-4: EXHIBIT 3:

Complaint Grievance Grievance Grievance Grievance Michigan Department of Corrections Policy Directive 03.02.130

-v-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 10 of 24 ISSUES PRESENTED FOR REVIEW
WHETHER PLAINTifF'S COMPLAINT MUST BE DISMISSED PLlRSUANTT042US.C.§1997eBECAUSEPLAINTIFFFAILED TO EXHAUST ALL ADMINISTRATIVE REMEDIES AVAILABLE TO HIM CONCERNING HIS CLAIMS AGAINST DEFENDANT CMS IN THE COMPLAINT. WHETHER PLAINTIFF'S COMPLAINT MUST BE DISMISSED PURSUANT TO RULE 12(b)(6) BECAUSE PLAINTIFF FAILED TO STATE A CLAIM AGAINST DEFENDANT UPON WHICH RELIEF MAYBE GRANTED. WHETHER THE COURT SHOULD DENY PLAINTIFF SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S PENDANT STATE CLAIMS PURSUANT TO 28 §U.S.C. 1367(a).
-vi-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 11 of 24 CONTROLLING AUTHORITY FOR RELIEF SOUGHT
Plaintiffs claim against Defendant CMS must be dismissed for failing to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs claim pursuant to 42 U.S.C. §1983 must be dismissed because he did not name CMS in the grievance. Further, Plaintiff did not exhaust his administrative remedies concerning all claims, against all Defendants as required by 42 U.S.C. 1997e(a). Porter v. NUBsI!;], 534 U.S. 516, 122 S.Ct. 983,992, 152 L.Ed.2d (2002), Burton v, Jones, 321 F3d 569, 574-575 (6th Cir. 2002).
Further, the court may decline to exercise jurisdiction over supplemental state law claims, where litigation of federal claims and supplemental state law claims may cause procedural and substantive problems. Sec United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
-vii-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 12 of 24
FACTS The present motion is by Con'ectional Medical Services, Inc. (eMS), only. CMS provides certain health care services to inmates incarcerated by the Michigan Department of Corrections (MDOC), pursuant to a contract between eMS and the State of Michigan. During the incidents in question, Defendants Dr. Mathai and Dr. Antonini were independent contractors with CMS, acting as primary care physicians to certain inmates incarcerated by the MDOC. Plaintiff is a prisoner currently incarcerated by the Michigan Department of Corrections (MDOC). Plaintiff alleges the incidents in question occurred between May 4,2001 (See Exhibit 1, Complaint, para. 24) through April 17, 2003 (See Exhibit 1, Complaint, para. 84) while Plaintiffwas incarcerated at the Parnell Correctional Facility. The complaint alleges the following claims against all defendants:
1) Deliberate indifference to a serious medical need pursuant to 42 U.S,c. §1983. (Complaint, para. 92 to 100)
2) Common law torts: gross negligence, reckless indifference, and willful and wanton misconduct. (Complain, para. 101 to lOS)
3) Statutory torts: Medical Malpractice, negligence. (Complaint, para. 106 to 135).
The complaint alleges no specific facts at all concerning Defendant eMS. (See Exhibit 1, Complaint, para. 23 to 84. Generally, the complaint alleges defendant CMS has a duty to implement policies and procedures to train and supervise staff and to ensure prompt and effective treatment of life-threatening disease. (See Exhibit 1, Complaint, para. 85 to 90).
Plaintiff attached four (4) Grievances to the Complaint. (Exhibit 2). Generally, Plaintiffs grievances allege ul1llamed persons delayed in diagnosing and treating his throat cancer between March 2001 through April 2002. (See Exhibit 1·2 & 1-4) The complaint further alleges that after April 2002, unnamed persons delayed in performing follow-up tests concerning his cancer treatment, and delayed in providing medical care for his "dry-mouth." (Scc Exhibit 1-1 & 1-3) While
-1-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 13 of 24
grievance no. SMT 0207008 J812DZ (Exhibit 2-3) claims to be a grievance doctors and staff in an "attached list," no list was attached to the grievance served with the complaint. CMS is not named
rr in any of Plainti s grievances.
STANDARD OF REVIEW 1. Dismissal under Rule 12(b)(6)
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations as true and construe them in the light most favorable to Plaintiff. See Zinermon v. Burch, 494 U.S. 113, 117 (1990); Jenkins v. McKeithen, 395 U.S. 411,421-22 (1969); Westlake Y. Lucas, 537 F.2d 857 (6th Cir. 1976). A complaint will not be dismissed for failure to state a claim unless it appears beyond a doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 54-46 (1957). Conclusory, unsupported allegations of constitutional deprivation do not state a claim. See Ana Leon T. y. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cif.) Courts have consistently demanded that a civil rights complaint contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed tbe plaintiffs. See Ross v. Meag,an, 638 F.2d 646, 650 (3d Cir. 1981)
Finally, a court may decide a motion to dismiss only on the basis of the pleadings. Song v. City ofElvria. Ohio, 985 F.2d 840, 842 (6th eir. 1993). The court may treat the motion to dismiss as onc for summary judgment, however, if "matters outside the pleading are presented to and not excluded by the court." Fed. R. eiv. P. 12(b).
-2-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 14 of 24
2. Supplemental Jurisdiction pursuant to 28 U.S.C. §1367(a), A court has broad di scretion to exercise its supplemental jurisdiction. United Mine Workers
v. Gibbs, 383 U.S. 715 (1966). In exercising its discretion, the Court must look to considerations of judicial economy, convenience, faimess, and comity, and avoid needless decisions of state law. Int'l Coli. of Surgeons, 522 U.S. at 173.
ARGUMENTS ARGUMENT T: PLAlNTlFF'S COMPLAINT AGAINST DEFENDANT CMS, MUST BE DISMISSED FOR FAlLURE TO COMPLY WITH 42 U.S.C. §1997e(a). Plaintiffs complaint must be dismissed because he failed to completely exhaust all administrative procedures available to him concerning allegations against defendant Correctional Medical Services, Jnc. (CMS), before filing the present action. 42 U.S.C. §1997e(a) of the Prison Litigation Reform Act (PLRA) provides: No action shaH be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, or other correctional facility until such administrative remedies are available are exhausted. The Michigan Department of Corrections uses a three step grievanc,e process. (See Exhibit 3). In Knuckles EI v. Toombs, 215 F.3d 640, 642 (6th• Cir. 2000) the court held that 42 U.S.C. §1997e(a) requires that a plaintiff exhaust all availahle administrative remedies before bringing an action under 42 U.s,C. §1983. This holding was confirmed by the United States Supreme Court in Porter v. Nussle, 534 U.S. 516, 122 S.C(. 983, 992,152 L.Ed.2d (2002) where the court held, "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." In the present case, Plaintiff's claims Defendants delayed in diagnosing and treating his throat cancer concem
-3-

--_._-_._--_._---_.._--_.__.... _.- -
Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 15 of 24
Plaintiffs medical care and are the t}pc of claims that may be grieved. See Mich. Dep't. Of Corr.,
Policy Directive 03.02.130 (Exhibit 3). The courts have required prisoners demonstrate exhaustion of administrative remedies
pursuant to 42 U.S.C. 1997e(a) by attaching to the Complaint, a copy of all relevant grievances relating to or concerning each claim in the complaint. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.) In the present case, Plaintiff attached four (4) grievances to the Complaint. However, the grievance do not mention defendant CMS at all, or the issues alleged against CMS in the complaint. In Burton v. Jones, 321 F3d 569, 574-575 (6th Cir. 2002), the Court held, the people an inmate wishes to pursue a case against must be named in Step I ofthe grievance procedure. Clearly Plainti ff has failed to satisfy the requirements set forth in Burton, since CMS is not named in any of Plaintiff's grievances. Plaintiff's grievances attached to his complaint make absolutely no allegations against CMS at all. Additionally, two of Plaintiff's grievances (Exhibit 2-3 and 2~4) contain no step III response, and therefore do not demonstrate completion of the grievance process prior to filing the present Complaint.
In the absence of written documentation, a prisoner must describe with specificity, through particular averments in the complaint, the administrative proceedings and their outcome so that the court may determine what claims, ifany, have been exhausted. Knuckles 249 F.3d at 642. Recently, in Baxter v. Rose, 305 F.3d 486, 488A89 (6th Cir. 2002), the Sixth Circuit held (hat under the Prison Litigation Reform Act, a plaintiff who fails to aIle2e exhaustion of administrative remedies throul:h particularized avermenh dQts not state a claim on which relief may be I:ranted. and
his complaint must be dismissed sua sponte. In the present case, Plaintiff's Complaint fails to
state specific averments which demonstrate the exhaustion of Plaintiff's administrative remedies concerning the claims against eMS.
Even in cases where some defendants or some claims have been exhausted in the grievance procedure, sometimes referred to as a "mixed" case of exhausted and unexhausted claims, the case
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Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 16 of 24
should be still dismissed for failure to fully exhaust all ofthe claims. Smeltzer v. Hook, 235 F.Supp. 2d 736, 744-746 (W.D.Mich 2002).
The Sixth Circuit in Curry v. Scott, 249 F.3d 493,504-505 (6th Cir. 2001) has made it clear that the requirement that a prisoner file a grievance against the person he ultimately seeks to sue does not impose a heightened pleading requirement upon would-be § 1983 plaintiffs but only implements the requirement under PLRA that the prison administrative system has a chance to deal with claims against prison personnel before those complaints reach federal court.
Remedies must be exhaustcd before the complaint is filed, not during the pendency oflhe action. Freeman v. Francis, 196 F.3d 641, 645 (6th Cir.l999). Plaintiff has not shown exhaustion through Step III or the MDOC grievance procedure as to Defendant CMS. PlaintiITpresents no evidence that he pursued (he grievance procedure in any manner against CMS. Because Plaintiffhas failed to name CMS in his grievance, and failed to allege any complaints against CMS in the grievances provided, Plaintiffs complaint against CMS must be dismissed pursuant to Fed. R. Civ. Proc. 12(b)(6) and 42 U.S.C. §1997e(a).
Plaintiffs state claims must also be dismissed pursuant to MCLA 600.5507. Like 42 U.S.C. §1997a(e), MCLA 600.5507 requires exhaustion of state remedies by a prisoner before the prisoner commences a claim concerning prison conditions. Additionally, section 5507(2) requires:
A prisoncr who brings a civil action or appeals a judgment concerning prison conditions shall, upon commencement of the action Or initiation of the appeal, disclose the number of civil actions and appeals that the prisoner has previously initiated. Failure to comply with subsection (2) requires dismissal. MCLA 600.5507(3)(b). Therefore, because Plal1,(iffdid not eomplywith MCLA 600.5507, including but not limited to subsection (2),
m Plaintiffs state claims in COWlts II and must be dismissed. See Tomzek v. Department Of
Corrections, 258 Mich 222, 672 NW2d 511 (2003).
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Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 17 of 24
ARGUMENT II: THE COURT SHOULD DECLINE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S PENDANT STATE LAW CLAIMS PURSUANT TO 28 U.S.C. §1367(a)
Plaintiffs Complaint contains three (3) Counts. Plaintiffseeks federal question, 28 U.S.c.
§1331, via the Count I only, which is a claim under 42 U.S.C. §1983. Plaintiff also requests
supplemental jurisdiction, 28 U.S.C. §1367(a), for Counts IT and m, which are state law claims.
Count 11 alleges gross negligence, reckless indifference, and willful and wanton misconduct
(Complaint, para. 101 to 105), and Count ill claims medical malpractice and negligence (Complaint,
para. 106 to 135). The Court should decline to exercise supplemental jurisdiction over Plaintiffs'
state law claims, and dismiss same without prejudice, for the reasons that follow.
Under the standard enunciated in United Mine Workers v. Gibbs, 383 U.s. 715 (1966), the
Court has broad discretion to exercise its supplemental jurisdiction. As the Supreme Court recently
held in City of Chicago v. Inn Coli. of Surgeons:
[T]o say that the terms of § 1367(a) authorize the district courts to exercise supplemental jurisdiction over state law claims... does not mean that the jurisdiction must be exercised in all cases. Our decisions have established that HN8pendent jurisdiction "is a doctrine of discretion, not ofplaintiff's right," Gibbs, 383 U.S. at 726, and that district courts can decline to exercise jurisdiction over pendent claims for a number of valid reasons, id., at 726-727. See also Cohill, 484 U.S. at 350 ("As
articulated by Gibbs, the doctrine of pendent jurisdiction thus is a doctrine of
flexibility, designed to allow courts to deal with cases involving pendent claims in
the manner that most sensibly accommodates a range of concerns and values").
Accordingly, we have indicated that HN9"district courts [should] deal with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine." Id., at 357.
The supplementaljurisdiction statute codifies these principles. After estab Jishing that supplemental jurisdiction encompasses "other claims" in the same case or controversy as a claim within the district COlllts' original jurisdiction, § 1367(a), the statute confirms the diseretionarynature ofsupplementaljurisdiction by enumerating the circumstances in which district courts can refuse its exercise:
"(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if --
"(I) the claim raises a novel or complex issue of State law,
·6-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 18 of 24
"(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
"(3) the district court has dismissed all claims over which it has original jurisdiction, or
"(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c).
Depending on ahost of factors, then -- including the circumstances ofthe particular
case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims -- district courts may decline to exercise jurisdiction over supplemental statc law claims. The statute thereby reflects the understanding that, when deciding whether to exercise supplementaljurisdiction, "a federal court should consider and weigh in each case, and at every stage of the litigation, the values ofjudiciaJ economy, convenience, fairness, and comity." Cohill, supra, at 350, 522 U.S. 156, 172-73(1997). See also San Ppdro Hotel Co. v. City ofLos Angeles, 159 F.3d 470, 478-79 (9th Cir. 1998);
Rodriguez v. Doral Mortgage Com., 57 F3d 1168, 1177 (1st Cir., 1995); Borough of West Mifflin v. Lancaster, 45 F3d 780, 788 (3rd Cir., 1995); Diven v. Amalgamated Transit Union Int'l v. Local 689,38 F3d 598, 601 (D.C. Cir. 1994); Brazinski v. Amoco petrol. Additives Co., 6 F3d J176, 1182 (7th Cir. 1993).
Therefore, in exercising its discretion, the Court must look to considerations of judicial
economy, convenience, fairness, and comity, and avoid needless decisions ofstate law. See Int'l
Coli ofSurgeons, 522 U.S. at 173; Camegie·Mellon Univ, v. Cohj1!, 484 U.s. 343, 350; Gibbs, 383 U.S. at 726; see also C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure §3567.l (2d ed. 1984).
Litigation in the federal courts involving federa1law claims together with supplemental state
law claims has caused procedural and substantive Jaw problems. Even ifthe federal and state claims
in this action arose out of the same factual situation, litigating these claims together may not serve
judicial economy or trial convenience. Because federal and state law each have a different focus, and because the two bodies oflaw
have evolved at different timcs and in different legislative and judicial systems, in almost every case
-7-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 19 of 24
with supplemental state claims, the courts and counsel are unduly preoccupied with substantive and procedural problems in reconciling the two bodies of law and providing a fair and meaningful procedure.
In the present case, as in many cases, the attempt to reconcile these two distinct bodies oflaw will dominate and prolong pre·trial practice, complicate the jury, and may very likely result in inconsistent verdicts. There may also be post-trial problems with respect to judgement interest and attorney fees.
In the present case, the apparent judicial economy and convenience to the parties' interest in the entertainment ofsupplemental state claims is offset by the problems they create. Plaintiffs state tort claims will substantially expand the scope of this case beyond that necessary and relevant to the federal claims. Thus, judicial economy, convenience, fairness, and comity weigh heavily against exercising supplemental jurisdiction in this case. See Tnt'! ColI. of Surgeons, 522 U.S. at 173; Cohill, 484 U.S. at 350; Gibbs 383 U.S. at 726. Therefore, the Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claims in Counts II and III of the Complaint.
CONCLUSION Plaintiff did not name defendant Correctional Medical Services, Inc. (CMS) in any ofthc Grievances attached to Plaintiffs Complaint. Therefore, PlaintitTs Complaint against defendant CMS must be dismissed pursuant to Rule 12(b)(6) because plaintiff failed to exhaust all administrative remedies against CMS as required by 42 U.S.c. §1997e(a). In the event the Court determines Plaintiffhas stated a claim against CMS upon which relief may be granted, the Court should deny supplemental jurisdiction over Plaintiffs state law claims in Counts II and III ofthe Complaint. Plaintiff's state tort claims, particularly the medicalmalpraclice claim, will substantially expand the scope of this case beyond that necessary and relevant to the federal §1983 claims, Thus, judicial economy, convenience, fairness, and comity weigh heavily against exercising supplemental jurisdiction in this case,
-8-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 20 of 24

WHEREFORE, Defendant Correctional Medical Services, lnc., requests this Court dismiss Plaintiff's complaint against him pursuant to 42 U.S.C. § I997e(a) and Fed. R. Civ. Proc. 12(b)(6) for the reasons set forth herein, or in the alternative dismiss Plaintiff's pendant state law claims, and tax reasonable costs in favor of Defendant where permitted by law.

Dated: Februruy 23,2004

Chapman And Associates, P.C.
BY: RONALD Brian J. Ric arcik (P-49390) Attorney for Defendant, CMS, only 40950 North Woodward, Suite 350 Bloomfield Hills, Ml 48304 (248) 644-6326

PROOF OF SERVICE

The undersigned certifies that !he fOT~going instrument Will sClVcd upon all parties to th~ aoo\'o cau!<C to each aftIle attorru:ys or purties
13, of record herein at their respective adt:!res5ts
disclosed on the pleadings on Februlll)' 2004

By:

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Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 21 of 24

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER,

Plaintift~

vs

Case No. 0375106

Honorable Gerald E. Rosen

CORRECTIONAL MEDICAL SERVICES, INC., and its physician employees, namely: AUBERTRO ANTONINI, JOlIN AXELSON, MALCOLM TRIMBLE, ___._ BEY, BENZI MATHAI and RAY H. CLARK,
and employees and medical staff of the Michigan Department of Corrections, namely: PATRICIA 1. CARUSO, Director, GEORGE PRAMSTALLER, Medical Director, HENRY GRAYSON, Warden, and JAN EPPS, Regional Medical Director in their individual and ofticial capacities,

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MICHIGAN CLINICA L LAW PROGRAM Paul D. Reinhold (P27594) Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, Michigan 48109-1215 (734) 763-4319

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Attorneys for Defendants Correctional Medical Services, Inc. (CMS), Aubertro Antonini and Benzi Mathai 40950 North Woodward Avenue, Suite 350 Bloomfield Hills, Michigan 48304 (248) 644-6326

NOTICE OF HEARING TO: CLERK OF THE COURT
PLEASE TAKE NOTICE (hat the attached Defendant Correctional Medical Service, Inc.'s Motion to Dismiss will be brought on for hearing before the Honorable Gerald E. Roscon, on a date

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 22 of 24

and time to be set by the court. Dated: February 23, 2004

Respectfully submitted:

:HAPMAN AND ASSOCI 'S;-P{.

By:

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Ronald W. apman, P-3760

Kimberley A. Koester P-48967

Attorneys for Defendants

Correctional Medical Services, Inc.

40950 N. Woodward, Ste. 350

Bloomfield Hills, MI. 48304

(248) 644-6326

PROOF OF SERVICE

The undcnignc:d cenities that the fOllo:!going in.'1trumcnt was served upon all piUlies. 1(1 1he above cause 10 each ot'the "ItQm~y$ (It t"articllI
of record hl~n:in ill lh~ir li!Sp~ctivc addrc~!>(:B dh.clo~~1.1 \:In t.h~ ple~it1~ on August 20. 2003

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Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 23 of 24

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER,

Plaintiff;

vs

Case No. 03 75106

Honorable Gerald E. Rosen

CORRECTIONAL MEDICAL SERVICES, INC"
and its physician employees, namely: AUBERTRO
ANTONTNI, JOHN AXELSON, MALCOLM TRIlvIBLE,
---,:-_-,-- BEY, BENZI MATHAI and R.,-\Y 11. CLARK, and employees and medical staff of the Michigan Department ofC,meclions, namely: PATRlCL-\ L. CARUSO, Director, GEORGE PRAMSTALLER, I'v1edical Director, HENRY
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MICHIGAN CLINICAL LAW PROGRAM Paul D. Reingold (P27594) Attomeys /')1' Plainti /'I' 363 Legal Research Building
801 Monroe Street Am1 Arbor, Michigan 48109-1215 (734) 763-4319

CHAPMAN AND ASSOCIATES. P.C. Ronald W. Chapman (P37603) Brian.l. Richtareik (P49390) Attorneys for Defendant Correctional Medical Services, Inc. (CMS). only 40950 North Woodward Avenue, Suile 350 Bloomfield Hills. Michigan 48304 (248) 644-6326

LR 7.1 (a) CERTIFICATION
Brian J. Richtarcik, being first duly sworn, deposes and states pursuant to LR 7.1(a), as attorney for Defendant, Con-ectional Medical Services, Inc., he has ill good faith attempted to confer
with Plaintiffs attorney Paul D. Reingold on February 23. 2004, in an efIort to secure tbe relicf

-

Case 2:03-cv-75106-MOB-PJK Document 8 Filed 02/24/04 Page 24 of 24

sought in DEFENDANT CORRECTIONAL MEDICAL SERVICES, INC.'S MOTION TO

DISMISS, and has heen u11successful.

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Brian 1. R c tarcik (P49390) Attorney for Defend~l1t, eMS, only.

PROOFOFSHI{VI(:H

The undersib'tled cc:rtifics that tho forog<'litlg

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 Case 2:03-cv-75106-MOB-PJK Document 84 Filed 12/20/06 Page 1 of 44

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION ____________________________________

STEVEN BRODER, vs.

Plaintiff,

File No. 03-CV-75106

CORRECTIONAL MEDICAL SERVICES, INC., et al.,

Judge Gerald E. Rosen U.S. Mag. Judge Paul J. Komives

Defendants. ______________________________________________________________________________

MICHIGAN CLINICAL LAW PROGRAM By: Paul D. Reingold (P-27594) Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319
Kevin Thom (P-36178) Assistant Attorney General Attorney for Defendants Caruso, Pramstaller, and Epps Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P-37603) Brian J. Richtarcik (P-49390) Attorneys for Defendants Hutchinson and Mathai 40950 North Woodward Ave., Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326

______________________________________________________________________________

PLAINTIFF’S BRIEF IN RESPONSE TO
CMS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Case 2:03-cv-75106-MOB-PJK Document 84 Filed 12/20/06 Page 2 of 44

Table of Contents

Statement of Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii The Legal Standard and Controlling Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Proceedings to Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

THE EIGHTH AMENDMENT AND MED-MAL CLAIMS AGAINST DR. MATHAI . . . . . . . . . . . 4

A. The Operative Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Applying Eighth Amendment Law to the Facts as to Dr. Mathai . . . . . . . . . . . . 17

C. Applying State Med-Mal Law to the Facts as to Dr. Mathai . . . . . . . . . . . . . . . . 20

II. THE EIGHTH AMENDMENT CLAIM AGAINST DR. HUTCHINSON . . . . . . . . . . . . . . . . . . . . 23

A. The Evidence from the Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. The Sweeton Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

III. THE MED-MAL PROCEDURAL ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

A. The Affidavit of Merit and the Amended Complaint . . . . . . . . . . . . . . . . . . . . . 32

B. The Specificity of the Notice of Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

C. The Affidavit of Merit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

D. The Issue of Proximate Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

IV. MR. BRODER’S MEDICAL EXPERT’S OPINION AS TO THE MED-MAL CLAIM . . . . . . . . . . 37

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Proof of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Index of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –

i

Case 2:03-cv-75106-MOB-PJK Document 84 Filed 12/20/06 Page 3 of 44 Statement of Issues Presented
1. Did the primary care physician’s late diagnosis and treatment of the plaintiff’s throat cancer violate the Eighth Amendment and the Michigan medical malpractice act?
The plaintiff says yes. 2. Did Correctional Medical Services’ policies and procedures, as implemented by its state medical director, violate the Eighth Amendment?
The plaintiff says yes. 3. Are there genuine issues of material fact as to both questions #1 and #2?
The plaintiff says yes. 4. Has the plaintiff complied with the state medical malpractice act?
The plaintiff says yes.
ii

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The Legal Standard and Controlling Authority To prevail on his Eighth Amendment claim, the plaintiff must show that the defendants were deliberately indifferent to his serous medical needs. See Estelle v. Gamble, 501 U.S. 294 (1991). As to a treating physician, he must show that the doctor was aware of his medical needs (or should have been aware of his medical needs by their obviousness) and yet failed to address them. Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004); Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002). As to a policy-maker or policyimplementer, the plaintiff must show that the constitutional harm he suffered was a result of the policies or procedures in place, amounting to deliberate indifference to his serious medical needs. See e.g., City of Canton v. Harris, 489 U.S. 378, 392 (1989). In this context, deliberate indifference can be shown by proof that the policy maker was aware that inmates “face a substantial risk of serious harm and disregards the risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). To prevail on his state medical malpractice claim, the plaintiff must show negligence – a failure to meet the standard of care – by the treating physician. MCL 600.2169. To be granted summary judgment, the defendants must show that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004).
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TABLE OF AUTHORITIES Cases Bailey v. Pornpchit, 2006 Mich. App. LEXIS 2459 (8/8/06) . . . . . . . . . . . . . . . . . . . . . . . . 35, 36 Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 18 Boodt v. Borgess Medical Center, __ Mich. App. __, 2006 WL 3085755 (10/31/06) . . . . . 33, 34 Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Carter v. City of Detroit, 408 F.3d 305 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii City of Canton v. Harris, 489 U.S. 378 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii DeMann v. Detroit Osteopathic Hospital, 2001 U.S. Dist. LEXIS 19260 (W.D. Mich. 2001) . 30 Estelle v. Gamble, 501 U.S. 294 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Derfiny v. Bouchard, 128 F. Supp. 2d. 450 (E.D. Mich. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Farmer v. Brennan, 511 U.S. 825 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, 24 Horton v. Potter, 369 F.3d 906 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Johnson v. Karnes, 398 F.3d 868 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Judd v. Heartland Health Care Center, 2001 U.S. Dist. LEXIS 21747 (E.D. Mich. 2001) . . . . 30 Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Nippa v. Botsford Gen. Hospital, 251 Mich. App. 664 (2002), 257 Mich. App. 387 (2003) . . . 30 Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Roberts v. Atkins, 470 Mich. 679, 691 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34-36 Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002) . . . . . . . . 19 Vandenberg v. Vandenberg, 231 Mich. App. 497 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 35 Zemaitis v. Spectrum Health, 2006 WL 890064 (4/6/06), leave den., 723 NW2d 830 (2006) . 35
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Proceedings to Date The plaintiff filed his notice of intent under the state med-mal statute on April 29, 2003. He filed this action under 42 U.S.C. § 1983 on December 24, 2003, along with the affidavits of merit required for his supplemental state-law claims. Correctional Medical Services, Inc., (CMS) filed a motion to dismiss on February 23, 2004. The Court dismissed the corporate defendant on September 22, 2004, based on Eleventh Amendment immunity. A week later, on September 30, 2004, the plaintiff moved to amend his complaint to add CMS’s Michigan medical director (Dr. Craig Hutchinson) in lieu of the dismissed corporate defendant. The Court granted that motion on October 20, 2004. The plaintiff filed his amended complaint on December 8, 2004. As to the defendants bringing this motion, the amended complaint was the same as the original complaint, except that Dr. Hutchinson’s name replaced “CMS” throughout the document. The pendent state-law claim for medical malpractice against the CMS contract physician (Dr. Bency Mathai) did not change at all. The defendants answered on December 29, 2004. The answer included a notice that the defense would continue to rely on the affidavits of merit (that had previously been filed) as to the state-law med-mal claim. Discovery then ensued. The parties took advantage of discovery to depose each other’s experts at length, including in-depth cross-examination regarding both sides’ affidavits of merit as to the med-mal issues. Following discovery, in September 2006, the plaintiff stipulated to the dismissal of one of the CMS contract physicians (Dr. Audberto Antonini). With all discovery concluded, on November 30, 2006, the defendants Hutchinson and Mathai moved for summary judgment. Mr. Broder now files this timely response.
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Statement of Facts The relevant facts are set forth in detail in paragraphs 4-65 of the plaintiff’s experts’ reports, attached as Exhibits 1 and 2 to this brief. Because the core issue on summary judgment is whether or not the facts – taken in the light most favorable to the plaintiff – are sufficient for a reasonable jury to find in Mr. Broder’s favor, instead of duplicating the facts here, the plaintiff will incorporate them into his argument. See Argument, Part I, below.
ARGUMENT Introduction This case involves a failure of medical care – namely the late diagnosis and late treatment of throat cancer – by the patient’s primary care physician (PCP) and the prison medical system.1 The PCP, Dr. Bency Mathai, admits that as of 8/20/01 she suspected that Mr. Broder had cancer. The plaintiff’s experts say that a reasonable internist would have tested for cancer within weeks. Although his cancer would have been detectable and could have been confirmed by tests at that time, she failed to get a confirmed diagnosis of throat cancer until five months later, and failed to start any treatment until almost eight months later. As a result, Mr. Broder spent months of constant pain and anxiety, had to undergo more invasive treatment, and suffered permanent harm as a result of the more invasive treatment. He also has a much lower chance for survival if his cancer recurs. Mr. Broder alleges that the failure of care was the fault of the PCP who failed to coordinate and to monitor his care, as well as the fault of the MDOC-CMS system, which all but guaranteed the late diagnosis and treatment. The plaintiff’s claims are narrowly drawn and straightforward. As to the PCP, Mr. Bro-
1 To distinguish the two defendants bringing this motion from the state employee defendants who will be bringing a separate motion, the plaintiff will refer to these two defendants as “the CMS defendants.”
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der says that Dr. Mathai’s failure to ensure timely diagnosis and treatment violated the Eighth Amendment and the medical malpractice act, thus giving rise both to a constitutional claim under 42 U.S.C. § 1983 and to a state-law tort claim for medical malpractice.2 Dr. Mathai, as the primary care physician, was the only hands-on doctor in a position to coordinate and to monitor Mr. Broder’s care. She is sued for what she did and what she did not do from the summer of 2001 to March 2002.
As to the CMS medical director, Mr. Broder says that Dr. Hutchinson is responsible for the systemic failure of care that proximately caused the delay in diagnosis and treatment of his cancer, giving rise to an Eighth Amendment claim under 42 U.S.C. § 1983. Dr. Hutchinson had no direct contact with Mr. Broder and did not know him. Dr. Hutchinson is sued because he was the medical director of the contract provider of health care services for all Michigan prisoners; at all relevant times he was responsible for the policies and practices governing Mr. Broder’s care.
Neither defendant needed to intend to harm Mr. Broder to be held liable under the Eighth Amendment or the state med-mal law. Nor does Mr. Broder make a respondeat superior claim. Finally, his damage claims are limited to the extra suffering caused by the delay in his diagnosis and treatment, plus some long-term effects also caused by the more invasive treatment.
The defendants’ motion should be granted only if there are no genuine issues of material fact, taking all the evidence in the light most favorable to the plaintiff. Because there are a host of factual questions, and because a reasonable jury could find for Mr. Broder on both his claims, the CMS defendants’ motion for summary judgment should be denied.
2 Following discovery, the plaintiff agrees that his state-law claims for negligence, gross negligence, and willful and wanton misconduct are subsumed under the medical malpractice statute and can be dismissed.
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I.

THE EIGHTH AMENDMENT AND MED-MAL CLAIMS AGAINST DR. MATHAI

A. The Operative Facts

Prisoner-patients have limited access to health care. They cannot schedule an appoint-

ment or go to the health clinic on their own initiative. As with everything in prison, they must

petition to have their needs met. To see medical staff, they fill out a form (a medical “kite”) or

ask cellblock staff to contact health services on their behalf. Exh. O, at 42; Exh. G, at 23-27, 52,

59. So-called “mid-levels” – nurses, nurse practitioners, and physicians’ assistants – review the

kites and provide much of the care. Exh. H, at 13; Exh. I, at 19. In 2001-02, when Mr. Broder

had cancer, there was just one primary care physician for the c. 1,200 inmates at the Parnall

Correctional Facility. Exh. H, at 15; Exh. I, at 11.

Mr. Broder did not know that he had cancer in the spring of 2001; all he could do was

describe his symptoms. He recalls describing his symptoms to medical staff in April of 2001. Exh. G, at 50, 98, 106, 110. The earliest record in his medical chart of a sore throat is 5/4/01.3

Exh. C, at 19. Mr. Broder’s sore throat did not go away. Although he was given an appointment

to return to the clinic in a month, the return visit was cancelled, and he did not see his doctor

again for 2½ months. Exh. G, at 102; Exh. C, Chart, at 19.

In the meantime, on 7/11/01, at his annual health care screening, he again presented with

throat-related problems – ongoing sinus issues and a cough lasting more than three weeks. Exh.

C, at 18. He was also worried about the fact that he was losing weight, which is reflected in the

annual screening sheet. Exh. C, at 18; Exh. D, at 3. He was not referred to a physician. He

3 Throughout their brief, the defense presumes that the only evidence in the case is what appears in the medical chart. That is, they assume that everything the patient said or did was written down accurately and completely, and that if a statement or event was not written down, then it was not said or did not occur. For purposes of their motion, however, the Court must consider all the evidence, presented by both sides, and not just the medical chart.
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continued to try (without success) to schedule a physician visit by filing kites, but the visits either were not scheduled or were cancelled. Exh. G, at 101-02; Exh. E, Letter of 8/18/01; Exh. C, at 17 (visit 8/3/01 cancelled).
On 8/18/01 he wrote a letter to health services. He described his ongoing problems as: “(1) sinus drainage and sore throat, and (2) the drastic loss of weight. The sinus problem started in about March and has not gotten any better. In fact, now it is becoming hard to swallow.” Exh. E, Letter 8/18/01. He finally saw Dr. Mathai (for the first time since 5/4/01) on 8/20/01. Regardless of whether or not a reasonable internist should have recognized that Mr. Broder might have cancer on that date, the question is moot because Dr. Mathai says that she did. Exh. H, at 48-49. She says that she was concerned about his weight loss and that she wanted to rule out prostate problems, colon or lung cancer. Id. She therefore did a prostate exam and ordered a chest x-ray. Id., Exh. C, at 17.
But she did not enter her suspicions into the file. As a result, no one looking at the file would know why she did the prostate exam (which could have been a routine age-related exam) or why she ordered the chest x-ray (which could have been due to his elevated white blood cell [WBC] count). Exh. C, at 17. Moreover, she either did not fill out the form for the chest x-ray (no form was produced in discovery), or, if she filled out the form, she did not ensure that the test occurred. In fact, she admitted that in 2001 her only system for checking to see if such a test had occurred was to look at the chart at the next scheduled visit. Exh. H at 81, 86.
But Dr. Mathai did not schedule the next visit for 60 days. Exh. C, at 17. Thus, if the lung cancer screen (the chest x-ray) were not performed for any reason, she would not catch the failure, and could not begin the process of getting the test re-scheduled, for at least 60 days. Exh. H, at 81; Exh. J, at 9; Exh. O, at 41. And if someone else happened to be on duty at that return
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visit, by looking at the file, the substituting doctor would not be able to discern that Dr. Mathai had done the prostate exam or had ordered the chest x-ray to screen for cancer, because there was no such chart entry. Exh. C, at 17.
A reasonable jury could find either (1) that Dr. Mathai did not suspect cancer and lied in her deposition to cover up her mistake – when in fact she only did a routine prostate exam and only ordered the chest x-ray because of Mr. Broder’s high WBC count, or (2) that if Dr. Mathai suspected cancer, her failure to chart her suspicions, and her failure to procure the chest x-ray, and her failure to discover that the chest x-ray was never performed, and her failure to have a process in place to catch such a mistake if it occurred, all evidence deliberate indifference under the Eighth Amendment and/or medical negligence under state law.
Dr. Mathai also had reason from the medical file to be concerned about the weight loss. Mr. Broder’s weight at his annual health screening on 7/11/01 was 156. At that time he told the nurse that he had been on the (lower calorie or less appetizing) kosher diet line, but that he had gone back to the regular diet line and had put on 8 pounds in two weeks. Exh. C, at 18. He was thus off the kosher diet and back on the regular diet by no later than 6/28/01. When he saw Dr. Mathai on 8/20/01, he had been off the problematic diet for almost eight weeks. Nevertheless, his weight had dropped six more pounds, to 150. Exh. C, at 17. Accordingly:
Q. If [Mr. Broder] complained of continued weight loss as of the end of August, we could not attribute it to the kosher diet line, based on what’s in the chart?
A. I would agree. Exh. O, Defense Expert Norman, at 30-31; Exh. M, at 102 (weight loss remained “unexplained” based on the medical record). Dr. Mathai never observed (or never charted) that Mr. Broder was still losing weight despite having been back on the regular diet for nearly two months. Exh. C.
The plaintiff’s experts say that by 8/20/01 Dr. Mathai had ample information in the file 6

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(and from the patient) to suspect throat cancer (in addition to prostate/colon or lung cancer) and
to test for it. Exh. M, at 39-40; Exhs. 1 & 2, ¶¶ 61-70. She claims that she was unaware at that
point that he was having difficulty swallowing, a key indicator of throat cancer. Exh. H, at 68;
Exh. C, at 17. The evidence, however, shows that Mr. Broder had described in detail his sore
throat since the spring, his weight loss, his increasing pain, and his difficulty in swallowing, in
his letter dated 8/18/01. Exh. E. A reasonable jury could find that a patient who took the time to
write down his symptoms two days before a visit to his PCP would describe those symptoms to
her – as he says he did, see Exh. G, at 100, 110-11 – despite the incomplete entry in the medical record. 4
More importantly, on 8/31/01 – 11 days after his visit with Dr. Mathai – Mr. Broder sent
a follow-up kite to health services. In it he said, “An existing problem with throat pain remains.
... This problem has existed since approximately March. ... Since this time it has become difficult
and painful to swallow.” Exh. E, 8/31/01 Kite. We know that the kite was received and logged
in by health services. Id. The defendant’s expert on prison medical care testified that when the
information in the kite is important to a diagnosis, it must be added to the patient’s medical record. Exh. 0, at 44-45. It was not. Exh. C.5
4 Defendants’ counsel made this point at Mr. Broder’s deposition – that having written down his symptoms on a certain day, it would only be logical that he would report those same symptoms to his PCP at his next visit. Exh. G, at 111-12. 5 On 8/31/01, Mr. Broder also prepared a formal grievance describing the same symptoms. He wrote, “This throat problem should have been corrected by this time and I should not have been subjected to intolerable pain, especially when weight loss and [a] high-blood pressure problem has also arisen during the same time frame.” Mr. Broder believes that he filed the grievance, though it was never answered – not an uncommon occurrence. Exh. G, at 74-77. Also, in a grievance he filed on 11/3/01, he noted that an earlier grievance “was either misplaced or lost, as I have not received any receipt or response.” Exh. E, 11/3/01 Grievance. In any event, none of the contents of any of Mr. Broder’s written complaints – his letter of 8/18/01, or his grievance of 8/31/01, or his kite of 8/31/01 – ever made it in to his medical file. If his doctor did not know that he was having difficulty swallowing, it was not for Mr. Broder’s lack of trying to tell her. Id.
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Furthermore, in late August and early September 2001, Mr. Broder came in to the clinic almost daily for a series of blood-pressure checks. For those visits the nursing notes show steady complaints and/or assessments of ongoing throat problems. Exh. C, at 15-16.
Accordingly, based on what Mr. Broder says he told his doctor, and based on the letter he wrote on 8/18/01, the kite he submitted on 8/31/01, the grievance of 8/31/01 (see n. 5), and the follow-up clinic visits, a reasonable jury could find that Dr. Mathai had all the information she needed to make a differential diagnosis of throat cancer and to screen for it. Yet she failed to include throat cancer as a differential diagnosis; she failed to get the chest x-ray to screen for lung cancer; and she failed to chart her suspicions of cancer at all. Even after Mr. Broder’s kite of 8/31/01and his unabated throat problems in early September, Dr. Mathai still did not screen for throat cancer. Exh. C. Reviewing his chart on 9/11/01, she failed to note that his chest x-ray had never been scheduled or performed, and she ordered no other tests to rule out cancer. Nor did she take further steps to monitor his weight. Id.
On 9/23/01, Mr. Broder wrote directly to Dr. George Pramstaller, the chief medical officer for the Michigan Department of Corrections (MDOC). Mr. Broder said,
In approximately March of this year, during a scheduled visit at health care I had appraised [sic] the doctor of sinus problems and a problem with a sore throat. The sinus problem was corrected, however, the throat pain and soreness has increased. In July during my annual health screening, once again, health care was appraised [sic] of the difficulty in swallowing and the drastic loss of weight. Blood tests were taken, along with bi-weekly blood pressure checks. The throat pain remains, as does the difficulty swallowing. Letter 9/23/01, Exh. E. This information, too, never made it into Mr. Broder’s file. Exh. C. Luckily for Mr. Broder, on 10/12/01, Dr. Audberto Antonini, a visiting physician from another facility, filled in for Dr. Mathai, who was on vacation. Dr. Antonini did a thorough history and noted Mr. Broder’s “weight loss of 20 pounds [and] progressive dysphagia since April,
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sore throat and hoarseness, ... and general malaise.” Dr. Antonini immediately suspected stomach or throat cancer. Exh. C, at 13-14. That very day Dr. Antonino filled out two referral forms requesting approval for specialty care with both ear-nose-throat (ENT) and gastro-intestinal (GI) specialists to rule out throat or stomach cancer. He marked both forms as “urgent” and he faxed them to CMS for approval the same day. Exh. D, at 10-11. He also requested another blood panel “in 2 weeks” as well as diagnostic tests, including a barium swallow and a chest x-ray. Exh. D, Physician’s Orders, at 9 & 10.
Dr. Antonini said that when he wrote “urgent” on the referral forms on 10/12/01 he “was expecting all this to happen within a month, everything.” That is, Dr. Antonini expected to get an answer – a yes or no on the cancer diagnosis – within 30 days. Antonini Dep., Exh. J at 21. Dr. Antonini said that 30 days was a reasonable time to get a confirmed diagnosis. Id., at 22. But far from having a diagnosis within 30 days, the ENT specialty care consult was not even scheduled for 30 days, and the GI consult was not scheduled for 37 days.6 Because Dr. Antonini was only filling in for Dr. Mathai for one day, however, the duty to follow-up with Mr. Broder’s care reverted to Dr. Mathai. Exh. J, at 7-10, 12. As the defense appears to concede, it was she who had to make sure that the “urgent” consults and diagnostic tests were timely completed. See Defense Counsel’s Questions, Exh. G, at 93-94; see also Antonini Dep., Exh. J, at 32-35.
On 11/1/01, Dr. Mathai reviewed Mr. Broder’s chart. All that she wrote was that he was “currently being evaluated for weight loss.” Exh. C, at 12. From this entry, it appears that she was yet unaware that Dr. Antonini had suspected throat or stomach cancer on 10/12/01 and had
6 As to the diagnostic tests, one of them – the barium swallow – was scheduled for 10/19/01, but was postponed to 10/31/01. It was not performed on that date because of equipment failures or supply shortages at the facility. Exh. E, Grievance 11/3/01.
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made urgent referrals for both.7 A reasonable jury could find that as of 11/1/01, Dr. Mathai did not know that Mr. Broder was being evaluated for cancer, because she only looked at the chart in a cursory way. A reasonable jury could find that a doctor who knew that her patient had been “urgently” referred to specialists for testing for throat or stomach cancer would not refer to the problem as “currently being evaluated for weight loss” and would not list her sole follow-up task as repeating the routine lab work for the (unrelated) elevated white blood count. Exh. C, at 12.
There is no indication in the medical chart that Dr. Mathai took any concrete steps to speed the processing of the urgent ENT/GI specialty care visits or the diagnostic tests that had been ordered by Dr. Antonini almost three weeks before, even though the referral form indicates that as of 11/1/01 CMS had not yet approved the ENT referral. Exh. D, at 14. She again missed the fact that the chest x-ray she had ordered six weeks earlier had not yet been scheduled, let alone performed. Exh. C, at 12.
On 11/3/01 Mr. Broder filed another grievance because neither the ENT/GI visits nor the tests had taken place. He wrote, “I have lost an additional 10 pounds (approximate) and have continual excruciating pain.” Exh. E, Grievance. The information in his 11/3/01 grievance was not entered into his medical file; he also noted that his earlier grievance (probably the one dated 8/31/01) and his letter to Dr. Pramstaller (of 9/23/01) still had not been answered. Id.
On 11/6/01 the barium swallow and chest x-ray (ordered by Dr. Antonini) were done and were negative for stomach or lung cancer, but an EGD test still needed to be done to rule out the stomach cancer. On 11/13/06, Mr. Broder finally saw an ENT, who found lesions on both vocal
7 Dr. Antonini’s chart entry of 10/12/01 highlighted “weight loss” on the first page, which appeared to end at the bottom of the page. To see his differential diagnosis of throat or stomach cancer, a reviewing physician would have to flip back two pages, or would have to look beyond the chart to the physician’s orders and the referral and testing forms. Exh. C, at 13-14.
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cords. Exh. D, at 15. The ENT filled out a form for biopsy surgery at Foote Hospital to be done “within 2-3 weeks.” Exh. D, at 16. On 11/16/01, Dr. Mathai reviewed and signed more blood results showing a high WBC count, but she took no steps to ensure that the biopsy surgery was in fact scheduled within the 2-3 weeks, as ordered by the ENT. Exh. D, at 17; Exh. C, at 10-11.
To the contrary, although Dr. Mathai signed the ENT’s request for biopsy on 11/14/01 (the day after he wrote it), and she approved his dictation on 11/20/01, Exh. D, at 15, she did not fax the form to CMS for approval until 11/26/01 – two weeks in to the 2-3 week period for the biopsy to be performed. Exh. D., at 16. In her 11/26 and 11/28/01 chart notes, she wrote only that Mr. Broder was “being evaluated for GI cancer” and that he will be undergoing an EGD. At this point, it was two weeks beyond the 30 days by which Dr. Antonini had expected test results (in the form of a confirmed diagnosis). She noted only that the ENT requests were “pending,” and set Mr. Broder’s next appointment for 30 days out. Exh. C, at 9.
Three days later, on 11/29/01, Dr. Mathai filled out an “Offsite Specialty 30 Day FollowUp Form” for the diagnostic tests that had not yet taken place. She checked the box on the form that said it would be appropriate to await completion of the offsite procedures. Exh. D, at 21. By not scheduling an interim visit, she guaranteed that no one would look at the patient’s file again for another 30 days. Mathai Dep., Exh. H at 81, 86; Norman Dep., Exh. O at 41. Dr. Mathai testified that Mr. Broder needed to be seen within 2-3 weeks of 11/13/01 and that she would not have filled out the form if she had known that the throat biopsy surgery was not going to be scheduled until “way out in January.” Mathai Dep., Exh. H, at 90.
CMS did not approve the biopsy until 12/5/01 – beyond the 2-3 week deadline for test results – and did not schedule the surgery until 1/11/02. Exh D, at 22. But because Dr. Mathai had already filled out the 30-day extension form, and because she had not scheduled an interim
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follow-up visit to get the case back on her docket, she could not and did not know of the delay. Indeed, she did not see Mr. Broder again until 1/2/02. From 10/12/01 to 1/11/02, there is nothing in the medical record to indicate that Dr. Mathai ever did anything with CMS or with the specialists to speed up the appointments or to get timely test results. Exh. C.
On 12/6/01, Dr. Pramstaller answered Mr. Broder’s letter of 9/23/01, about the delays in his diagnosis and treatment. Dr. Pramstaller wrote, “Further diagnostic studies have been considered and staff have taken appropriate steps in that regard…. [Health staff] are following your case closely.” Exh. E, Letter 12/6/01. Dr. Pramstaller said that if he had known that tests to rule out cancer should have been completed weeks before his reply, he would have written a different letter. Exh. F, at 73.
Dr. Mathai did not examine Mr. Broder in December and there are no notes in the chart showing she checked on the outstanding tests. Exh. C, at 9. On 12/10/01she did review another lab report about his high WBC. Exh. D, at 23. On 12/12/01, a nurse interviewed Mr. Broder in answer to his 11/3/01 grievance. He told the nurse that his cancer tests had not yet been done (even though Dr. Antonini had wanted diagnostic results by 11/13/01 and even though the ENT had wanted the biopsy results by 12/4/05). Exh. E, 11/3/01 Grievance Response. Nothing happened. Dr. Mathai did not see Mr. Broder again until 1/2/02, when she approved yet another 30day delay form (Exh. D, 30-Day Form, at 24), despite noting that the EGD test still had not been scheduled. Exh. C, at 9. The throat biopsy surgery was then scheduled for 1/11/02.
To be clear, Dr. Mathai was the only person in a position to coordinate and to monitor Mr. Broder’s care. She missed the differential diagnosis of throat cancer in August, causing a seven-week delay before Dr. Antonini saw Mr. Broder in October. Dr. Antonini ordered the appropriate referrals and diagnostic tests on an urgent basis; he expected a confirmed diagnosis
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within 30 days – by 11/12/01. Despite the urgent requests, Dr. Mathai took no steps to speed the process, or to monitor it, and a reasonable jury could find that she was unaware for a time that Dr. Antonini had even ordered the tests. Exh. C. Next, when the ENT ordered a biopsy within 2-3 weeks (that is, by 12/3/01 at the outside), Dr. Mathai did not even fax the forms to CMS for two weeks, and then she signed a 30-day form that – combined with her failure to schedule a follow-up patient visit – guaranteed that the case would not come back to her attention until early January 2002. A reasonable jury could find that by these acts and omissions Dr. Mathai violated Mr. Broder’s right to be free from cruel and unusual punishment, and that she committed medical malpractice.
On 1/11/02, Mr. Broder finally had the throat cancer biopsy surgery. Exh. D, at 25, 28-29 (pathology report), & 46 (post-dated operative report). On 1/22/02, the ENT reviewed the results with Mr. Broder and told him that he had cancer. Exh. D, at 30. Thus, although Dr. Mathai had enough information on 8/20/01 to test for throat cancer, it took her 22 weeks to get a confirmed diagnosis. On 1/22/02, the ENT submitted an “urgent” referral stating, “Needs ASAP referral to radiation oncology at Foote [Hospital in Jackson] for [cancer of the larynx.]” Exh. D, at 31. The paperwork shows that the ENT did not expect to have any further contact with Mr. Broder until his treatment was concluded; the ENT asked that Mr. Broder return for a follow-up visit after completion of his radiation treatment. Id. As Mr. Broder put it, “He told me ... he’d see me in seven weeks when the ... radiation was done.” Exh. G, at 122.
Despite a barrage of kites, Exh. E, Kites of 1/2801, 2/4/01, 2/25/01,8 & 3/26/02, Mr. Broder’s treatment did not begin for almost 2½ more months. On 1/30/02, Dr. Mathai prescribed
8 In preparing the Appendix, the kite dated 2/25/01 was inadvertently placed in the medical records, see Exh. D, at 51, rather than in Exh. E with the other grievances.
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Mr. Broder Ultram for his throat pain and Resource for his weight loss. Exh. D, at 35-36. The Ultram was not dispensed because it was an “off-formulary” request and required approval from CMS. Exh. D, Form 122, at 37. Also, not until 1/30/01 – eight days after the ENT had requested the “urgent/ ASAP” radiation treatment – did Dr. Mathai review and sign the ENT’s request form.9 Exh. D, at 34. Dr. Mathai scheduled Mr. Broder for a follow-up appointment with her in three weeks. Exh. C, at 7.
Pursuant to the request, a radiation/oncology consultation was scheduled at Foote Hospital for 2/5/02. Mr. Broder still did not have either the pain medication or the nutritional supplement that Dr. Mathai had prescribed the week before. Exh. E, Kite 2/4/02. On 2/5/02, Mr. Broder saw a radiation oncologist (Dr. Hayman) at Foote who filled out a form for radiation therapy, and who requested a follow-up appointment in 1-2 weeks. Exh. D, at 42-44; Form 409, at 45. The doctor’s expectation was that treatment would begin within the 1-2 weeks. Hayman Dep., Exh. K, at 15-16, 30.
From this point, Mr. Broder became “lost to follow-up.” Exh. D, Patient History, at 86. On 2/8/02, Dr. Mathai reviewed the form request for radiation. Exh. D, at 45. CMS approved the form on 2/12/02. Exh. D, at 48. For unexplained reasons, no date was initially set for the radiation oncology appointment. Dr. Mathai did not follow up to make sure that the form was timely sent, or that it was timely processed, or that the treatment started within the deadline set by the radiation oncologist. (CMS/patient services later scheduled the radiation targeting for 3/12/02, and the start of radiation for 3/19/02 – way beyond the 1-2 week time-frame of the re-
9 The record reflects that Dr. Mathai called patient services to ask them to schedule the radiation planning appointment for “this week.” The phone call is the only time Mr. Broder’s medical file reflects Dr. Mathai taking any direct action to expedite his treatment. Exh. C, at 7. It also shows that when a PCP took direct action, a PCP could get results: the appointment was scheduled that week.
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questing doctor.) Exh. D, at 48. Dr. Mathai did not sign off on Dr. Hayman’s dictation from 2/5/05 until 2/28/05 – long after the 1-2 week start-time for the radiation simulation appointment had passed.
On 2/13/06, the Foote Hospital oncologists submitted a form for a CT scan, to stage the cancer and to do the radiation targeting. Exh. D, at 49. The scan was apparently never approved by CMS. On 2/22/02, Dr. Mathai saw Mr. Broder. She noted in the progress notes that she did not have his chart. Exh. C, at 6.10 At that point she took no action to confirm that Mr. Broder’s targeting or treatment appointments had been scheduled or that the necessary forms had been approved. Dr. Mathai told Mr. Broder to return in three weeks and instructed him to file a kite if his treatment did not begin on 2/25/02. On 2/25 he submitted a kite. The nurse who reviewed the kite replied, “Radiation to start next week.” Exh. D, Kite 2/25/01, at 51. The radiation was not scheduled to start the next week; it did not start for more than a month. As one doctor put it, “He became rather lost to follow-up after 2/5/02 when he was seen in Radiation Therapy and it was recommended that he start treatment.” Exh. D, at 86. Another wrote, “Transportation difficulties caused him to miss his radiation follow-up, ENT follow-up, and his scheduled CAT scan.” Exh. D, at 90.
Dr. Mathai went on maternity leave on 3/8/02. There is no indication that she took any steps to make sure that Mr. Broder’s “urgent” treatment either had begun or was about to begin before she left. To that point, by her own admission, she had suspected that he had cancer for nearly seven months. It had taken five months for her to get a diagnosis, and in the 6½ weeks
10 The defendants imply that it was Mr. Broder’s fault that his chart was “out for FOIA” copying in February 2002. Defendants’ Brief, at 8. By that date prisoners were barred from using the state Freedom of Information Act, but a request had been made on his behalf. What is apparent is that there was no policy in place to make sure either: (1) that a medical file was not sent out at a critical time in the management of a patient’s care; or (2) that a second copy of the essential information was available for emergencies.
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since Mr. Broder still had not completed the pre-treatment protocols. Exh. D, at 55. After Dr. Mathai went on maternity leave on 3/8/02, things finally sped up slightly. On
that day a Foote radiation oncologist again requested a CT scan, marked “Urgent.” Exh. D, Form 407 (Clark), at 55. This was the same test that Dr. Tsien had requested on 2/13, marked “ASAP” on the form, yet it had never been authorized. On 3/12/02, Mr. Broder went to Foote for his radiation simulation/treatment planning. At that point, it appears that CMS still had not approved the requests for a CT scan, but the Foote doctors simply ignored the lack of authorization and performed the scan anyway. (The CT scan request was approved retroactively by CMS the next day. Exh. D, Form 409, at 64; Exh. D, Simulation Notes, at 55.) The CT scan showed that Mr. Broder’s cancer had spread to the epiglottis and was probably now Stage III. Exh. D, Scan Results, at 61-62. On 3/18/02, the Foote doctors requested an MRI – marked “URGENT-ASAP Please” and “STAT” – to determine more precisely the extent of the cancer and to get better pictures for the radiation targeting. Exh. D, Form 409, at 67-68. On 3/21/02, Dr. _____ Bey – Dr. Mathai’s replacement as the primary care physician in the facility – signed off the urgent MRI request, filled out the corresponding Form 407, and faxed them to CMS. Exh. D, Form 407, at 69. CMS approved it and the appointment was set for 3/27/02. Exh. D, at 71.
From 3/25/02 to 4/1/02, the Foote doctors requested several more authorizations for service. Exh. D, at 74-76, 79-80. The chemotherapist was concerned that Mr. Broder’s throat was closing to the point where he could not breathe. Exh. D, at 77.11 The MRI, done on 3/27/02, confirmed Stage III cancer. Exh. D, MRI Results, at 81-82. Stage III cancer requires chemother-
11 The transcript reads, “I am not concerned about his airway,” but the chemotherapist testified: “I think that’s a typographical error. I was – it should be, I am now concerned about his airway. I did take steps to contact the ear, nose and throat surgeon to ... verify that the airway was intact.” Axelson Deposition, at 16 (not attached as an exhibit).
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apy as well as radiation. One oncologist wrote, “I am somewhat concerned about ... the duration of this work-up in view of the natural history of the disease….” Exh. D, at 83. Dr. Tsien noted that “numerous attempts were made to expedite his CT treatment planning scan.” Exh. D, Interval Note, at 84. To sum up, even when all the players were aware that Mr. Broder had fallen through the cracks and his treatment had been inexplicably delayed, and even with Dr. Mathai out of the picture, it still took from 3/8/02 to 4/2/02 for his treatment to actually begin.
On April 2, 2002, Mr. Broder was admitted to Foote Hospital for chemotherapy and radiation treatment. Due to the need for chemotherapy, Mr. Broder was surgically fitted with a PEG tube to his stomach, to allow direct nutrition while bypassing the throat. Exh. D, at 85. The PEG tube site later became infected. Exh. D, at 88. Beginning April 2-3, 2002, Mr. Broder received seven weeks of radiation, and three rounds of chemotherapy.
Because of the delays, Mr. Broder suffered months of unnecessary pain and anxiety. His experts say his cancer went from Stage I to Stage III, requiring more invasive treatment. Exhs. 1 & 2; Exh. N, at 71-73. As a result, he suffered the effects of the treatment itself, as well as permanent dry-mouth, injury to his larynx, chronic hoarseness and weak voice, intermittent severe throat pain, dental problems related to his reduced salivation, and a much higher risk of death if his cancer recurs. Exhs. 1 & 2; Exh. N at 85-88; Exh. G, at 129, 136-41. At present he appears to be free of cancer.
B. Applying Eighth Amendment Law to the Facts as to Dr. Mathai At bottom, the defense argues that Dr. Mathai did nothing wrong because she filled out the appropriate forms.12 But a PCP’s duty is not to fill out forms, but to ensure timely diagnosis
12 Mr. Broder disputes even this, as often the forms were filled out late, or were forwarded to CMS late, or were approved late, or were not filled out and sent at all, with no follow-up by Dr. Mathai.
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and treatment of her patient. Exh. M, at 66. As the plaintiff’s expert put it, “... [S]he signed the

forms, and yet the work-up was proceeding at a snail’s pace.” Everything was “way too slow.”

Exh. M, at 54, 18. Given the system of patient care at the Parnell Facility in 2001-02 , a reason-

able jury could find that only the PCP was in a position to coordinate and monitor Mr. Broder’s

care. In the end, the buck stops with the primary care physician, who has the primary responsi-

bility, as even the defense witnesses acknowledge:

Q. What I’m asking is, it remains the primary care physician’s responsibility to make sure

that the consult occurs within the period of time that ... is appropriate for the case that’s

needed?

A. Or to – or to get an answer – or to be aware of why it is not happening.

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Q. And I take it from that, that if the period of time for the scheduling exceeds what either

the [PCP] thought was appropriate or what the specialist wrote was appropriate, then it

remains incumbent on the [PCP] to find out why there’s a delay?

A. Yes.

Exh. O, Defense Exp. Norman Dep., at 66; Exh. F, Defendant Pramstaller Dep., at 15. See also

Exh. M, at 54. In this case, the best thing that Dr. Mathai did for Mr. Broder was (1) to go on

vacation in October 2001, and (2) to go on maternity leave in March 2002. Harsh as it sounds,

only in her absence did Mr. Broder get the medical care he needed.

The controlling law in cases like this one is straightforward. Where a doctor knows the

nature and duration of the plaintiff’s condition, and knows that the plaintiff requires medical at-

tention, and fails to take steps to ensure timely diagnosis and treatment, the Eighth Amendment

standard is met. See e.g., Blackmore v. Kalamazoo County, 390 F.3d 890, 896 (6th Cir. 2004)

(viewing the facts in the light most favorable to the plaintiff, a reasonable jury could conclude

that defendants were aware of facts from which the inference could be drawn that a substantial

risk of serious harm existed and the defendants ignored that risk; defendants had a sufficiently

culpable state of mind to meet the subjective prong of the deliberate indifference test). Black-

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more stands for the further proposition that where the seriousness of a prisoner’s need for medical care is obvious, the constitutional violation is not premised upon the detrimental effect of the delay, but rather that the delay alone creates a substantial risk of serious harm. Id. at 899. Here the delay caused months of unnecessary pain and fear, more invasive treatment, and permanent harm. Exh. N, at 85-88; Exh. G, at 129, 136-41. See also Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991) (having to endure physical pain and mental anguish during the time of delayed care constitutes cruel and unusual punishment within the meaning of the Eighth Amendment); Parrish v. Johnson, 800 F.2d 600, 610 (6th Cir. 1986) (actual injury is not a necessary predicate to damages for an Eighth Amendment violation).
Moreover, an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002). A reasonable jury can conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Id. at 843. It is hard to imagine a patient with a more obvious risk than Mr. Broder – a patient whose own doctor says that she thought he had cancer on 8/20/01, but who failed to get a confirmed diagnosis for five months, and failed to start treatment for 7½ months. Where the need for medical care is obvious, care which is so cursory as to amount to no treatment at all amounts to deliberate indifference. Id. at 843-44, citing Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989).
Here, both the subjective and objective parts of deliberate indifference have been met. To satisfy the subjective component of the adequate medical care test, an inmate must demonstrate that the official in question subjectively perceived a risk of harm and then disregarded it. John-
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son v. Karnes, 398 F.3d 868, 875 (6th Cir. 2005). Here we know Dr. Mathai thought that her patient had cancer but did not get him timely diagnosed or treated. Even using the objective standard, a genuine issue of material fact as to deliberate indifference can be based on a strong showing that the need for care was objectively obvious. See Carter v. City of Detroit, 408 F.3d 305, 313 (6th Cir. 2005).
C. Applying State Med-Mal Law to the Facts as to Dr. Mathai Given that Dr. Mathai’s acts or omissions rose to the level of deliberate indifference, they necessarily include negligence. The plaintiff’s expert could not be clearer that Dr. Mathai failed to meet the requisite standard of care. “She missed the diagnosis [in August]. ... Once [cancer] was suspected, she did nothing to facilitate Mr. Broder’s getting care in a timely manner.” Exh. M, at 39. The parties agree that the standard of care is the same for those in prison as for those on the outside. Exh. O, Def. Expert Norman Dep., at 100-01. Even the defense experts agree that the delays in each phase of Mr. Broder’s case were outside of acceptable bounds. As to Dr. Mathai’s 8/20/01 suspicions of cancer, Dr. Norman testified: Q. My question is, assuming [Dr. Mathai] was concerned that [Mr. Broder] might have cancer. And at this point she identifies in her mind two kinds of cancer that could cause the symptoms that have been reported, how soon should she have an answer as to whether or the [Mr. Broder] has cancer to be within the standard of care? A. I would say certainly within a matter of days you would expect, just because of the nature of the procedure. It’s not that complicated to do. Exh. O, at 37-38. Dr. Pramstaller, the MDOC chief medical officer, said: Q. Taking her at her word, and assuming that she ... did the ... chest x-ray because she suspected that [Mr. Broder] might have cancer, ... how long is an appropriate amount of time in your view for this patient to have a result back on the chest x-ray, so that we can rule in or rule out lung cancer? A. Two or three weeks. Exh. F, at 36. Dr. Pramstaller also agreed that the responsibility remained with Dr. Mathai:
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Q. Is it fair to say that it’s the assigned doctor’s [PCP’s] job to make sure that patient gets the treatment that the patient needs? [Objection omitted.]
A. I believe so, yes.
Id., at 15.
As to the tests that Dr. Antonini ordered on 10/12/01 (expecting a confirmed diagnosis
within 30 days), and that became Dr. Mathai’s duty to follow up on as the PCP, defense expert
Norman agreed that the results should have been available “within weeks.” Exh. O, at 50-51.
Q. When you say weeks instead of months, does that mean ... four weeks or less, so that we’re using weeks instead of months?
A. I would say four to six weeks.
Id., at 52. Dr. Pramstaller concurred:
Q. I’m not asking about having someone look at him, I’m asking how long should you wait from October 12th to know whether he has cancer or not? What seems to you like the outside margin? At this point you’ve agreed [from Mr. Broder’s letter to you of 9/23/01], and Antonini has agreed in a much more vehement way two-and-a-half weeks later, laryngeal cancer is a real possibility here. So by when do we need to know whether he has it or not?
A. I would say that the longest I would be comfortable with would be eight weeks.
Exh. F, at 53. From that point it was 13-14 weeks (mid-January) before there was a diagnosis.
Regarding Dr. Kornak’s request on 11/13/01 for biopsy surgery within 2-3 weeks, we
know that surgery did not occur for two months. Dr. Pramstaller addressed exactly this point:
Q. ... you told me before that, in the end, the primary care physician has the responsibility for making sure that the care happens, and here we’ve got a specialist saying I want this operation concluded at the end of three weeks, and we know the scheduling isn’t even going to be requested until after that time has run. I want to know, how does the primary care physician monitor this to make sure that now it happens and it happens fast?
A. Well, she could monitor it through a tickler file that they keep themselves of patients they want to follow up on, or they can just walk into the other room where the CMS coordinator is and take a look at the off-site specialty book which should give you up-to-date information on that.
Q. So either of these were available to Dr. Mathai to do? A. That’s correct.
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Exh. F, at 65. Instead Dr. Mathai signed a form that allowed the case not to come back to her

attention for more than 30 days:

A. Her signing the [30-day] form, as I currently understand it and as it has been stated, moves the diagnostic procedures well past the time window recommended by the [ENT], so she could not do so without consulting with the sub-specialist.

Williams Dep., Exh. M, at 96 (emphasis added). Doing so is “outside the standard of care.” Id.

The MDOC medical director appeared to agree. Dr. Pramstaller testified:

Q. Is it appropriate at this point for her to sign a 30-day deferral form? [Objections omitted.]

A. If I was reviewing this case, I would have questions as to whether or not it was appropri-

ate, and I would probably talk to her.

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Q. If we look at the second [30-day deferral] form, this one is dated January 2, [200]. ... If it

was a problem on November 29th, is it a significantly greater problem on January 2nd?

[Objections omitted.]

A. I would have more concern over it, yes.

Exh. F, at 69.13

Regarding his own audits of primary care physicians, Dr. Pramstaller said he would ask:

A. ... did the primary care doctor, or provider ... do everything that was within their power to see that [care] got expediated [sic]. In other words, did they pick up the phone and call the specialist, did they try to change the appointment ..., did they make an effort to do that.

Exh. F, at 22. The evidence shows that none of these things occurred. The procedures may have

contributed to the lack of care, but in the end the duty was Dr. Mathai’s:

Q. ... you’re saying there is a whole procedure here, and someone is responsible for it taking too long, but the overall time is not necessarily Dr. Mathai, right?
A. I believe the bulk of ... it does fall to the primary care provider, in this case Dr. Mathai.

Exh. M, at 82-83 (emphasis added).

After Mr. Broder’s cancer was diagnosed, Dr. Mathai failed to ensure that his treatment

13 The plaintiff has submitted Dr. Pramstaller’s deposition testimony in its entirety. If the Court is going to read one attachment with care, that is probably the one to read. See Exh. F.
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went forward in a timely manner. Dr. Hayman said the outside window from diagnosis to treatment should be 4-6 weeks. Exh. K, at 40. Dr. Pramstaller and Dr. Tsien agreed. Exh. F, at 7476, Exh. L, at 48-49. The plaintiff’s experts agree. Exhs. 1 & 2. Yet Mr. Broder went from midJanuary to April 2 before his treatment began, and then it only happened because of the clamoring of the doctors at Foote Hospital. At the least there are genuine issues of material fact, so that summary judgment should not be granted.
II. THE EIGHTH AMENDMENT CLAIM AGAINST DR. HUTCHINSON A. The Evidence from the Record The claim against Dr. Hutchinson is that the procedures at Parnall Correctional Facility in 2001-02 were constitutionally deficient. The record shows that at every phase of the case – over and over again – it was impossible to get urgent care on time. The system required that any outside specialty care – both consultations and tests – had to be procured by (1) filling out the right form, (2) having it sent (typically) to the PCP for her approval, (3) forwarding it to CMS for its approval, (4) having it go to a scheduling unit to arrange for the appointment to be made, and (5) then making sure that the appointment was actually kept. See e.g., Exh. H, at 72-76. Any follow-up care required that the same steps be done again. Exh. Q. And in 2001-02 – according to Dr. Mathai – the physicians and the schedulers never consulted with each other. Exh. H., at 79. What the record in this case amply demonstrates is that forms were not filled out, or if filled out were not timely approved by the PCP, or if approved were not timely forwarded to CMS, or if forwarded were not timely approved by CMS. And even if the forms were approved, the appointments were not timely scheduled (within the limits set by the requesting doctors), and the actual appointments remained subject to cancellation due to transport problems, faulty equipment, etc. Over and over again the record shows that the prison medical system could not pro-
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vide urgent care within the time-frames of the requesting doctors. To get timely urgent care, the

doctors had to take extra measures (like personally calling the scheduling office), or had to vio-

late protocol (like doing a test without approval and getting it after the fact). Exh. C, at 7. Other-

wise nothing happened.

When nothing happened, there were no procedures in place to catch and/or to correct the

problem. The only “tickler” system was to re-schedule the patient for a clinic visit in 30-60 days.

That meant that the problem typically would not come to the attention of the PCP until the time

for results had long-since passed. It also required (1) that the follow-up appointment not be can-

celed; (2) that the same doctor see the patient; (3) that she have recorded in the file what needed

to be done, so that she (or a replacement doctor) could discover the delay or the lapse; (4) that the

PCP actually review the file at the next appointment in sufficient detail to catch the error, and (5)

having noticed the lapse, that the PCP do something about it other than approving the delay or

awaiting some future scheduling date.

Dr. Hutchinson conceded in his deposition that – absent some other intervention – under

the “next visit” system a PCP would not know until the next visit if a glitch occurred. Exh. I, at

48-49.

Q. In a situation like this where the scheduled appointment is five to six weeks beyond the date that the specialist has requested, what check or system is in place at the facility to catch that?

A. I don’t know what was in place at the facility to monitor that, to question that other than the scheduling of the patient with the primary care provider every thirty days while awaiting the delivery of the specialty service.

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Q. If she doesn’t come over and he doesn’t see her for thirty more days, isn’t it guaranteed

that if there was a problem that she is not going to know about it until we’re now roughly

four weeks passed the deadline the expert had set?

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A. Well, that’s the way the system is set up, for every thirty day visits. If she had elected to see him sooner than that she would have had that ability. But the system is set up to bring the patient back every thirty days. It’s a one size fits all thirty days. It’s not varying by the nature of the problem.
Huchinson Dep., Exh. I, at 70, 76-77. In other words, if you need urgent care, you aren’t going to get it, because the system is not designed to vary based on the nature of the problem. Dr. Hutchinson said that he “would not engineer” such a system deliberately to cause delay, id. at 80, but that is exactly what he did.
The defendants try to lay the blame for the delays at the feet of the consulting specialists, but the consistent message from the specialists is that they were powerless to set appointments. They had to submit the appropriate form and rely on the prison system to take it from there. As Dr. Tsien said, “I can’t bring [the prisoner] to my office.” Exh. L, at 19-20. She made it sound like her office noticed that Mr. Broder was late (in February 2002) and immediately began calling the prison to try to get him scheduled, with no result. Id., at 21-23. She was not aware of anyone from the prison side pressing to get the appointment made – she said she had never heard of Dr. Mathai and had never spoken to any prison doctor about scheduling. Id., at 28-30. When asked how the process worked, she answered, “I wish I knew. To this day I don’t know.” Id., at 30. A reasonable jury could conclude that in 2001-02 the system for specialty care scheduling was dysfunctional, and that Dr. Hutchinson knew it and did nothing. That is enough for liability under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Another systemic problem was that none of the written information from the patient was recorded in a way to be of use to the PCP. It is undisputed that none of the contents of Mr. Broder’s health care kites, his letters directly to the health care providers, his grievances, or his letter to Dr. Pramstaller, ever made it into his medical file. The letters to the health care providers and
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the kites to the nurses are especially egregious because the prisoner-patient has no other way to

communicate. This, too, was a systemic problem, that was the responsibility of Dr. Hutchinson.

Q. When the information in that kite relates to the prisoner’s medical condition, would you

expect the information in the kite to make it into the medical record?

A. Yes.

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*

*

Q. And if the information that the patient has written into the request doesn’t make it into the

medical record and it’s important information, in your view, does that indicate some kind

of breakdown in the system? [Objections omitted.]

A. It could indicate a breakdown in the system.

Exh. O, Defense Expert Norman Deposition, at 44-45. No information from Mr. Broder ever

found its way into his file, despite a steady stream of detailed kites, letters, and grievances all

saying the same thing. A reasonable jury could find that the kite system was also dysfunctional.

B. The Sweeton Evidence

The delays in Mr. Broder’s diagnosis and treatment were not aberrations, but were part of

a systemic failure of care with which Dr. Hutchinson was all too well-acquainted. At all relevant

times Mr. Broder was housed at the Parnell Correctional Facility in Jackson. Parnall was one of the facilities covered by the consent judgment in the long-running Hadix litigation.14 Indeed, at

the very time that Mr. Broder’s cancer remained undiagnosed and untreated, the Hadix court was

monitoring the care provided to patients with serious diseases and urgent medical needs at the

Parnall facility. Exh. P, Findings of Fact and Conclusions of Law, (2002), ¶¶ 17, 31, 33. As to

the precise issues presented by this case – timeliness of diagnosis and treatment, system-wide

failures of care and/or supervision, pervasive scheduling delays for urgent care, systematic failure

to coordinate and monitor, etc. – the Hadix court made the following determinations after a hear-

14 For a description of that litigation, see the Hadix court’s recent Findings of Fact and Conclusions of Law (Order of 12/7/06), excerpted as Exh. Q, at 1-5. Upon information and belief, Mr. Broder is a class member in the Hadix case.
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ing in May 2002, which itself was based on monitoring which occurred in mid-to-late 2001 (the
very time when Mr. Broder’s cancer was going undiagnosed and untreated):15
217. [Prisoners with Urgent and Emergent Symptoms] Based on the number and severity of incidents, their pervasiveness among the health care outcomes examined, and their serious consequences to patients in need of serious medical treatment, the Court finds that the system of access to health care did not provide reliable and timely access to care for prisoners with urgent or emergent symptoms. ...The Court finds that the existing system of access continues to violate ... the Eighth Amendment....
324. [Responses to Kites] Based on these pervasive and serious failures to timely address serious medical needs, the Court finds that the implementation of the access to health care system did not provide reliable access to care for prisoners with urgent or emergent symptoms. ...The Court finds that the existing system of access continues to violate ... the Eighth Amendment....
356. [Harm from Failures of the Health Care Access System] The failures of the health care access system have caused prisoners serious harm and inflicted unnecessary pain, suffering and loss of function.
370. In [the sample cases] and many other cases the failure to provide timely treatment created a serious and obvious risk of harm to the prisoner.
371. The Court finds that the existing system of access and its implementation continues to violate ... the Eighth Amendment....
473. [Chronic Disease: Harm to Patients from Medication Interruption] Based on the pervasiveness of [sample] incidents involving serious and preventable health consequences and unnecessary pain, the Court finds that the medical treatment for prisoners with chronic diseases continues to violate ... the Eighth Amendment....
475. [Clinical Practice: General Issues] According to Defendants’ own internal audit, during the period from October 2001 through January 2002, the performance ratings of the mid-level health staff (nurse practitioners and physicians’ assistants) ranged from a low of forty percent to a high of sixty percent. As a result of this finding, Dr. Pramstaller recommended that CMS be notified that it was in violation of its contract requirements to provide clinical supervision to the mid-level providers.
476. It is Dr. Pramstaller’s opinion that the results of the audit indicate “very poor” perform-
15 For each of the findings and conclusions, the Hadix court recited a long series of factual examples in random cases unearthed by the monitor. The Hadix court based its findings on those recitations. Exh. P, Excerpts.
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ance by the physician providers in auditing mid-level staff. 618. [Physician Supervision of Health Care: Ensuring Appropriate Levels of Clinical
Performance] The medical staff in place do not reliably perform their duties with an acceptable level of skill and expertise. 701. [Referrals for Specialty Services] MDOC met with CMS and an agreement was reached that if a 10-day requirement exists (i.e., urgent care), the paperwork turnaround must be accomplished in a day. 702. MDOC and CMS recognize that there are some specialty areas as to which appointments are scarce both in the free world and in corrections. [Discussing such scarcity-based delays] ... In those cases, it becomes the primary care physician’s responsibility for determining whether the appointment scheduling is acceptable. (Emphasis added.) The Hadix court’s findings of fact and conclusions of law are powerful evidence in support of Mr. Broder’s claim that the delays in his case were proximately caused by flaws in the health care system. The court was looking at exactly the same policies, procedures, and systems for treating prisoners with serious disease and urgent medical needs that are at issue here. The pattern of delay, failure to monitor, and failure to supervise Mr. Broder’s case is consistent with the pattern revealed in the study of similar cases, conducted at the same time and place, and involving hundreds of similar prisoner-patients. Exh. P. Dr. Hutchinson admits that the system in place then was worse than today, Exh. I, at 63, yet even today, after four more years of work, and after some significant improvements, as to these specific issues the Hadix court still finds the system to be constitutionally deficient. Exh. Q. The Hadix case provides the strongest possible evidence, because it shows that Mr. Broder’s late diagnosis and treatment were not isolated or aberrational events, and that Dr. Hutchinson had detailed knowledge of the system’s shortcomings. One of the chief targets of the Hadix court’s ire has been the policies and procedures governing urgent care in cases like Mr. Broder’s. As the Hadix court aptly said in its recent order (describing the improved version of the same
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system that was in place in 2002): Both the persuasive testimonies [of the expert monitors] demonstrate clearly and beyond peradventure that the specialty referral process is “profoundly deficient.” [Record citation omitted.] Such care is routinely delayed beyond the time medically necessary. Furthermore, the delays tend to topple one upon the other for patients with regular needs for specialty service (e.g., cancer patients). Such delays cause unnecessary death, illness and extreme suffering. In light of such record, it is clear that injunctive relief is necessary to prevent further irreparable harm to class members.
Exh. Q, ¶ 110, (emphasis added.) In sum, where another federal district court has already concluded that the policies, pro-
cedures, and health care systems in place at Parnall in 2001-02 violated the Eighth Amendment, this Court cannot grant summary judgment on the grounds that there is no genuine issue of material fact that they did not.
III. THE MEDICAL MALPRACTICE PROCEDURAL ISSUES The CMS defendants raise several procedural or technical issues of state law. A close reading of their brief, however, shows that the bulk of the text is boilerplate that – while it may apply in other cases – has little relevance here. Each issue will be addressed briefly below.
A. The Affidavit of Merit and the Amended Complaint The defense first argues that Mr. Broder’s med-mal claim must be dismissed because he failed to file an affidavit of merit with his amended complaint. Defendants’ Brief, at 23-27. Mr. Broder’s original complaint and affidavits of merit could not have been clearer that he intended a medical malpractice claim to run against his PCP for any delays in his diagnosis and treatment attributable to her. See Exh. R, Complaint; Exh. S, Affidavits of Merit. When the Court dismissed CMS as a defendant on Eleventh Amendment grounds, Mr. Broder sought and got leave to amend his complaint to add CMS’s medical director as a named defendant in its
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stead.16 No other claims or parties were changed. The amended complaint simply inserted Dr. Hutchinson’s name wherever the name CMS, Inc., had appeared in the earlier version – in all other respects it was identical.
Following discovery, the plaintiff agreed to voluntarily dismiss his claims against Dr. Antonini, who plainly was not at fault. Dr. Mathai is now the only treating physician left in the case being sued for medical malpractice. Mr. Broder filed an affidavit of merit in support of his original complaint as to her, and nothing in the amended complaint changed as to her. Indeed, in her answer to the amended complaint, Dr. Mathai adopted the defense affidavits of merit filed in response to the original complaint. Thus, Dr. Mathai and her attorneys clearly knew that she had been sued for medical malpractice, and that the core of Mr. Broder’s claim was her delay in the diagnosis and treatment of his cancer.
The defendants rely on cases that are inapposite. In DeMann v. Detroit Osteopathic Hospital Corp., 2001 U.S. Dist. LEXIS 19260 (W.D. Mich. 2001), and in Judd v. Heartland Heartland Health Care Center, 2001 U.S. Dist. LEXIS 21747 (E.D. Mich. 2001), the plaintiff failed to file an affidavit of merit with his original complaint. The courts said that the plaintiff could not cure the defect by filing the affidavit with the amended complaint. Likewise in Nippa v. Botsford Gen. Hospital, 251 Mich. App. 664 (2002), 257 Mich. App. 387 (2003), the claim was dismissed because the plaintiff never filed an affidavit of merit from an appropriate specialist, as the court found was required under the circumstances. These cases are the reverse of what happened here, where the plaintiff’s affidavit of merit was filed with the original complaint, and where the claim and the defendant did not change in the amended complaint.
16 At the same time, he dropped several doctors whose relationship with the MDOC or CMS had been unclear when he had filed his initial complaint.
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A much closer case is Derfiny v. Bouchard, 128 F. Supp. 2d. 450 (E.D. Mich. 2001) , remanded on other grounds, 106 Fed.Appx. 929 (6th Cir. 7/6/04). There the plaintiff filed timely affidavits of merit against the doctors, but did not re-file the affidavits when the case was consolidated with a case against the hospital that employed them. The district court denied the hospital’s motion to dismiss, noting that as to the hospital “the medical malpractice claim is based on a theory of vicarious liability arising out of the same acts and omissions” pled in the initial suit. Id., at 452. The court held that where the same lawyers represented both sets of defendants, and where the original affidavits stated that the doctors and the “health facility” had breached the standard of care, and where there was no prejudice to the defendants, dismissal was improper. Derfiny is a much harder case than here, because the affidavit of merit had to run against a new defendant in the consolidated cases, where here it runs against the same doctor (Mathai) as in the initial complaint.17
Citing Vandenberg v. Vandenberg, 231 Mich. App. 497 (1998), the Derfiny court also noted that the purpose of an affidavit of merit “is to deter frivolous malpractice claims.” Id., at 452. The court concluded that where, as here, the defendant and its attorneys already had notice of the plaintiff’s underlying claim, and were in possession of affidavits of merit which substantially complied with the purpose of the statute, and where the claim derived from the same acts and omissions of the same doctors as in the earlier case, the affidavits of merit were sufficient. This Court should do the same thing.
17 Although Mr. Broder’s affidavits of merit address the duties, responsibilities, and standard of care for “a health care provider,” Exh. T, he did not plead vicarious liability as to Dr. Hutchinson (nor did he get an affidavit of merit regarding the duties of a senior health care administrator). Mr. Broder has treated the claim against Dr. Hutchinson as arising only under the Eighth Amendment, for constitutionally deficient policies and practices and/or training and supervision. Accordingly, Dr. Mathai is the only defendant against whom the med-mal claim runs.
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B. The Specificity of the Notice of Intent The defense complains that the plaintiff’s notice of intent was insufficient for lack of specificity. But the standard for the notice of intent is a lenient one. As the defense notes, all that is required is that the plaintiff make “good faith averments ... consistent with the early notice stage of the proceedings.” Defendants’ Brief, at 28, citing Roberts v. Atkins, 470 Mich. 679, 691 (2004). The expected level of specificity must be considered in light of the fact that discovery has not yet begun. Id. Especially when the plaintiff is a prisoner, he often does not and cannot know with any precision who was responsible for his care. In fact, for security reasons, prisoners are intentionally kept in the dark about their appointments, and often they have no idea who is doing what in relation to their care. Exh. N, at 27. Mr. Broder’s state-law claim was (and is) about as simple as a med-mal claim can be. At bottom, his notice of intent says that his care providers failed to diagnose his cancer, then (when they thought he had cancer) failed to get confirmation for months, then (once he was diagnosed) failed to get him treated for months. Exhs. R and S. This is not rocket science. A quick look at the plaintiff’s notice of intent shows that he fully complied with the statute. See MCL 600.2912b(4). He laid out the factual basis for his claim, describing in some detail the delays in the diagnosis and treatment of his cancer. He stated the outside time frames (from discrete events) beyond which no reasonable doctor could go without being negligent. He made clear that his care providers did not ensure the timely diagnosis and treatment of his cancer, and that this was the basis for his claim. He alleged harm as the proximate result of the delays, including added suffering from the delay itself. Exh. S, at 1-5. Mr. Broder went overboard in making it clear that his notice applied “to the health care professionals, entities, and/or facilities, as well as their employees or agents, actual or ostensible,
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who were or are involved in [his] treatment” Id., at 6. He listed 15 known individuals (including Drs. Mathai and Hutchinson), as well the MDOC and the corporate provider CMS, Inc., and he asked that the notice be given “to any person (or entity) not specifically named in this notice” who reasonably might be encompassed within claim. Id. (The notice also asked for legible copies of Mr. Broder’s medical file – something he had not been able to procure to that point, with the result that much of the medical data he had – especially who had done what when – remained cryptic.)
Citing Roberts, the defense complains that the notice must identify “a specific standard of care applicable to each of the 17 different persons concerned in the NOI.” But the defendant here is just one person – the primary care physician. Reading the notice of intent, its message to her could not be clearer: that she failed to ensure that Mr. Broder was diagnosed and treated within a reasonable time. The defense wants the Court to read the notice of intent as if Dr. Mathai were unaware that she was the primary care physician responsible for Mr. Broder’s care. Relying on Roberts, the defense tries to complicate matters, and then seeks shelter in the complications of its own making.
Again, a case more on point is Boodt v. Borgess Medical Center, __ Mich. App. __, 2006 WL 3085755 (10/31/06). There, even though the notice of intent did not identify a defendant by name in describing how a certain harm was caused, the court found the notice sufficient, because the defendant would know that he was the person who performed the harm-causing surgery. In the same way, Dr. Mathai knew that she was the only primary care physician responsible for ensuring that Mr. Broder’s cancer was timely diagnosed and treated.
The Boodt court emphasized that the notice of intent must be viewed as a whole, and that no particular format need be followed. To borrow from the text of Boodt, any reader who knew
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that Dr. Mathai was serving as Mr. Broder’s primary care physician “could not help but become aware of the specific breaches being alleged against” her. Boodt, at *4.
The same is true of the alleged lack of specificity about what Dr. Mathai “should have done” differently. As the Court said in Roberts, if (for example) the notice of intent alleged that a physician amputated the wrong limb, “it would be obvious to the casual observer” that the physician should have amputated the correct limb. Boodt, at *4, quoting Roberts, at n. 12. Once Mr. Broder described the malpractice as the delay in his diagnosis and treatment, then both the breach of duty and the corrective action were obvious – that Dr. Mathai should have coordinated and monitored his care to ensure timely diagnosis and treatment. As the Boord court found, “It strains credibility to conclude that [the defendants] would not understand the nature of the suit against them on the basis of the notice of intent here.” Boodt, at *5. All of the defense arguments about the notice of intent here are of a similar ilk, and the answer to each is the same: it strains credibility to conclude that Dr. Mathai or her attorneys would not understand the nature of the suit against her on the basis of the notice of intent filed by Mr. Broder.18
C. The Affidavit of Merit The defense makes essentially the same argument as to the affidavit of merit, and the argument should fail for the same reasons. Like the notice of intent, the affidavit of merit is also filed before discovery, with the complaint, when information available to the plaintiff is limited.
18 The Boodt court did find the notice of intent deficient as to the hospital, because the notice failed to show how the hospital “had any factual involvement in the underlying events.” If the notice of intent here were arguably deficient in any way, it would be as to Dr. Hutchinson, who was substituted in for CMS in the amended complaint. Mr. Broder never submitted affidavits of merit from experts in prison medicine as to the policies and procedures designed or implemented by Dr. Hutchinson, so a state law med-mal claim – as opposed to an Eighth Amendment claim – arguably could not go forward as to him, for lack of meeting that statutory requirement. See n. 15, above.
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See e.g., Zemaitis v. Spectrum Health, 2006 Mich. App. Lexis 1087 (4/6/06) (attached), at *14; Boodt, at *5. Its purpose, too, is to prevent frivolous filings. At present, the only remaining defendant is Dr. Mathai, and since she was a general practitioner, internist, or health care provider – and since she knew that she was the primary care physician – it is hard to see how she could possibly have been confused about what the plaintiff was alleging that she did wrong, or what she should have done in order not to be negligent. As the Vandenberg court noted, “dismissal of a claim is a drastic sanction that should be taken cautiously.” Id. at 502. Mr. Broder’s affidavits fully covered the statutory waterfront, and do not warrant dismissal of his med-mal claim against Dr. Mathai.19
D. The Issue of Proximate Cause Lastly, the defense argues that the notice of intent and affidavits of merit are deficient on the issue of proximate cause. The defense again cites Roberts, as well as Bailey v. Pornpchit, 2006 Mich. App. LEXIS 2459 (8/8/06). But in both those cases the precise question was how the defendants caused the alleged harm. In one case, the plaintiff was rendered unable to have children, and in the other case the plaintiff’s child was stillborn. In both cases the court insisted that some allegation be made (beyond a general claim of negligence) to show a causal connection between the alleged negligence and the alleged specific harm. Mr. Broder’s case is quite different, because the proximate harm he alleges was having to endure the pain and suffering of his symptoms for far longer than he should have had to endure
19 The Court also should not reward the gamesmanship inherent in the defense motion. The notice of intent and affidavits of merit were filed back in 2003, at the start of the case. The defense at any time could have moved to dismiss based on the same alleged deficiencies, if it believed them to be meritorious. Instead, the defense waited until all the discovery was done – at considerable expense to everyone – and makes the motion now only because dismissal will time-bar the plaintiff’s med-mal claim. Even in a case where the notice or the affidavit of merit truly were defective, the Court might want to condition a dismissal on the payment of costs, for the unnecessary discovery occasioned by the defendants’ delay.
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them, and having to undergo more invasive treatment than otherwise would have been necessary. When the alleged negligence is the failure to timely diagnose and treat, and the proximate harm is the suffering caused as a result, there can be no “extra step” or “extra proof” required because the causal connection is direct. Similarly, if a doctor amputates the wrong arm, the plaintiff need not allege how the doctor’s negligence was the proximate cause of his injury – the nature of the claim itself eliminates the need for any such “intermediate” step. Again, what we have in Mr. Broder’s case is the opposite of the situation presented in Roberts and Bailey.
Here the defense of course may dispute whether or not Dr. Mathai was the responsible physician, or whether or not the late diagnosis and treatment resulted in added pain and suffering. But these are jury questions that have nothing to do with the framing of proximate cause in the notice of intent or in the affidavit of merit. In the same way, the surgeon accused of amputating the wrong arm might argue – long after the notice of intent and the affidavit of merit are filed – that he did not perform the surgery, or that someone else “marked” the wrong arm. These, too, can only be viewed as jury questions, and not as issues of “proximate cause” like those raised in Roberts and Bailey.
Moreover, in his notice of intent and in his affidavits of merit, Mr. Broder alleged that as a result of the delays, his cancer progressed from Stage I to Stage III. Exh. S, at 4-5; Exh. T, at 4; see also Exh. K, at 27. His experts – who volunteered to assist in this case after reviewing the file and who are not being paid by the plaintiff – maintain that position following discovery. Exh. B, at 11-13; Exh. N, at 71-73. Thus, even if “specific” allegations of proximate causation were needed in a case of this sort, they were in fact submitted. Id. Accordingly, both the issues
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of causation and harm have been addressed.20
IV. MR. BRODER’S MEDICAL EXPERT’S OPINION AS TO THE MED-MAL CLAIM
The defense’s last argument is that Mr. Broder’s medical expert’s opinion does not sup-
port the medical malpractice claim. To reach this conclusion, the defense reads the evidence in the light most favorable to the defense,21 and even then the argument does not hold water. All
that the Court has to do is read Dr. Williams’ expert report, which Dr. Williams confirms in his deposition. See Exh. 1, at 9-11, Opinions and Conclusions; Exh M.22
As to the tardy diagnosis, Dr. Williams found (1) that Dr. Mathai had enough information
to be able to make a differential diagnosis of throat cancer by the end of August 2001; (2) that
Dr. Mathai should have had a confirmed diagnosis within a few weeks; (3) that Dr. Mathai failed
to test for throat cancer and did not complete the tests that she ordered to rule out other cancers;
(4) that after Dr. Antonini saw Mr. Broder on 10/12/01, Dr. Mathai should have gotten a con-
firmed diagnosis within 30 days; (5) that after the ENT saw Mr. Broder on 11/13/01, Dr. Mathai
approved 30-day delays that extended the earliest date for a confirmed diagnosis far beyond the
20 Mr. Broder’s damage claim is not just that he had to undergo chemotherapy that could have been avoided, but also that the wider field of radiation (to treat Stage III cancer) caused added damage to his throat, voice-box, and salivary glands. Exh. N, at 85-88. He also faces a much higher mortality rate if his cancer recurs. Exh. 2. 21 For example, the medical record shows (for Mr. Broder’s 7/11/01 annual health screen) ongoing cold/ sinus problems for 2-3 weeks, and a cough lasting longer than three weeks. The defense implies that the annual screen should be completely ignored because the nurse never wrote down the magic words “sore throat.” Of course, Mr. Broder’s testimony, confirmed by his kites, letters, and grievances, is that he had a more or less constant sore throat from April 2001on, and that he tried several times between May and August to get a doctor visit. See Part I, above. 22 Since the plaintiffs’ experts’ reports were the subject of cross-examination in the depositions, and were fully adopted (at least by implication) in the depositions, the plaintiff assumes that they will be treated as the doctors’ formal opinions for purposes of this motion. To be certain that they are, the plaintiff will also submit in the next ten days short affidavits from the two experts (Williams and Bradford) adopting their expert reports as sworn statements.
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2-3 weeks that the ENT had requested; and (6) that her failure to get a confirmed diagnosis until

mid-January 2002 far exceeded the standard of care in any setting in southeast Michigan. Id.

As to the tardy treatment, Dr. Williams opines that Dr. Mathai should have ensured that

Mr. Broder’s treatment started within four weeks of the mid-January diagnosis date, and that

waiting until April 2-3, 2002, far exceeded the standard of care. The defense’s selective quotes

from the deposition notwithstanding – most of which are qualified by the expert – a reasonable

jury could find that Dr. Williams’s testimony fully supports a claim of medical malpractice.

CONCLUSION

For the above reasons, the CMS defendants’ motion for summary judgment should be

denied. The Court should find that there are genuine issues of material fact as to both the Eighth

Amendment and the med-mal claims, and should schedule the case for trial.

Respectfully submitted,

MICHIGAN CLINICAL LAW PROGRAM

Dated: December 21, 2006

/s/ Paul D. Reingold 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 P-27594 pdr@umich.edu

Proof of Service

The plaintiff’s brief in response to the CMS defendants’ motion for summary judgment, and all attached exhibits, were served using the Court’s ECF system, which will provide notice by e-mail to all counsel listed on the case caption.

/s/ Paul D. Reingold Attorney for Plaintiff pdr@umich.edu

Dated: December 21, 2006

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Plaintiff’s Index Exhibits Volume I
A. Expert report of Brent Williams, M.D. B. Expert report of Carol Bradford, M.D. C. Mr. Broder’s medical “chart” (including a more legible typed version) D. Mr. Broder’s medical records E. Mr. Broder’s grievances, kites, and related communications F. Deposition of George Pramstaller (excerpts) G. Deposition of Steven Broder (excerpts) H. Deposition of primary care physician Bency Mathai (excerpts) I. Deposition of CMS medical director Craig Hutchinson (excerpts) J. Deposition of visiting physician Audberto Antonini (excerpts) K. Deposition of consulting radiologist James Hayman (excerpts) L. Deposition of treating radiologist Christina Tsien (excerpts) M. Deposition of plaintiff’s expert Brent Williams (excerpts)
Volume II N. Deposition of plaintiff’s expert Carol Bradford (excerpts) O. Deposition of defense expert Silas Norman (excerpts) P. Findings of fact and conclusions of law in the Hadix case (2002) (excerpts) Q. Findings of fact and conclusions of law in the Hadix case (2006) (excerpts) R. Original complaint S. Notice of intent T. Affidavits of merit U. Unpublished cases

 
 Case 2:03-cv-75106-MOB-PJK Document 157 Filed 05/20/2009 Page 1 of 5

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

__________________________________________

Estate of STEVEN BRODER, by James H. Jackson,

personal representative,

Plaintiff,

vs.

File No. 03-75106

Hon. Marianne O. Battani

CORRECTIONAL MEDICAL SERVICES, INC.,

Mag. Judge Paul J. Komives

its medical director CRAIG HUTCHINSON, and

BENCY MATHAI, and employees of the Michi-

gan Department of Corrections, namely GEORGE

PRAMSTALLER, medical director, and JAN EPP,

regional medical director, all in their individual

capacities,

Defendants. _____________________________________________/
PLAINTIFF’S MOTION TO STRIKE DEFENSE EXPERT’S REPORT 1

Relevant Proceedings to Date

Early in this case, Judge Rosen dismissed the corporate defendant CMS, Inc. (R. 35,

Order of Dismissal.) In CMS’s place, Judge Rosen allowed the plaintiff to substitute the CMS

medical director, Dr. Craig Hutchinson. (R. 45, Order.) Dr. Hutchinson (along with the other

CMS defendant Dr. Mathai) hired expert witnesses who duly issued their reports and were de-

posed by the plaintiff in 2006. At that time, the issues in the case were limited to whether or not

Mr. Broder’s 2001-02 cancer was timely diagnosed and treated, and whether or not any delays in

his diagnosis and treatment were attributable to the medical policies or practices authorized or

implemented by CMS through the person of Dr. Hutchinson. Discovery as to those issues ended

in 2006, well before the defendants moved for summary judgment.

In late 2007, the plaintiff moved to re-instate CMS, Inc., as by then new case law had

1 The plaintiff sought the concurrence of CMS’s counsel before filing this motion, but no response was forthcoming.

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made it clear that CMS should not have been dismissed. (R. 109, Pl’s Motion to Re-instate.) In March 2008, the Court denied the CMs defendants’ motion for summary judgment. (See R. 113, Opinion and Order.) The Court also re-instated CMS, Inc., as a party-defendant. (See R. 114, Opinion and Order.)
Proceedings Since 2008 In early 2008, Mr. Broder was again diagnosed with throat cancer. The new question presented (for purposes of this case) was whether or not the 2007-08 cancer was the same as (or was directly linked to) the 2001-02 cancer, and thus could be attributed to the alleged 2001-02 medical malpractice of Dr. Mathai or the deliberate indifference of the other defendants. At a court hearing in 2008, the Court re-opened discovery on that new issue, and set schedules for expert reports and depositions limited to that issue. At that hearing, the attorney for CMS, Inc., also asked that CMS, Inc., be allowed to procure a new expert as to the claim against the newly re-instated corporation – namely on the question of whether or not the 2001-02 delays in Mr. Broder’s diagnosis and treatment were attributable to medical policies or practices authorized or implemented by the corporate defendant CMS, Inc. The plaintiff objected to this request, on the grounds that CMS, Inc.’s interests and the interests of its medical director Dr. Hutchinson were perfectly aligned. (In fact, the first report had referred to “Dr. Hutchinson and/or CMS” nearly every time Dr. Hutchinson was mentioned. See Exhibit 1.) The plaintiff argued that whatever the first expert had said about the CMS policies and practices could and should be used by the re-instated defendant CMS., Inc., because as to those policies and practices, CMS and its medical director were indistinguishable. The plaintiff was concerned that CMS, Inc.’s request for a new expert to protect its separate interest was
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simply a way to get a second bite at the apple with a new and better defense expert.2 Defense counsel responded that because CMS, Inc., had been out of the case at the time
the “corrections medicine” expert had issued his report and had been deposed, the corporation – as a separate entity – should have the right to hire its own expert as to its policies and practices.
The Court agreed and ordered that CMS, Inc., could get its own corrections medicine expert. (R. 132, Order.)
Argument On May 15, 2009, the new expert’s report was filed. (See Exhibit 2, attached.) Instead of being limited to CMS, Inc., however, the new report was filed on behalf of all three CMS defendants – CMS, Inc., Dr. Mathai, and Dr. Hutchinson. Just as the plaintiff feared, the report is plainly intended not to supplement the earlier expert report of Dr. Norman (filed on behalf of Drs. Hutchinson and Mathai), but to replace that report entirely. Far from being limited to the alleged interests of the separate legal entity CMS, Inc., the new report goes far beyond CMS’s corporate policies and practices – that defense counsel said existed apart from the interests of the other doctors – and focuses as much on the acts or omissions of Dr. Mathai and Dr. Hutchinson (as well as other non-CMS treating physicians). At bottom it is a report that re-argues the liability of the individual defendants. The two reports are strikingly similar in this regard. Indeed, putting them side by side, it is hard to see why a separate report was needed at all.
22 On cross-examination, the first defense expert on prison policies and practices (Dr. Norman) had agreed with the plaintiff about some of the deficiencies in the prison medical system, as well as about the tardiness of Mr. Broder’s diagnosis and treatment. Indeed, the defense expert supported the plaintiff’s case enough that he confirmed the decision that no plaintiff’s expert on prison policies and practices was necessary.
3

Case 2:03-cv-75106-MOB-PJK Document 157 Filed 05/20/2009 Page 4 of 5

Moreover, the last two pages of the report go to “standard of care” issues that are only

implicated by the state-law medical malpractice claim against Dr. Mathai individually. There is

no medical malpractice claim in the case against CMS, Inc., that would require an expert’s report

on that issue.

If the plaintiff had known that discovery was to be re-opened entirely as to all issues

facing all CMS defendants going back to 2001-02, then he would have asked for the comparable

right to get a plaintiff’s expert report on prison policies and practices or “corrections medicine.”

If the new expert report is to be accepted, then the plaintiff should be given that right, now.

But looking at the two expert’s reports side by side, the Court can see that in fact there

was no need for a second report at all, other than to substitute a different defense expert for all

three CMS defendants. Accordingly, the Court should strike the new “corrections medicine”

report of Dr. Barth.

Conclusion

For the above reasons, the plaintiff asks the Court to strike the new expert’s report as

contrary to the reasons given for why a “separate” report for CMS, Inc., was needed in the first

instance, and as beyond the scope of what the Court ordered (solely for CMS, Inc.) in granting

its request for a separate report. (See R. 132. Order.)

Respectfully submitted,

Dated: May 20, 2009

s/ Paul D. Reingold Michigan Clinical Law Program 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu – P27594

4

Case 2:03-cv-75106-MOB-PJK Document 157 Filed 05/20/2009 Page 5 of 5 Index of Exhibits
1. Dr. Norman’s original report for Hutchinson and Mathai 2. Dr. Barth’s new report for CMS, Inc., Hutchinson, and Mathai
Proof of Service On May 20, 2009, the above motion to strike, together with the attachments and this proof of service, were filed using the court’s ECF system, which will send e-mail service to all counsel of record.
s/ Paul D. Reingold Attorney for Plaintiff (734) 763-4319 pdr@umich.edu – P27594
5

 
 • 1r

j

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 1 of 43

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER.,
\'9.

Plaintill;

CORRECTIONAL MEDICAL SERVICES, INC.,

and its physician employees, namely:

AUBERTRO ANTONINI, JOHN AXELSON,

MALCOLM TRIMBLE,

BEY,

BENZI MATIIAI, and RAY H. CLARK;

and employees and mcdicailltaff of the Michigan

Deplll1:J:nent of Corrections, namely:

PATRICIA L. CARUSO, director,

GEORGE PRAMSTALLER, medical director,

HENRY GRAYSON, warden,

and JAN EPPS, regional medical director;

in their individual WId officiul capacities,

Defendants.

File No. 03-75106 Hon. Gerald E. Roscn Mag. Judge Paul J. Komives

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PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT CMS'S MOTION TO DISMISS

MICHIGAN CLINICAL LAW PROGRAM By: Paul D. Reingold 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319
Beth Blackwood, Matt Pryor, Sharon Ceresnie, and Rob McHenry Student Attorneys

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 2 of 43
. -

Table of Contents

Index of Authorities ................................................................................ .ili

Issues Presented ..................................................................................................... iv

Standard of Review and Controlling Authority .................................................iv

Introduction ........................................................................................... 1

STATEl'v1ENT OF FACTS ......................................................................... 1

1. Facts Regarding Administrative Exhaustion ............................................ l

2. Facts Regarding Supplemental Jurisdiction ............................................. 7

ARGIJMENT.......................................................................................... 7

1. THE PLAINTIFf HAs EXHAUSTED HIS ADMlNISTRATIVE REMEDIES ............................ 7

A. Mr. Broder Appealed All of His Grievances to the Final Stage..............8

13. Mr. Broder Attached Proof of Exhaustion to His Complaint.................9

C. CMS Was Properly Named andiorldentified in the Grievances............ iO

D. The Sixth Circuit Has Rejected the Total Exhaustion Rule .................. 11

E. 'Ibe Plaintiffs Inadvertent Failure to Comply with MCL 600.5507(2) Should Be Excused Because He Has Filed No Previous Cases.............. 12

II.

THE COURT SHOULD KEEP MR. BRODBR'S PENDANT STATE-LAW CLATMS.......... 12

CONCLUSION....................................................................................... 16

Index ofExllibits .. ,.................... t, •••••••••••••••••• ;" •••••••••••••••••••••••••••••••••••••••• ....

Proof of Service....................................................................................... --

ii

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 3 of 43
. .
Table of Autborlties Cases Ahearny. Charter Township of Bloomfield. 100 F.3d 451 (6th Clr. 1996) Blakely v. United States. 276 F.3d 853 (6th Cir. 2002) Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998) C!lIJ)e!li1l Millon Uniy. v, Cohill, 484 U,S. 343 (1988) City of ChiCWoIQ V. Int'! ColI. Qf Surieons. 522 lJ ,S, 156 (1997)
Conley v. Gibson. 355 U.S, 41 (1957) FreemWl v. Francis. 196 F.3d 641 (6th Clr, 1999)
Hart~field y, VidQr, 199 F.3d 305 (6th Cir. 1999)
Knuckles El v. Toombs. 215 F.3d 640 (6th Cir, 2000)
McElhaney v. Elo, 230 F.3d 1358 (6th Cir.2000) (unpublished) (attached lIS Exhibit C) Porter v, NlL~sle, 534 U.S. 516 (2002) Quackenbush v. Allstate Insycaucc CQ., 517 U.S. 706 (1996) Riley v. Richards. 210 F.3d 372 (6th Cir. 2000) (unpublished) (attached lIS Exhibit D)
United Mine Workers of America v, Gibbs, 383 U.S. 715 (1966).
Hill V. Howe. 2000 WL 973672 (E.D. Mich., Jun. 27, 2000) (attached as Exhibit E) Obeid y. MeridiWl Automotive Systems. 296 F. Supp. 2d 751 (E,D. Mich. 2003) Smeltzer v. Hook. 235 F. Supp. 2d 736 (W.O. Mich. 2002) Zinermon y, Burch, 494 U.S. 113 (1990)
Statutes 42 U.S.C. § 1983 Prison Litigation Reform Act of 1995, MCLA 600.5503(1) 28 UB.C. § 1367(a)
iij

. .

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 4 of 43

ISSUES PRESENTED
I. Did the plaintiff exhaust his administrative remedies under 42 U.S.C. § I 997c(a) and MCL 600.5503(1)7
The plaintiff ~ayH yes. The defendant says no.
2. Should the Court retain supplemental jurisdiction over the plaintiff's pendant state law claims pursuwt to 28 U.S.c. § 1367(a).
The plaintiff says yes. The defendant says no.

STANDARD OF REVIEW and CONTROLLING AUTHORITY In deciding a 12(b)(6) motion to dismiss, a court must accept aU of the plaintiff8
allegations as true and construe them in the light most favorable to the plaintil1'. Zinermon v. Burch, 494 U.S. 113, 117 (1990). A 12(b)(6) motion should not be wanted "unless it appears
beyond doubt that the plaintiff cw prove no set of filets in support of his claim which would
cntitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A. Exhaudion of Administrative Remcdiell
Prisoners must exhaust all administrative remedies "as are available" before filing a civil rights action concerning c.onditions of confinement. See 42 U.S.c. § 1997e(a). When exhaustion is required, "a prisoner mu.~t ... show that [administrative remedies] havc been exhausted by
attaching II copy of the applicable administrative dispositions to the complainl." Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2002). The exhaustion requirement is intended to give
defi:mdant8 the opportunity to respond to the pri~oner's allegations RIld to take corrective action.
See Porter v. Nlissle, 534 U.S. 516, 524-525 (2002), Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999), and Bllrton v. JomM, 321 F.3d 569, 575 (2003). Here the plaintifffilcd four separate

iv

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 5 of 43
grievances and pursucd all of them 10 the final (Step nI) stage. The grievances laid out the pJaintiff's complaints about his medical care in detail, a.nd they were properly attached to his complaint. Therefore the motion should be denied.
8. Supplemental JurLsdlctlon A federal court should exercise supplemental jurisdiction over state law claims when the state law claims arise from the same case or controversy as the claim with original federal jurisdiction. See 28 U.S.C. § 1367(a) ("The district courl~ shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.") Claims form part ofthe same case or controversy when they "derive from a common nucleus of operate facts." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966); Ahearn v. Charter Towmhip ofBloomfield, 100 F.3d 451,454·455 (6th Cir. 1996); Obeid v. Aferidian Automotive Systems, 296 F. Supp. 2d 751, 753 (E.D. Mich. 2003). In the present case the facts that form the basis for the plaintift"s federal claims are idcntica.l to the facts that form the basis for his state law claims. Supplemental jurisdiction is therefore proper. This part of the motion should be denied as well.
v

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 6 of 43
Introduction Steven Broder is It prisoner in the elliltody of the Michigan Department of Corrections (MDOC). His complaint alleges that the defendants failed to timely diagnose and treat his throat cancer. His federnl claims, brought under 42 U.S.C. § 1983, are for violations of Ills Eighth Amendment rights, for the defendants' delibernte indifference to his reasonable medical needs. His overlapping state law claims are for medical malpractice/negligence, and gross negligence and willful wanton misconduct (what Michigan sometimes calls reckless indifference), arising out of the same delays in diagnosis, treatment, and al\ercare. Mr. Broder seeks damages and iJ:Uunctive relief: The de1(mc:!ant Correctional Medical Services (CMS) is the MDOC's managed care provider. CMS moves to dismiss on the grounds that Mr. Broder failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e (a). CMS also asks the Court to deny supplemental jurisdiction and to dismiss Mr. Broder's state law claims, so that they may be heard in state court instead of here. For the reasons set forth below, Mr. Broder opposes the motion to dismiss on both grounds, and asks that it be denied.
STATEMENT OF FACTS A. Facts Regardlnl: Administrative Exhau8tion Mr. Broder filed four Sllparattl MDDe grievances challenging the delays in his carll and the quality of his care. He appealed all four grievances through to the fmal (Step ITT) level. The four grievances are described below.! 1. The Flnt Grievance On November 3, 2001, Mr. Broder tiled his first grievance for inadequate trealment. The
I All ofthe grievances were attached to the complaint and were reproduced ILS attachments to eMS's brief. To avoid lidding a third copy to tho Court file, we will refer by number to the eMS oxhibitq.

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 7 of 43
grievance described his dilllculty in swallowing, his weight loss, and his persistent sore throat. (eMS Brief, Exh. 2-4.) In the Step I grievance, Mr. Broder asked why the ovaluations with an ear, nose and throat (ENT) specialist and a gastroenterologist, which he was told would be sche-
duled, had not yet occurred. Id. He concluded the Step 1 grievlIDce form by stating thaI becalBe
o/'the delays, "1 have lost an additional 10 pounds (approximate) and have continual excruciating pain. I simply write this grievance to docwnen( (he situation and attempt to eliminate any further delays in my medical treatment" Jd
MODe received this grievlIDce on November S, 2001, but did not respond until Decem-
ber 8, 2001, by which time Mr. Broder had already filed a Step II grievance appeal. Id. In the
Step I responstl, SMT Health Care wrote thal it was "at present time awaiting the appointment dates for these procedures that welre requested," and directed Mr. Broder to "discuss appointment
with [bis] medical service provider at next visit." Id. Mr. Broder received confirmation of
MDOe's receipt of his Step II appeal on December 4, 2001, and was assured he would receive a
response by December 25,2001. Id. Mr. Broder, however, did not receive a response to his Step
" appeal until February 5, 2002, which again said, "we are currently awaiting for the appoint-
ment dates for the requested procedures." Id. Meanwhile, on December 25, ailer not receiving
an answer to his Step II appeal, Mr. Broder med a Step III appeal, citing as his basis for the appeal "continual pain, breathing and swallowing difficult, in addition to losing almost 30
pounds since March." lIe again requested the promised procedures. Id.
Aller waiting for a response for over a month, on January 27, 2002, Mr. Broder mailed a letter to the Director's Office at MDOe in Lansing telling the Director that "on or about December 25,2001" he hud mailed his Step III grievance to the Director's Office for review, and never received a response. Mr, Broder attached another eopy of his Step III grievance appeal and re·
2

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 8 of 43
quested a response. ld. Despite his efforts, Mr. Broder has never received a response to this letter or to his original Step II [ grievance appeal.
2. The Second Grievance Mr. Broder tiled a second grievance on July 12,2002. (CMS Brief, Exh. 2-3.) In this gTIllvance, Mr. Broder, who had spent much of April, May, and June 2002 in the hospital, wrote that the diagnosis and treatment of his cancer had been in violation of MDOC Policy Directive 03.04.100. lIe also said that his grievance was intended to run against "any and all illdividuuls or ofganilJltions involved in the diagnosis, treatment, referral of my condition." ld. Mr. Broder attached to the grievance a list ofthe people/agencies who (to the best of his knowledge) had in any way figured in his diagnosis, treatment, or aftercare to that point. The list included 37 nanled individuals plus "Any and atl relevant CMS personnel" and "Any and all relevant MDOC personnel." See Exhihit A, attached.2 Mr. Broder's Step I grievance was re:ceived by MDOC on July 15,2002. He was assured that a response would be given by August 5, 2002. Again the: Stop I response was late; it did not reach Mr. Broder until August 14,2002. In the Ste:p I response, an MDOC Health Unit Manager wrote that U[d]ue to thtl C.M.S. approval process the inmate was scheduled proeednres perfonned [.vic j, diagnosed with Laryngeal cancer and Radiation/Chemo therapy i.nitiated within a 5 month span, .. .it is unavoidable that there will be: a lapse of time between referral and appointment dates," and that "healthcare stafI'responded to kited requests for henlthcarc assistance within the appropriate tinle frames." ld By the time tho Step I response: reached Mr. Broder, though, he: had filed a Step II appeal (scnt on August 7, 2002) because the: tinle specified by the Step I grievance roceipt form had , This list was inadvertontly loft off the second grievanco whon the four grievllllces wero filed with th~ plaintiffs complaint. See Complaint, Exhibit~. But the list was attachcd to tho actual grievanc~ when it was filc:d with MDOC on July 12, 2002; indeed, it was spocifically roferencc:d in the text of tho grievance:.
3

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 9 of 43
passed and he had ~till not received a response, On August 9, 2002, Mr, Broder received confumation from MDOC of the receipt of his Step II grievance appeal and he was told he would receive a response no later than August 30, 2002, Jd. He did not receive a response until
December S, 2002. In that Step II response, Regional Health Administrator Jan Epp wrote to Mr, Broder, "You were interviewed and a response was provided to you in a timely manner." Id. (In fact, the Step I respouse was nine days late and the Step II response was more than 95 days lute,)
Because the Step II response (December 5, 2002) was so late, Mr. Broder had already filed a Step TIl appeal stating he had not yet received a Step II respolllle, and that "G·rievant's medical treatment and diagnosis [were] neither 'timely' lnor] provided in a 'humane' way." Id. As with the first grievance, Mr. Broder received no response to his Step III appeal.
3. The Third Grievance Mr. Broder's filed his third Step J grievance on March 1,2003. (CMS Brief, Exh. 2-2.) This grievance requested a response as to why his ENT specialist's (Dr. Kornak's) instruction that Mr. Broder receive another throat scope (vocal cord stripping and biopsy to be done within <I few weeks of October 2002) had not yet been followed. Mr. Broder cited PD 03.04. J00, which requires henlthcart.l staff to gchedule specialty services within live busintlss days from the order ofa medical services provider. Id. On March 10,2003, Mr. Broder received a letter from Jan Epp saying MDOC had recoived his Step I grievance tom and that Mr. Broder would have a reSpOnHtl no later than March 31, 2003. Id. On March 13, 2003, Mr. Broder met with RN Supervisor Peggy L<:e who then wrote a memorandum to the grievance coordinator afllrmlng Mr. Broder's claim that his requested procedures had been approvtld but he was still awaiting scheduling. Jd. Lee wrote that because she had notified the schedulers, the grievance hud been taken care of Id.
4

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 10 of 43
On March 27,2003, however, Mr. Broder filed a Step II grievance appeal arguing that the Step I response hud failed to address his question as to why a two-week promise for follow-
up treatment had taken six months to schedule. Id. On May 5, 2003, Mr. Broder received a Stcp II response written by Jan Epp stating that "the specialist may have told you it would only be 2
weeks, however, the process that is required is for this request to go to eMS first for denial or
approvaL ..." Id. Because the 30-day response time had passed since Mr. Broder filed his Step II appeal and he had not received a Step II response, Mr. Broder again filed a timely Step III appeal
on April 28, 2003, requesting an explanation for why medical services were not accessible and timely as required in Policy Directive 03 .04.1 00, fd.
This time, more than six months passed before Mr. Broder received a Step III response. On November 7, 2003, Mr. Broder received this Step III response from 11m Annstrong which stated that the "grievance was processed ... according to the provisions of Policy Directive 03.02.130." Armstrong said that "Grievant's medical treatment is in accordance with PJD03.04.101" and thut "staff properly responded to this grievance." [d. Annstrong denied the appeal.
4. The Fourth Grievance
Mr. Broder's fourth and fmal grievance (see eMS Briet~ Exh. 2-1) was filed on April 22, 2003, while the third grievance was awaiting a Step II response. The fourth grievance tocnsed on the inadequate post-chemotherapy treatment Mr. Broder had received. In the Step I grievance
form, Mr. Broder wrote that he was not lntonncd that a side effect of the chemotherapy (loss of
the ahility to salivate) could lead to tooth decay. fa. Mr. Broder requested an answer as to why
it took eleven months tor a doctor to prescribe the drug Salagen to help with his salivation problems. fd. Also, Mr. Broder wrote that he was still awaiting follow-up visits (for radiation
5

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 11 of 43
oncology, biopsy, and vocal cord stripping) that were the subject orhls third grievance. Id. Mr. Broder noted that he had suffered months (lfpain hei'(lnl his diagnosis, months more of pain and
anxioUllness awaiting approval of his cancer treatment, and then months more waiting for the
aftercare that his ENT specialist told him he should =:eive. ld. Mr. Broder's Step Tgrievance form was received on April 24, 2003, at which lime Mr.
Broder was informed that he could expect a Step I response no later than May 15, 2003. 1d. The Step I response, however, did not arrive until July 21, 2003. In that response, Peggy Lee wrote
that because the operation and chemotherapy had been done outside the hospital, he would have received follow-up care and been made to sign an understanding of the procedure before the operation. Also, she recommended that Mr. Broder bring up his issues with his RNT specialist at the: next scheduled meeting. 1d.
Due to the: three-month delay in receiving a Step 1 response, Mr. Broder filed a Step II appeal on May 20, 2003, citing as reasons for the appeal the failure to get the Step 1 response, and, on the merits, not having seen hi~ radiation oncologist as instructed. 1d. On June 10,2003, Mr. Broder received a Step II response: that merely ~tated that becaUllc of the severity of his dental problems, Mr. Broder would meet with the Region III Dental Director to determine a
treatment plan. rd. Because there was no attached explanation regarding the delay in prescribing
Salagen for Mr. Broder's salivation problems or regarding the delay in the follow-up appointment with his radiation oncologist, Mr. Broder filed a Stop III appeal requesting these explanations. Id
Five months later, on November 18, 2003, Mr. Broder received a Step TIT response from Jim Armstrong saying "Grievant's dental treatment is in accordance with PD 04.06.150, paragraph I, and relief is not warranted at this level," and that the "record supports that staff properly
6

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 12 of 43

responded to this grievance" and th.at ..... [t)his grievance appeal is demed." Id

B. Facts Relardlnl Supplemental Jurisdiction The defendants in this action are an amalgam of state actors and private actor~ (acting

under color of state law). This is so because in May 2000 the Stale of Michigan privatized

medical services for prisoners. As a result. doctors and physicians' assistants and nurse practi·

lioners who formerly were state employees are now employees or agents of eMS. eMS's con-

tract with the state gives eMS the primary authority to approve specialty care like the treatment

of cancer. eMS develops and implements the protocols for granting or denying specialty care

approval, and for making sure that specialty care is timely provided. eMS and its employees and

agents are therefore necessary party-defendants under the privatization contract.

At the same time, MDOC continues to claim responsibility for prison medical policies

and procedures, which it says are developed and implemented by state officials. MDDC also has

kept its own supervisory physicians, as state and regional medical directors or officers. Accord-

ingly, Mr. Broder alleges that the dc:lays in his diagnosis, treatment, and aftercare are attributable

to both sets of actors, state and private (acting under color of state law).

Likewise, both his federal and state claims arise out of exactly the same conduct by the

defendants. That is, their failure to provide timely diagnosis, treatment, and aftercare give rise to

both the federal and state claims pled in his complaint.

ARGUMENT

T.

Till" PLAINTIFF HAS EXHAIIST(!;O HIS AIlMINIS'I'RATIVt; RI;MIWIliS

eMS argues Ihal Mr. Broder failed (0 meet (he exhaustion requirement of the federal and

state Prison Litigation Reform Acts. See 42 U.s.C. § 1997e(a) and MeL 600.5503(1).3 The

I 42 U.S.C. § 1997e(a) !rtates: "No action shall be brought with respect to priaon conditions under § 19&3 of this title, or any other Federal law, by i!I prisoner confmed in lUly jail, prison, or othor correctional faci!o
7

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 13 of 43
exhaustion requirement is intended to give defendants the opportunity to respond to prisoners' allegations and to take corrective action. See Porter v. Nussle, 534 U.S. 516, 524-525 (2002). "The importance of using the prison grievance process [is] to alert prison officia19 (0 problems." Freeman v. Francis, 196 F.3d 641,644 (6th Clf. 1999). Consequently, the Sixth Circuit has adopted a fair noticc standard for determining whether prisoner-plaintiffs have exhausted their administrative remedies: "It is sutlicJent for a court to find that a [prisoner] gave prison officials fair notice of the alleged mistreatment or misconduct that forms the basis ofthe constitutional or statutory claim made." Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003).
A. Mr. Broder Appealed All of HI9 Grievances to the Final Stage
CMS first argues that Mr. Broder failed to exhaust because he never got Step III responses (to two of his grievances) from MDOC. This argument is absurd. As noted above in the statement offaets, Mr. Broder could not have been morc diligent about putting his complaints in writing. lIe filed a total offour separate grievances, each of which hc appealed with military precision. He had and has no control over MDOC's responses. The fact HllIt MDOC saw fit to respond months late to nearly every grievance and every appeal, and the fact that MDOC failed to respond at all to two of his Slep III appeals, can hardly be laid at his door. A prisoner plaintiff must grieve, bul he cannot compel the Department of Corrections to respond.4
Moreover, MDOC Policy Directive 03.02.130 (Dcf.'s Bric:fExh. 3) provides that the Step III appeal is the prisoner's last available administflltive remedy. By attaching his Step III appeals, Mr. Broder has shown that he has \lone thrOUlJIh al! the steps allowed by the MDOC
ity until such administrative remedies Wi are available are exhausted." Similarly, MCLA 600.5503(1) states: "A prisoner shall not file an action concerning prison conditions until tho prisoner has exhausted
all available administrative ",medie•."
• Mr. Broder recently di.covered that ut least one of the missing Step III griev!lI1ces - containing confi-
dential medical intonllation - had been sent to the wrong inmate. See Affidavit ofSllndra Girard, Execu-
tive Director of Pri.on Legal Service. of Michigan, attached as Exhibit B.
8

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 14 of 43
grievance process, thus establishing that he has exhausted all administrative remedies "as are available." 42 U.S.C. § 1997e(a). See also Policy Directive 03.02.130 (eMS Briet~ Exh. 3).
B. Mr. Broder Attached Proof of Exhaustion to flli Complaint CMS next argues that Mr. Broder failed to attach proper proof of exhaustion to his complaint. (eMS Brief at 4.) But CMS misinterprets or ignores the plain language of the law. The Sixth Circuit has held that "in order to effectuate [the language of 42 U.S.c. § 1997c(a)], a
prisoner must ... show that [his administrative remedies1have been exhausted by attaching a
copy of the applicable administrative dispositions to the complaint." Knuckles El v. Toombs. 215 F.3d 640, 642 (6th Cir. 2000) (emphasis added); see also Brown v. Taombs, 139 F.3d 1102, 1104 (6th Cir. 1998) ("A prisoner should attach to his ... complaint the administrative decision, if it is available, showing the administrative disposition of his complaint") (emphasis added); Hill v. Howe, No. 00-71151, 2000 WL 973672,·2 (£'D. Mich., June 27, 2000) (same) (see Exhibit E). Nowhere in these cases does the Sixth Circuit or the Eastern District require that the prisoner plaintitf attach copies of each stage of every grievance filed. Only the disposition is required.
Nevertheless, Mr. Broder went the extra mile and attached all four Step I, Step II, and Step III grievances, as well as every response (except the two Step 1Il appeals that MDOC never answcrcd). 'Ibc complaint is not deficient for failing to attach proof of exhaustion, and eMS had "fair notice" ofM!. Broder's complaint~ against it. See Burton v. Jones, 321 F.3d 569, 575 (6th Cir.2003).l
C. CMS Was Properly Named and/or Identified in the Grlevancel eMS next arguos that Mr, Broder failed to "mention defendant CMS at all" in his grievances. (CMS Brief at 4). This argument borders on a tautology because most prisoners do , As nOlo<! abovo in tho statoment offact~, the list of medical providers he attached to his second griovnnce WH~ inadvertently omitted by counsol in preparing the complaint. It is attached to thi~ respolUJe brief
as Exhibit A.
9

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 15 of 43
not know who or what CMS Is, or what relationship it bears to MDDC or to the doctors IIl!d nurses IIl!d physicillllS' assistants who actually treat prisoner~. Therefore one would hardly find it surprising if II prisoner never mentioned CMS by name in any formal MDDC gricvlll!ce. CMS is a corporation, IIl!d a corporation Clll! only acts through its employees and agents. ThUB, when a prisoner complains in detail about an ongoing failure of his medical care, CMS (the corporation). like MDDC itseU; has sutlicient notice of the problem to meet the "fair notice" requirement of exhaustion.
But the meticulous Mr. Broder addressed this issue as well. As noted in the statement of facts IIl!d in footnote 5. supra. Mr. Broder attached to his second grievance Ill! extra sheet identifying by name every single person who to his knowledge: had treated him up to that point, IIl!d he added to the list "any and all relevant CMS personnel." In thc grievlIl!ce itself he listed "any other treating personnel, supervising personnel, and any and all other individuals or orfJanizalions involved in the diagnosis, treatment, or referral of my condition." See Exhibit A and Oef.'s Exh. 2-3 (emphasis added). Mr. Broder thus could not have made it clearer that his complaints of medical mismanagement were intended to run against anyone and everyone who had any connection to his diagnosis. treatment, and aftercare, including MODC's contract medical provider. eMS.
Even without that attachment, the Court should fmd that Mr. Broder'~ grievances gave ample notice to MODC of his complaints against CMS. Because eMS is the sole provider of medical care to MDDC patiClnt:l, both MODC and CMS must have been aware that Mr. Broder was complaining of CMS and its medical staff in his grievances. Moreover, MDDC staff who IffiBwered the grievances must have reviewed his medical records (which would have included
\0

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 16 of 43
the names of the CMS employee~ or agents who were providing the care) in order to resjXlnd to tho grievances. CMS had more than "fair nolice" of Mr. Broder's complaints.
D, The Sl:s.th Circuit Has Rcjected the Total ExhaustIon Rule
CMS next argues that even If Mr. Broder exhausted his administrative remedies for some
defendants and some claims, the entire complaint should be dismissed pursuant to the "total exhaustion" rule.
Even ir ~ome of Mr. Broder's claims were unexhausted or only partially exhausted-
which he denie~ - eMS's assertion that such a "mixed" clISe should be dismissed is erroneous. A prisoner with multiple clairns against multiple defendants is not required to achieve "totai exhaustion" of his administrative remedies. Hartsfield v. Vidor, 199 F.3d 305 (6th Cir. 1999).
CMS rc:lies on Smeltzer v. Hook, 235 F. Supp. 2d 736, 744-746 (W.D. Mich. 2002) for the "total exhaustion" rule. In Smeltzer, 235 fi.Supp.2d at 742, the court conceded that the Sixth Circuit hIlS repeatedly rejected the total exhaustion rule. See, e.g" McElhaney v. Elo, 230 F.3d 1358,2000 WL 1477498 (6th Cir.2000) (unpublished) (attached lIS Exhibit B); Riley v. Richard~. 210 F.3d 372 (6th Cir.2000) (unpublished) (attached lIS Exhibit C). 'The Smeltzer district court nevertheless went ahead and applied the total exhaustion rule based on the argument that the contrary decisions were unpublished opinions, and that they all relied on the reasoning of Harts-
field, which the district court ~aid never reached the question of total exhaustion. Smeltzer, 235
F. Supp. 2d at 742. Subsequently, in Burton v, Jones, 321 F.3d S69 (6th Cir. 2003), however, the Sixth Cir-
cuit corrected the Smeltzer court's reading ofHarl,~f1eld, stating that "the Hartsfield holding illustrates that a prisoner's lawsuit, which alleges multiple claims against multiple defendants, is not vulnerable to dismissal under § 1997e(a) simply because the prisoner has failed to exhaust a
11

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 17 of 43

particular claim us to a specific defendant." Burton, 321 F.3d at 575, n.2. Thus, defendant

CMS's "total exhaustion" argument is contrary to controlling law.

E. The Plaintiff's Inadvertent Failure to Comply with MCL 600.5507(2) Should Be Excused Where He Has Filed No Previous Ca811g

Finally, CMS argues that Mr. Broder's complaint should be dismissed pursuant to MCL

600.5507(2) because he inadvertently failed to disclose the number of civil actions he had pre·

viously filed. Ollen that information is part ofthe cover sheet that accompanies a new filing in a

prisoner's cuse, and therefore Mr, Broder's counsd did not include a ~(lpande allegation within

the body of the complaint itself.6

In any event, upon information and belief, Mr. Broder has never filed a lawsuit before

against MOOe, CMS, or any orthe named defendants. Upon further information and beJlt.lI~ thi~
is the first lawsuit that Mr. Broder hIlS ever filed lIS a prisoner in the custody of MDOC. 7

Because Mr. Broder has exhausted all of rus administrative remedies in conformity with

the requirementq of 42 U.S.C. §I997a(e) and MCL 600.5507, and has clearly put defendant CMS

on notice ofrus claims, CMS's motion to dismiss for failure to exhaust should be denied.

n.

THE COURT SHOULD KEEP MR. BRODER'S PENDANT STATE-LAW CLAIMS

The detemdant eMS asserts that the Court should decline to exercise supplemental

jurisdiction, under 28 U.S.C. § 1367(a), over Me Broder's state law claims of gross negligence,

willful and wanton misconduct, and medical malpmctice/negligence. (CMS Brief at 6-8.)

According to the defendant, litigating Mr. Broder's federal § 1983 claim along with rus state law claims, "may not scrve judicial economy or trial convenience." Id eMS mischaracterizes 28

, If the Court wallts this allegation to be made Il part of the complaint, then Mr. Broder can Ilmend his complaint to add it. See Fed. R. eiv.I'. 15(n). 7 Tho roason for the 1'(I((uireme/lt appoars to bo so that tho Court can koop track of frivolous lawsuits that were di~mi~~od and that would count 8~ ..strike~" for pllrpo~e~ ofthe "three ~trike~" mle under the PLRA.
Here, Mr. Broder has no strikes, so the pleading requirement serves no purposo.
12

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 18 of 43
U.S.C. § 1367(a). Under 28 U.S.C. § 1367(a), federal courts should exercise supplemental jurisdiction over
state law claims that form part or the same case or controversy as the claim with original federal jurisdiction. Set' 28 U.S.C. § 1367(a) (UThe district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same ca~e or controversy.") The U.S. Supreme Court has stated that supp1cmcntaljurisdiction is proper "whenever there is a claim 'arising under (the) Con~titu(ion' ... and the relationship bctwccn that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.'" Uniled Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (superceded by statute). Claims form part of the same cllse or controversy when they "derive from a common nucleus of operate facts." Gibbs, 383
U.S. at 725; Ahearn v. Charter Township 0/Bloorrif/eld, 100 F.3d 451,454-455 (6th Cir. 1996);
Obeid v. Meridian AuIO. Sys., 296 F. Supp. 2d 751, 753 (B.D. Mich. 2003). Stated differently, "if there is some basis for original jurisdiction, the default assumption is that the court will exercise supplemental jurisdiction over all related claims." Blakely v. United States, 276 P.3d 853,861 (6th Cir. 2002).
Tn the present case, both the federal and state claims derive from exactly the same operative facts - the defendants' alleged failure to timely diagnose and treat Mr. Broder's laryngeal canctlr. (CampI. ~ 2-3.) Therefore, Mr. Broder's state law claims meet the statutory standard as upplied by the U.S. Supreme Court, by the Sixth Circuit, and by the Eastern District of Michigan.
While pendant jurisdiction is "a doctrine of flexibility, designed to allow courts to deal with cases involving pendant c1ai.ms in the matter that most sensibly accommodates a range of concerns and values," City ofCh/cago v, lnt'l Coil, of Surgeons, 522 U.S. 156, 173 (1997)
13

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , - - - - ._---_. __.-
Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 19 of 43
(citing Carnegie Me/on Univ. v. Cohill, 484 U.S. 343,350 (1988», the statute it~elfenumeratcs the circumstances in which district courts should refuse the exercise of supplemental jurisdiction:
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-(I) the claim raises a novel or complex issue of State law, (2) thc claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). Mr. Broder's case docs not fit any of the four reasons \0 decline supplemental jurisdiction
* under 28 U.S.C. 1367(c). The state law claims Mr. Broder asserts do not raise any novel or
complex issues of state law. (CampI. '1101-113.) These are garden-variety torts. Nor do Mr. Broder's state law claims predominate over the claims for which the district
court has original jurisdiction. Mr. Broder's federal claims allege that CMS doctors or staff demonstrated deliberate indifference to Mr. Broder's serious medical needs, subjecting him to cruel and unusual punishment in violation of the Eighth Amendment. To prove: deliberate iudiffercuce against CMS, Mr. Broder must show that il~ eu~toms, policies, or practices resulted in the CMS doctors' failure to diagnose and treat his throat cancer within a reasonable time. To make out the state law claims for gross negligence, willfitl and wanton misconduct, and medical malpractice/negligence:, Mr. Broder will have to rely on the same facts. The facts needed to prove Mr. Broder's federal claims will thus be identical to the facts needed to prove Mr. Broder's state law claims. Therefore, MI. Broder's state law claims in no way "predominate" over the §
1983 claim or which the Court has original jurisdiction.
14

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 20 of 43
The third reason - dismissal of the underlying federal clalm - does not apply unless or until the Court dismisses Mr, Broder's § 1983 claim under Rule 12 or Rule 56, See 28 U,S,C, ~ 1367(c)(3), If that were to occur, so that no federal claim remained against any defendant, then the state law claims should be dismissed aq well, and the plaintiff would not oppose the dismisssal, But on this ground CMS's motion is premature,
The fourth reason for declining 9upplementaljurisdiction is "exceptional circumstances" for "compelling reasom" tmder 28 U,S,C, § 1367(c)(4), In Quackenbush v, Allstate Ins, Co" 517 U,S, 706,716 (J 996). (he U,S. Supreme Court set a high standard for meeting this factor, The Court said that federal courts should decline to exercise their jurisdiction only "in otherwise 'exceptional circUJIlstances' where denying a federal forum would clearly serve an important countc:rvailing interest." Id. The dofondant says that judicial economy, tairness, and comity require this Court to deny supplemental jurisdiction over Mr. Broder's state law claims, (CMS Brief at 7,) In fact, judicial economy, fairness, and state-federal comity counsel the opposite, It mllkes 110 seme for all the witnesses to have to be dragged into two courts for two sets of discovery, two sets of pre-trial motiom, and for two separate jury trials, when the proofs all all issues as to all defendants (not just CMS) and all claims are virtually the same, Cases such as this where the same conduct gives rise to federal and state law claims - are the reason why the supplemental jurisdiction statute was passed In the first place: to keep the claims in one forum where they can be resolved with the greatest efticiency,
Mr. Broder's state law claims arise out of the same factual nexus as his federal claims, and his state law claims do not implicate any of the circumstances for which a federal district court can or should refuse to exercise supplemental j urisdiClion. CMS' s motion should therefore be denied all this ground as well.
15

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 21 of 43
CONCLUSION For the above reasons, the plaintiff Steven Broder asks the Court to deny defendant CMS's motion to dismiss.
Respectfully submitted, MICHIGAN CLINICAL LAW PROGRAM
PJD~f()
By. Puul D. Reingold (P·27594) Attorneys for Plaintiff Steven Broder 363 Legal Research Building 80 I Monroe S t
4 109-1215 or
Studont Attornl.lYs
~C~Rot@~ Student Attorneys Dated: March 16, 2004
16

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 22 of 43

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

STEVEN BRODER,
vs.

Plaintiff,

CORRECTIONAL MEDICAL SERVICES, TNC.,

and its physician ompl(Jytles, namoly:

AUBERTRO ANTONINI, JOHN AXELSON,

MALCOLM TRIMBLE,

BEY,

BENZI MAmAl, and RAY H. CLARK;

and employees and medical staff of the Michigrul

Department or Corrections, namely:

PATRICIA L CARUSO, director,

GEORGE PRAMS TALLER, medical director,

HENRY GRAYSON, warden,

and JAN EPPS, regional medical director;

in their individual ruJd official capacities,

Defendants.

File No. 03-75106 Hon. Gerald E. Rosen Mag. Judge Paul J. Komives

t.:..~
r:":lr".1"".~~r,
u'
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:?cr=>'..Pr"-I
z:::.-:-~'.

i
?:

-n

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rn ...J

"0 0

~:')

LoJ
0'-

PROOF OF SERVICE
On the 16th day of March 2004, a copy of Plaintiff's Brief in Opposition to Defendant CMS 's Motion to Dismiss was first classed mailed to:
Brian Richtarcik Chapmallalld Associates, P.C. 40950 N. Woodward Ave., Suite 350 Bloomfield Hills, Ml48304

I declare that tho statemonts above are true to the best of my infomlatioll, knowledge and belief.

Dato:3//(;/ot(

~ ~/'A'~
V~hiltz

(.....

.

Legal AssistruJt

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 23 of 43

Index of Exhibits

EIhiblt A Exhibit B Exhibit C Exhibit D Exhibit E

List of 37 medical and/or supervisory staff, attached to grievance Affidavit of Sandra 1. Girard regarding missing grievance respOIl.'ies
McElhaney v. Elo, 230 F.3d 1358,2000 WI, 1477498 (6th Cir.2000) Riley v. Richards. 210 F.3d 372 (6th Cir. 2000) Hill v. Howe, 2000 WL 973672 (E.D. Mich., Jun. 27, 2000)

Case 2:03-cv-75106-MOB-PJK Document 9

O,)"15 I Ot, Filed 03/17/04 Page 24 of 43
El(~" A"P
2 0 ~~e..\

Case 2:03-cv-751( 06-MOB-PJK Document 9 Filed 03/17/04 Page 25 of 43

LIST OE: MEDICAL AND/OR SurERYISORX STAFF

Audberto Antonini. MD 10hn Axelson. MD Pat Barrett. RN Sally Bengal, RN
Jerry Booth. MD
Orson Cardon, MD Jim Chwnbedain. RN Ray H. Clark, MD Laura Coffey, RN, MSN Kenneth O. Devaney, MD 1. Epps, RN Robyn Finch, RN Usa Gamor, RN Henry N. Gmyson. Warden 1. Hamilton, MD James Hayman, MD James Helsel. MD JoAnn Hirth, MD Hoyner, MD Connie Ives, RN

Debbie Killewald, RN. BSN Ronald Komac, MD Mohan Kulkarni, MD Peggy Lee, RN Benzi Mathai. MD P.C. Patel. MD George 1. Pramstaller. D.O. Celoste Praser. RN S. T. Reddy, MD Debra Richardson. RN Donna Rohr, RN Sharma,MD Don Smith, RN Molly Sullivan, MD Malcolm Trimble, MD Christina Tsien, MD Annette Werner, RN, BSN
Any lind all relevant CMS personnel Any and all relevant MDOC personnel

, .

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 26 of 43

" "

MICHJ'~, Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 27 of 43

PRISO(:EGAL SERVICES OF

INC.

9andro L GlIrW
~OIrlIOIor
p,o, ace 9.\!8
JIOIoIoo, MI 4Q204
(e1'l')7~
VoIoe Mal' (/111) 1e0.8470 FAX (OOIlIIdriIQ: (517) 71JO.W17 FAX (oonIldlnlllQ: (811) 7&7.0014
C=Mlfli pI*mInoGlIlTlflbt..1)!I

Mr. Sleven Broder, 226094 1790 E. Parnall St.
Jackson, MI 49201

October 27,2003

Re: Affidavit and MDOC grlavances
Dear Mr. Broder:

Enclosed, plasse find an affidavit from me concerning the grievances that were delivered to Mr. Landry In November 2002 and your original documenta.

I apologlztil for the dlililily In retuming your documents and provIding the affIdavit.

Sincerely,

pmso

~"
GAL SERVICES ~/cH~AN

~' ~rb~1

Sandra Girard Executive Director

Encls.

Case 2:03-cv-75106(-MOB-PJK Document 9 Filed 03/17/04 Page 28 of 43

AFFIDAVIT OF SANDRA L. GIRARD

I, Sandra L Girard, make the following statements:

1. I am an attomey llcenaed to practice In the State of Michigan (P33274);

2. I am the Executive Director of Priaon Legal Services of Michigan, Inc. (PLSM);

3. PLSM represent., since its appointment in August 1996, all male prisoners In the
State of Michigan Department of Correction. In a state-wide clsssl1lctlon, Qj;!ln y MlOOlgan
De.partmQnt of Corrections. in the Michigan Court of Claims;

4. From D&cember 15, 1997 until April 16, 2003, including the time of the Initial contact relevant to this matter, PLSM was located Inside the Charles Egal&r Correctional Facliity at 3855 Cooper Street, Jackson, Michigan;

5. At that time PLSM employed ten prisoners a& paralegals and two as clerks and also

employed an offlCG as&istant, office administrator, and a law school graduate who was not

yet admitted to the Bar;

.

6. On December 5, 2002, I accepted a collect call from prisoner Steven Broder,
#226094, housed at the Pamall Correctional FaCility, 1790 East Pamall Road, Jackson,
Michigan;

7. Mr. Broder called to complain that Prisoner Affairs In the Central Omce of the Michigan Department of Corrections had mailed Mr. Broder's Step III Grievance and attachments to prisoner Douglas Londry, #245998. PrisonerAffairs had 8180 mailed to Mr. Londry the Step'" Grievance I!Ind attachments from Mr, NathanlElI KInney, #217637, 8S
well as Mr. Landry's own Step III Grievance;

8. Mr. Broder told me that all the grievances were stapled together with one big staple and enclosed In an envelope that addre,1Ied to Mr. Landry &It PI1I1l8I1 Correctional Facility, 1790 East Pamall Road, Jackson, Michigan;

9. Mr. Broder lIsa Informed me that Mr. Landry had told him about the .Itumlon and had showed him the package but had not alterl!ld the way the grievances had been
recelvl!ld, WL, he had not uOl¥iapled and separated them ye~

10. Mr. Broder told me that he and Mr. Landry both WfKIiI conllned at Pamall
Correctional Facility but Mr. KInney was not even at that prllOn, he was confined at Cooper Street Corr&elional Facility;

11. Mr. Broderwas ..pecially concemed because all tha grievances pertained to highly confidential medical grievances and It waS a very negligent breach of confldentlallty to
send them to a dttTerent prisoner;

o o Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 29 of 43
12. Mr. Broder said he wanted to be able to document this breach of confidentiality;
13. I advised Mr. Broder to have Mr. Londry send the package of grievances to me,
exactly the same way he had received them from the Prisoner Affairs Office In lansing;
14. I told him that I would examine the package of grievances and If It supported his claims, I would prepare an affidavit that tho three men could use to pursue this violation of their confidentiality;
15. On December 17, 2002, I received a certlfled package processed through the Charles Egeler mail room from Mr. Douglas Landry;
16. Inside this package was a letter to me from Mr. Landry in which he stated that he
had received the enclosed stack of grievances, In the lame condition as they were lent to ma, from Michael A Powell, Prisoner Affairs Coordinator, in the Central OffIce of the
MDOC 11'1 Lansing;
17. I closely examined the package of grievance. and found that underneath a letter
from Mike Powell to Mr. Londry asking for more information, there were levan grievances stapled together with on!:llarge staple. They Includ&d five grievance. (Steps I through III) filed by Mr. Landry, one grievance (Steps I through III) flied by Mr. Broder, and one grievance (Steps I through III) flied by Mr. KInney (A copy of the letter from Mr. Powell, Is attached.);
18. Stapled Into the package of grievance., with Mr. Broder'. and Mr. Kinney's grievances, were letters from Mr. Powell to each of them requettlng more Information
about their Step III Grievances. Those two letter8 were dated Odober 1, 2002, and It
appeared that had both responded to the letters (Caples of tMllle letters are attached.);
19. All of the grievances dealt with medical probllltl11s that I would clralstfy a8 highly personal and con1Identlal;
20. On January 9, 2003, at my request and under my direction, a parahigel reviewed the file and drafted an affidavit I reviewed It, made IIomf!! changes and received another draft on January13, 2003;
21. During this time PlSM was Involved In "tlgatlon in the Court of Claims, Court of Appeal. and Supreme Court challenging thf!! MOOC's effort. to force PlSM to vacate Its o1TIce Inside the Charles Egeler Facility and move ItIII twelve prisoner employees to other prisons;
22. Despite the pendency of a timely motion for rehearing of the Court of Appealll' December 27, 2002 opinion, on January 17, 2003, the MOOC moved eight of PlSM'$ prisoner paralegals and clerke to different prisons, Including the paralegal who was anisting ma with this matter. The MDOC gave PL$M one week to vacate Its o1TIce;

c Case 2:03-cv-75106(-MOB-PJK Document 9 Filed 03/17/04 Page 30 of 43
23. Following extensive briefing and a hearing, the trial court found the MOOC In contempt of court and ordered it to return the eight prisoner employees by 4:00 p.m. on January 31, 2003;
24. On February 25, 2003, the Court of Appeals denied our motion for r~h~Bring and gave Its December 27, 2002 opinion Immetdlete effect. The following momlng the MOOe moved all twelve prisoner employees and ordered PLSM to vacate It, office;
25. On March 19, 2003, the Michigan Supreme Court gave PLSM 28 days to vacate its
offices at Egeler Correctional Facility and ordered the trial court to enter a final Judgment
In this massive class action by November 1, 2003;
26. On March 31, 2003, the trial court ordered thBt eleven of the twelve prisoner employees be returned to Egeler to help PLSM clvlllan staff organize outstanding work, organize files, pack, and prepare to mov!!!;
27. On April 1, 2003, the eleven prisonertl were retumecl, but on April 4, 2003, the Court of Appeals reversed the trial court order and by 3:00 pm on April 4, 2003, all eleven prisoners ware transferred again, without the opportunity to organize, finish outstanding work, such as this affidavit, and pack In a systematic matter,
2a. PLSM's four civilian employees were left to locate and rent otflce space and move
Its entire office, including twenty dfil5ks, extensive computer equipment Including 25 de8ktOP computers, throe scanners, two photocopiers, Q LAN, afax machine, vruious office
c.wn fumlshlngs, almost 100 file cabinets, a complete law library, approximately 100 boxes of
discovery materials from the caSEl, and a six line telephone system by AprIl 18, 2003.
29. Th~ MOOC provided several minimum security prisoners to load boxes on to trucks
and unload them at the new location. However, a. a result of moving under such extreme
time pressures and the prlaoner helpers' lack of knowledge about how to organize the matmals at the n(IIN lcoatlon, PLSM's office W8sleft In chaol. Most of Its employees were gone, its files were in disarray, and Inalead of an adjournment, it had been ordered to complete discovery and trial in the largest prison clalllill action In Michigan's history (over 2,000 lay wltn8$S8a and a dOlan experts) within sav.n months;
30. After the move, I was unable to readily locate many files, Including the file connected with thle matter, and I had to chose between my duties to the class and to Individual members of that class;
31. We 10llt the "rvlee, of the pr1aoner paralegals who had lin average of eight years experience, who worked for less than $1 0 per day. Some pftheas men worked exclusively on trial preplI\I'atlon; the others worked primarily on pr1soner correspondence. One man spent almost full-time simply filing documents. We could not afford to hire an equal number of experienced civilian paralegals or clerlCitI plIINJonnel. I had to recruit volunteers and hire numerous Inexperienced college and law student8 to try and complete discovery

"~I "

... '

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 31 of 43

and prepare for trial, 8S well as handling over 50 piece of Incoming prisoner correspondence each day;
32. On top oftha chaos resulting from the move, PLSM's systematic mathod of opening, logging, screening, coding, assigning, answering, and filing Incoming correspondence was completely disrupted. We lost the people responsible for most of these tasks.
33. In September 2003, I asked my staff to search everywhere for this file and a staff member eventually found It In a stack of discovery docomQnt, and other files;
34. Today, October 27, 2003, I am mailing an original copy of this affidavit to Mr. Brodar, Mr. Landry, and Mr. KInney along with his Individual grievances and attachments;
35. The delay In obtaining my affidavit and the retum of their documents Is not the fault of Mr. Broder, Mr. Londry, or Mr. KInney. They attempted to promptly pursue this matter and have me witness the vloletion of their rlghtll to confidentiality that occurred when all the grievances were sent to Mr. Londry.
I Ilwear and declare under penalty of pe~ury that the foregoing I knowledge and recollection.
Sandra Girard (P33274)
Swom and subscribed to before me this J7-M day of October, 2003,
~[).tltJ<J

-

--

-

-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

,

'

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 32 of 43

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 33 of 43

230 F.3d 1358 (Table) lInpublbhed m'po.IlIon

Page I

(ell."., 230 F.3d 13!R, 2000 WI. 147749H (61h Clr.(:I1lch.)))

C
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Courl'S decision is referenced ill a "Tablo of Decisions WIthout Reported Opinions" appearing in the Federal Reporter. Use FI crA6 Rule 28 illld FI (TAG lOP 206 for rules regarding the citation of unpublished OpinlOIlll.)

miJlinlllm six hOllrs per woek of I.w Iihrary lime establlshed by MDOC policy. McElhaney had
approved legal reprosentation ai\reelllenl8 with the other plaintiff. and clainled that tho reduced low library tillle impeded his e/forn to r.~.arch and file pleadinis for him~.lf and tho~. pl.intin•. In .ddition, tho plaintiffs all.~ed that the ri\lhts of Tucker, RolliM, Erwin, aud Droskoy to 10i.1 assi~Ulnc. from McIllhaney were violated by the defend.uts' actions. They sought Olonetary damages and u~unctive relief.

Unlted States Court uf Appeal.. Sixth Cireuil. Randy A. MCELHANEY. PI.inLin:Appollanl,
v.
Frank ELO, et al., Defendants-Appellees.
No. 98·2173. Sepl. 25, 2000.
Before BA Tq:lET.DF,R and ~, Circuit Jud&es;
ClR:AHAM. District Jud~e. l.Eli':.l
~ The Honorable James L. Gruham, United SUltes DIstrict Judge for the Southern District of Ohio, Sltt~lg by designation.

In an amendment to the complaint, McElllaney
added corrections ol1ker Whlslnall and heo!'ings officer l'all<en'le~l as defondauts and alleged thot Whisman prevented McElhaney from onteruli the chow hall with a leual document in order to ohtain a signature from Tuckor. Whisman i~sucd a m.jor ml,conduct ticket when McElh.ney refh,ed a direct orde!' to leave the papers, and Falken,!"in subsequently fOllnd McElhaney ~uilty. McElhaney furUle!' alleged that Ilbrarian Heard hampered his .flom to prepare pleadings and copy exhibits in the law library. McElhaney ,ubsequently filed • supplemental complault, anegin\: that a Jolm Doe defendant violated his riiht of access to the court.s by rofllllinll to let McElhaneys brother pick up tri.t transcripts for delivery to tho Michi~all Court of Appeals. In a responsive pleading, the pl.intiffs alleged rotallatlon for their protected leg.l activities. PlalmlID ilrwln and Tucker rued separate motions for voluntary dismissal, which were subsequently granted.

"1 R.ndy A. McElllanoy, a Mlchlgan prisoner proceeding pro se, .ppo.ls • district court order di'mh.ing hi, civil rightll action filod under ±;( U.S.c. § 198:). This case hM been referred to a panel of the court pursuant to RJlle .14Iil( II, RIlles of the Si~\h. ,DI\;~'!. Upon examination, this p.nel un.nimou~ly allree, that oral arllument is not needed. Fe,!... R,0cJ:1D. P. }4(ql.
A complaint signed by pl.intlff, McElhaney, Tucker. Rollins. Erwin, and Droskey--aU pdsoners at Uus HliITisun Correctional F.eility (HCP)--nlloged th.t tho warden of lieF (Clo). deputy warden (Haigh). "-,,i~rant doputy wardens (Nonvood ond Vallie). recr.ation director (Wright), classlflcatloll director (Markland), assistant resident unit supervisor (lnw·om). re,ident unit officer (Kope), ond the uireetor of Ihe Miehill.n Department of COITeetion, (MDOC) (McOinnis) viol.ted their riaht of access to the co urIs by failing to provido McElhaney with tho

In a reporl filed on August 10, 1~n, the magist'"te Judge recommended t1UlI the motions to dismiss filed by defendants McGinnl~, Elo. Wllisman, and Falkenstein be granted; that summary judgment be grantod in favor of defondants Haigh, Norwood, Wright, Markland, Kopo, Ingram, and Vallie; and
that the court stJa sponte dismiss defendants John
Doe and Honrd. In addition, the magistrate jud~e reconunellded that dIe claims for ~~llnctive rollef be denir-d as moot bccau3e the three reItl8.ining plaintiffs had all beell lransferred from lIeI' to other
il1l:1tirutionll.
'*2 FollowUlg a de novo review, the dl'trict COLlrl overruled McElilaney's objections, adopted the lllJlgimate Judge's ropo11, aud dismissed the action in an opinion and order rued on September 30 and entered on October I, 1998. Tho notice of.ppeal was signed only by McElllaney.

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Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 34 of 43

230 FJd 1358 (Table) Unpubll.hed OI.po.ltlon

Page 2

(Cite All 230 F.3d 13~8, 1000 WL 1477498 (6th Clr.(Mlch.)))

On appeal, McElhaney .rgues th.l: (ll dlsputod issuos of l11aterial f.ct preclude the enlry of swmnary judgment for the defendanm; (2) the district COLll't imprope1'1y granted sunmlary judgment without atlordillg tho plaintiffs opportunity for di.c(lVery; (3) the defendants' nctions re,uited in 'ctu.1 prejudice to McElhaney's criminol appe.1 sufficient to state n claim for deni.1 of the right of aCce,s to the courts; (4) the district court improperly decided disputed tiletual issue, in granting Whisman's and Falkenstein'. motion. to dismiss; (~) the district court improperly decided dIsputed facmal iS6ues in granting McGinni.'. lind Elo's motions to dismiss; and (6) the district court .pplied the WfOllS standard and improperly decid.d di,puted factual issues in di~l11i~!oling the ctaim't against Heard and ItJohn 000,11
lIpon review, we afilm> the dlBlrict C()urt's order.
This COUIt reviews de "''''0 a district COUlt's dlsmlssal
of • complaint for l,tilUIe to state a claim onder &QJl.Civ,Ll1I1f[{6J aller tHking aU weli.pleaded
tilclwll .Ilcg.tion, ,... true. See ,/ud<,>W! y, alv Qr
1.n C:()h~ltIh~'f"J.9LE.J.\I.. 745 (6th Clr,1222); klli.1
~,K!JI:!II,\·.SI.'I1"\·'" In,:., ,.1 35 F.Jd189 40~ 16th G.iL129R), /\ complaint should not be dimussed 1'01'
foilure to ~tat. a cl.im unle" it appear. beyond doubt that the plaintiff can prove no .et of facts in support ur hi. ",.im which would elltltle h~n to relief. See
m Jad,oll, 194 i',3d at 74~; LewlJ, f,.ld Rl 40.5
Despite this libeml st.ndard. a plaintiff is obligated to ,atisry federal notice pleading requirements and nllello mQTe thl1n bare IHiscrtionrll of legsI condusiurui, Se" {,ewls, 1,,5 F)d at 40~.
111111 court Illso rcvicwli de novo 11 disLrict court's order granting ,urnmary judgment, using Ille same
tesl as Illat used by the district court. See dver!' v. Ait!~, 110 FJct 12. 13 (Gth CiI.1997). ThWl, "r~lumnl~ry Jud~ment i. propcr 'if the plc.din8', depogitions, answers to interrollatorie$, and admJsslollll on file, together with the affidavitll, if any, show that dlere Is no g~nuine issue as to any matori.i fact and that the movIng party Is ontltled to a
judgment., a matter of law," , lei. at 13,14 (quoting
Fed R Cjy P 56!c l).
The di~trict court properly granted 'U1llJYU1.ry judllment to the d.fendant. on McElhaney" Fir>t Amendment ",.im or denial of access to the courts. The foelJ.'i of the First Amendment right Is whother Ihe defondant<' actiOI\~ actually denied the prisoner a "re.,onobly adequate opportunity" to present his cilllllt< in COlirt. See J,!Quwl$ )'. Smith, 430 U,S, 817,

~2S .l.1 ~77). There Is no constitutional right to .ny

particul.r number of hours ~l the law Iihrary. See

no, Wa{i;rr v...tr.!i~fhl:,\' 771 1',2d

932 (@l Cir19~;),

Rarher, to state a claim for the denial of meanin~t\ll

access to the courts, • pl.intiO' mllst plead and provc

actual injury to exi,ting or contemploted IIti~ation of

nonf\ivolou~ el.irru which challenge the pl.intift"

~ontcncc or conditions of confinement. Sec l"iOO;~

O:W;I', 5!~ U,S 343,349,354-55 (1996) McElhaney

has faileu to meet tltl1I requirement. Althouyh he

cl.im~ that hi, criminal appeal WIIS dismissed . . .

result of hi' inadequate law library tim•. the rccord

indic.te, otherwise. McllUtaney's appeal was rejected

because he did not reduce his oversized brief or

move for 1111 exten6ion of time in which to do so as

directed by the ,t.te eUUIt or appeals, Any failure by

tho d.fendanW to provide six houts per week of law
library time wn, not the c.use of Mclllll.ney's failure

to follow the eowt', inillruction.

"3 Nor does McElhoncy have a cOI'lStItnrlonalright to assist oth<1' pri.oncf> with their legal problelllll. See elM! v. ,fjRR":ln'4, IQ E,)" 313, 378 (6th Cll,1993), Where, lIS here, an inm.te has an approved le&~1
assistance agre.ment with .nolher innUlte. the prison
may still rellSonably limit the lime, place, lind nUlllll0r in which inmate, may comult. conduct th.lr le&.1
re,carch. and prepare iegal papers. See Walkl'", 771
f."N.t 932, Furthermore, a jallllOuse lawyer's right to
assi,t a110ther pri~oner is wholly derivative of the inmate/client's riijht of aec~," to the cOutts. See Gibbs, 10 FJd !\l 37&, Because none of Mcblhaney's Inmnte/clicnts are parties to this .ppeal--in fllct, two voluntarily withdrew from the cumpl.int a1 the
district court Icvo!"McElhaney cannot cl.im denial
of access to the court, in rel.tion to lII\y of Ws innmte/clienw' Iitigatiun,

The dl.ltrlct court properly dismi5~ed defend.nt,

McGinnlg and Elo because McElhaney's alle~ations

concerning them .re bWled upon their Bupervi601),

stalU.,. which is in,umciont to impose LIability under

m. § 19R3. See S!!.fflf.U~Luttreli 192 F 3d

30Q

16th Cir, 1999), wi denied. J~!I ::i,C!' 2724 (2000); SCilrh/!Qur v. UnIY!,~,jlt;l',rllI(mll'm' 159 F 3d 199,

2Q6"QIJ]th Cif 1998\. cere. deniee/. 119 S,Ct, 1763
W!2lll,

BecaU5e Tuckor volWlt.rily withdrew i1'om this action, the di~trict court properly dismissed the claim a~ain~t defendant Whi'IlliIn. as the only all.~ation a~ain't him involved the alleged imerference with McElhaney" .ttempt to get Tucker's si~l1ature on a

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Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 35 of 43

230 F.3d 1358 Crable) Unpubll.hed DI~po'1tIon

Page 3

(Cit. a~' 230 ~·.3d I3!8, 2000 WL 1477496 (6th Clr.(Mlch.)))

document. The claim auaimt dcfL-ndant FalkeruJ!oin wa, properly dlsmissed bccauM ~hc h ab.olutely immune from all actioll for monetary damage; relaling to her adjudlcatioll of McElh.ney', Il1lIjor
mi,conduct. See SheilI' Y, /o1E/frO'f, R49 .F. 2d 228
2,O<U{fi!h...C:iI:..!.2W. Nor did tho district court err in dismi..inllthe claill1ll against tho Jollll Doe defendant •nd libr.rian ikard.
This COUI1 recently set forth the clements of a first Amendment retaliation clain\: (I) the plaintiff engaged in protected conduct; (2) illl adverse action was taken against the plaintiff that would deter a person of ordinary fiJT!l!le," lrum contluulng to eugage in that conduct; .nd (3) there was a causal cowlecticm between element, onc lind two, Lo., the advorne action was motivated. at lc.,t in pat!, by the plll~ltlfl:'s protected conduct. See Z1wd<kl/j"X v,
lI/Mlff, m fJd 378, 39:L(ilh CjT, IW't) (en bane).
The plai.ntiff has the burden of proof On all three elements. In thi~ c"C, the di.tricl court found that McElhaney had toiled to allege with specl1lclty the adverse actions taken or demon.trate the requlrod causal connection.
The district court should not have addrc,"ed the medts of McElhaney's retaliation claim. The Prison Litigation Reform Act requiro. pri,oner; brulging civil ri\:hUl action. to exh.u,t all available
* admini.trative remedies prior lo filing suit In federal
court. See 47 l),~,c. In7i</.lU; IiroWG V TOOlllbs, 132 EJd 1102, 1104 (6th Cir,), "m denied. 52~ U S,
HJ3 11998). The pl'isoner bears the burden of establishing exhaustion of ~dministraliv" remedies. See id. To ost~blish exhaustion, the pri.oner must allego that all available admini,trativc remedies have boen oxh.mstod and he ,11Ould .ttach doclllIl<'lit8tlon to the complaint indicating the adrrllnlstmtive di'po,ition of allY grlevallces that he h.d med. Sce 1<1. Beforo the dIstrict court adjudicate, .ny claim ..t forth lu a prisoner's complaint, the court mU!it Jeternune whether the prisoner has complied with the cxhau.,tion requirement. See id. When a prisoner h.~ tiled a civil righlli claim in federal com! without tlrst exhaU1lting h.is adrnlnJ.'l1Iative remedios, dismiss.l of the complaint i. appropriate. See Freeman F frat/cis .
196 F.3J 641. 645 (6th Clr,19991; Brown, 139 F)f!..1
.ll.Q.'l. If a complawt contains exh.u.,ted .nd unoxhaustod cl.~, the district calit may address the merits of the eXhOll.\ted claim. and dismiss ollly tho,e that arc unexhau~ted. See IIaW:'fieid y. Vidor, 199 F,3d ~(I~, ,1(i9j6lh Clr, 1292).

""4 McElhaney did include, .mung his lIWllOrOUS
exhibits, the dispositlon of his grievance' relating to llis access to the COUIts claim. However, he ha, nelthor alle~ed .,haUlltion of administrative remedie~ regardin~ hi. retaliation c1aull, nor suhrnitted Illly doculllOnllltion showinl! exhaustion. There!!lTc, McElhaney's retaliation claim should have been dismissed without prejudice for lack of exh.ustion. However. we atlinn tho dimlct court', judgmenl in it. entirely because McElhaney'. retalialiun claim Oll ils lllce satlsnes 42 U.SC,.§J997d21. which perrniw dl,missal Oil the moriw withoul requiring oxhaustion if the cl.im i, frivolous, nlltlicioll', or litil. to state a
claim upon wWch relief may be wanled. Soe li.t:.im:t1
~.f" 3d at 11 04, McElhaney f.il, to stato a retaliation claim because he doe~ not alkge retaliatory act_ with speclflclty or demonstrate a causnl connection between those nct~ .nd hi'
protectod conduct. Se~ rbwkkus-X, 175_f~Jf,l.t 399· M (~imply aneging rotaliation is insufticient to
e.tabli.h R causal connection). Moreover, there is no indication that McElhaney has been detcrred from continuing hi, leg.1 activities. Thus, the district court. althou[jh u,ing a pre.J1wddeus-X standard, reached the proper conclWlion.
Tho districI court did not err itl 1ludin~ th.t McFlh.ney'. c1.irm for i4iunctlve relief are moot due to his tr.nsfer tu another iJlStitution, See t'.r~i~f.X..L ,'jl;wkirk 422 U,S, 32S, 4Q2-03 (19?~); Ken,'" !" Haigh, ~1 ):',.1tll72. 175 (61h Or, 1996).
Finally, wo fllld that the specific Issues presented by McFlhancy in hi, brief On appoal ~re without merit. Accordingly, the di,trict court's order, entercd on October I, 1998, i. amnmd.ll.lllo 341iHc)(2), R_\llp~ of the Sixtl] .C.irl:.uit
230 FJd 13~8 (Table), 2000 WL 1477498 (6th CJr.(Mich.) Unpublished Di'po.ition
END OF DOCUMENT

Copr. \0 We.t2004 No Claim to Ori~. U.S. Gov!. Works

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Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 37 of 43

210 F.3d 372 (Table) OnpubUsbcd DIsposition

Page 1

(Cite u: 210 F.3d 312, 2000 WL 332013 (6th Clr.(Mlch.)))

p.
NOTICE: THIS IS AN UNPUDLISHED OPINION.
(The Court's decision is referonced in a "Tahl~ of neci~i(tl1t) Without Reported OpiniorL"I" I1ppellring in the Federal Reportcr. 1I,c FI CTA6 Rule 2~ amI FI CT;\6 lOP 206 for nilos rell.rdiny the citHtion of unpublished opinions.)
United States Court of Appeals. Sixth CircIlit.
Jimmie Lee RILEY, Plnintiff-Appellant,
v. Robert RICHARDS, ct a1., J)cfemn..nt••Appellees.
No. 99-1327.

were either wholly conclllsory or insufficient to
establish a yenuine issue or material fnct so as to
widlsU1nd summary judgment. Riley', motion for an additional 60 d.y, in which tu 11k ubjeclions to tile magistrate judge" repurl was donled by the district cuurl. The district court thereafter adopted the ItlJlgi.'Jtrato judgo's report and l'econmlondation, 8mnled the defendant,' motlon for SUlllll11ry Judgmen~ and di.mi",cd Riley's action ill 0 memorandum opinion and order lIled on February 24 and entered on February 26, 1999. A separate judymcnt wall) entered the WlmC day.
On appeal, Riley T<~'.rto the i",uc, pre"cnted to the district court and argue. th.t: (I) hi' verilied complaint w." .ufIicicnt 10 eSlablish genuine issues of I'I1lIterial fact ,0 as to preciude suItunary Judgment; and (2) tho di,triet court erred by denying hi; molinn for extension of time to tile objection•.

March 23,2000.
RefNe MEB.RIII, NEI.SON. and DAUrtHTRFY,
Circuit Judg.,.
ORDER
**1 Jimmie Lel~ Riley, l1. pro soc l\'1ichigtm prisoner, appeal, a district court judgment dismi"ing hi. civil
rights action, as amended, tiled under :Il V,S,C, § l28}· Thi, c...e has been refend to a panel of the
courl punuitI11 to &\lc;lMil(lj~R-lll~'._Q(..!h"-Bi~tb ~. Upon examination, 1hi~ pam:l unanirnollNly a~rees thut oral argumenl " not needed. Fed R.App,
p, 34(.).
Seeking monetary, declaratory, and !qJunctlv. rollef, Riley sued slx correctlow officers and employees of the O. Robort Conon Comctlonal Pacility. Riley sued the defendllnl, in their individwtl and oflleisl capaeltie; for .lkgedly violating hi' right. under the First, Eighth, and Founeenlh AnK,ndments. The defendants mod n motion for slUnmary j uugmenl, supported by their affidaviw, to which Riley
rctjipondcd.
In " repurt filed on J.nwtry 27, 1999, a lTlJ!gistTate judge recornrnendtd Ih.t the ddi.'ndanl,· motion lor summary Judgment be granled and thai Riley', complaint b. dlsm.lssed. After a thorough analysis, the nl1lg1su'llte judge concluded that Riley's claims

Upon roview, we affillll the di.trict court'. judgment in part for rea,(lons other thlln those relied upon by lhL
djmj.1 'WIt, Ser .LJ:r,yrfllr:1!__Vc_ ..('b~>1c(,fJ' (:t of 1f!!1'r~~'cr._JJl_L!,}d.6R7,.691. (6(h CiLI_9.2£l. This
court revjew~ dll novo tl district court's gntnl ur ~urrunary judgment, llliing thc slime staudord usod by
Ihe district courl. See /;;q"jwb(,' Life Awmwc~ So(y uflhe U"Uc.dSlllles I' POt! 143 FJd 1013, 1015 16th Cir.1998). SumTJJllry judgment Is propor If tbere is no
genuine i;,ue of I'I1lIterial facl and the defendant, iLl'e entitled to judgment ILIi a mallcr of law. See
Fed,R,Cjy,P, 56Ic); Celo(1'X Corp. V Catrrtl, 477
U.s, m, .122-23 (986).
Initially, the dctcndanw urge Ihi. court lu fund Liutl Riley h.. waived hi' right tu appeal the denilll of hi, claims because he failed to mo timely objections to the TJJllgistrate judge', report !\I1d recotrlI'!1Clldation.
Se{j Thon",> y, Art! 474 U,S, )40, m () 98~I;!..!i1lkJl
SlaW. y, Walter!!, 638 F,2d 947, 949-~0 (61h Cir,I981l. However, a district court IllilY, ill Its diNcretion, enlarge the time filr filing ubjeclion>. See
E~(!,lt~:iY.-r.,.fIi\Jl; ea((l.:Ij~'!(!'.x.... Milltzn 717 F2d
2.lI4....l.8.ft:1l2.J,6tb Cjr.I9B31. Thi' wa, Riley', jj"t request rur lin exieruioll in which to 111e objections. It was dated within the ten-day period for tlIing
ohjection~ and WM, in fnct, filed within ten dHy~ uf
on try of tho report find rct:urnmenuHliun. As. cause, Riley cited the need for additional legal re,earch to
re.pund to the magi'trate judge's lengthy report. Stich a request i, nOI l1llreasonable nnd is often routinely
gronted by district courts, albeit not alway5 fOT tIle lengtil of time requested. Therefore, despite the

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Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 38 of 43

210 F.3d 372 (Table) Unpublished Disposition

Page 2

(CUe 8S: 210 F.3d 372, 2000 WL 332013 (6th CII',(Mlch,)))

Jiwict COlU't', deni.l of Riley', motion, thi, court
departs Ii-om the genersi rule in tlus case and eon,ider. Riley'. appeal un the merits.
""2 Pul'SllOJll to 42 I J,s,c, § 1997~(ql. a prisoncr must exhaust all of hie available admini,tr"livc remedies, even in money damages ca.,"" hel'lfe tiling in federal court a civil li~ht, action challenging Ihe condition. of hi6 continement. S~C ifr.aJJ•.1;.1.llflnli11.L 193 F.3d 876. 878-79 (6th Cir.l.299); f.imlYJ1...L. Toomh.!, [39 F.3d 1102, IIQ4.l(J\b..Q:W, cerl. dellied, 119 S,C!, 88 (1998). The pli,oner h" the burden of' demonstratlng tllJlt he has exha\lstect these remedies. See Brown 139 F.3d at 1104, Defore the district court adjudicates any claim set forth in the plaintift'~ complnint, the court mu't detcnninc that the p'.intiIT has complied with thi5 exhaustion requirement. See
fd. The pri1Joner "cannot "'lmply fai1 to file Ii ~rievance or abllJ1don the process before completion
and claim that he hae exhausted his remedies or that
it is futile for him to do so because his urievnncc i, now time-barred uuder the r.~l.tions." HrrNldfLl:.
Vidor 199 FJd 305, 309 (Gth Cir.19991. To esmblish
that he has exhausted his adminimative remedics prior to filinG suit, a prisone, should attach to his ~
.l..2Ji3. complaint liny declf'lion dcmon~tfliting lh~ administrative di,position of hi, cl"im,. See .IfrillL
[9;\ FJd ~l 878; Rm~~,)JLl:'.;J.t1 at 1104 If 0 compillint contl1in~ exhllLL...tcd and unexbaul)ted
claims, the district court nifty I:lJdre!)s the merits of
the cxhau.,tcd claim, and di,miss only thu,e that are
unexhausted. See Hal'tStidd, 199 F.;l!.l.!!L309, The
court rrwy dismiss unoxhausted claims on the merit...
only on the ground that the clai~ on lht:ir fifcc
satisfy 4_UJ,~..c. L..l9.'D..1i(•.lJl,l. See Bmwn 139
F.,J.lht 1104

for the reasons stated by the district court. We .mnn
the distriCT court's judgment as to the unexhausted claims on the ground that they satisfy 42 U,s,c, §
.L\l9.7~(c)(Zl·
Accordulgly, the district court'$ judgment, entered un Februory 26, 1999, is nffinllcd. Rulc.~4Jill..2.l(Q.
Rulea of Ihe SIxth Cil'cy it.
210 F.Jd 372 (Table), 2000 WI. 332013 (6th Clr.(Mich.)), Unpublished Di~position
liND OF DOCUMeNT

Neither the magi,tntlc juuge nOr the district tOutt
expre..ly addreased the exJlJlustlon of administrative remedies In lhls ca~e. Nonetheless, dIe record contains evidence tllJlt at loast some of Riley's clailllB
were processed through the prison griovance systonL
Specificaliy, Riley'. daiI1J!l regJlIding the opening of his legal mall, the seizure of hlJi two lootloc"e~ tUld legal llIaterials, and die law librarian's reftlsal to
photocopy and cantiscOllon of the employee hllndbook were the 19ubject of grievanceM. However, there i~ no indication whether Riloy's cl.irru; regnrdinll Tc~triction of his B.CCt:lIi, to the grievance
l'Iy~tcm'l cxpo~urc to toxic chcmicI:IJ~, IiI1U ~ubl:ilei..Jucnl
lack of mewca' care were exhatulttd through the
pri.on grievance system. We, therefore, affirm the district court's judgment as to the exJtallsted claims

COpt.:e Wos12004 1\0 Claim to Orig. U.S. Gov!. Worb

•

•

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 39 of 43

/'
V

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 40 of 43

•

2000 WL 973672

(Cite At: 2000 WL 913672 (E.D.Mlch.))

Pa~e 1

Gilly the Wostlaw citation is cUlTently av.ilable.
United Statc~ Di~trid Court. B.D, Michigan, Southern Division.
S~111uel D, HILL. Plainliff. v.
Sergeant HOWE. etal., J)efendallts,
No.OO-711Sl.
Juno 27, 2000,
OPINION AND ORDER
ZATKOFF, Chid J.
AI' A SESSION of saId Court, held in the United State8 Courtho~c, in the City
of Detroit. Statc of Michiglill, on 1. INTRODUCTION
*1 TWs matter is before the Court Oll Defendant, Motion to Dismiss Plaintiff Samuel D. Hill', (herehUlJ\er "plalntlft") complaInt under Fed.R.Cjv,P, Il! b)(6) for failure to exhaust administrative remedies, The Court finds tho facts and the le~al ilrguments nre adequately presented in the briefs and the dec·jsioll:al process would not he ~ignificl.\ntly aided by orol "llUment. Accordingly. the molion before this Court will be disposod of u)lon the hrief, that the palties have submitted, See E,D, Mien. Local R, 7, l(e)(2), For the roasons that follow, Defend.nt,' MotIon to DIsmiss Is GRANTED,
II, BACKGROUND
Plaintiff in an inmate at the St. Louis Correctional
Facility in Gratiot County, Michigtm_ Hilll compltlinl
,tate, dai.tm for violatiorul oj' his COIlstltutlonal rlghts under the first, Fourth, EIghth, and Fourteenth
* Amendment; of the United States Constitution
brought punuant tu 42 USC § 1983 and .l2a:!,
SpedJ1caUy, plaintiff aUege. that his decisIon not to participate in a druy sting operabon within the pri,on ~ystcm rc~u1tcd in u~"'llult, hATftSSmcnt, I:lnd other phY'lcal, mental, and emutiotUll .bu",s, Plalntlff t11ed Ilumerous grlevances that wore Investigated illlel'l1ally and by tho Federal Buroau of Investiaations.
D.fendal1t1l claim that plaintiff's complaint mlL,t be dismissed for his failur. to .xhalL't his admini,trative rcmedie. throuHh Slep 3 of the grievance procedure

under 42 V,S,C, § 1997~(q). Sec f!(vall )', LOUn<lCd, 193 FJd 876, 878 (1999). Plaintilhlleges that he lms "substantially complied" ",';th the exlUlustlon requirement.
A motion brouHht pursuant to Fed,R.eiy.P, I f(!:>Xlil
for f.iluro to ,tate a claim upon which relief can be &rnnted tesf-' the tc~_l ,ufficlency of tho plaintiff's complaillt In evaluating lhe motIon, this Court "[mju't con,true the complaint in • light ma,t t".voruble to lhe plailnlt'f. accept M true all uf" Ihe ploilnlffs well-pleaded t'ctual alleg_tions, Dnd determine whether th~ plainti!T Can prove no SOl of facls SUppOlting his claim~ thnt w()uld enlitle hlln to
or relicf" Lz,,/wig y, Board DJjX(f,\' n(Eari.l'.SlJJK
Ul!jyw/{I' 123 FJd 404, 408 (!'l\hC:jr, 19971. However, a COUlt need not accept a.~ true legal coneILL,ion, Or unwarrantod factual inference~.
MQrg{~I"XcJ;IIJJI',h's t'zkd Chicl!!!n, 822 F,2d 10, n
!.!il.1!J)x.l9.1ill. A district court may proporly ~rant a
motion tu dUirrrili~ when no sot of facts Clxif5.t!i \vhic·h would allow the plaintiff to recover. Cq(1or b,J' elll1e,
1'. Cornwall, 983 Fold 52,54 (6th (;jr.1993).
ill. ANALYSIS
4): U,S C, § 19270(u)(1) provides that "no oction ,h.1I be hrought with respect to prlson conditions under sg,.Ii!!n 1983 unlil ull admlnlstrativo remedies are exh.u,ted." Brown y, 1,,0",/>'·, 139 F.Jd 1107, IJQ1 (6 th Cir.1998), cert. deltied, ~75 U,S, U} Ll..2W. In Bn.nvn, tho c.ourt of u.ppoals dat~d that "a prlsonor must pl.ad his c·laim' witb 'pcdl1city und ,how that they have been exhaustod by artaehing a e()py of the applicable admlulstrativo dispositions to
the complaint or. ttl the absence of written
documentation. de,crIbe with spocificity tho administrative proceeding and Its outcome," {d, In the ab,enec of partieulari<ed averments concel'llin~ cxh.",tion ,howing the nutme of the administrative proceeding and Its outcon~, the action mUllt he dlsmlssed under § 1997e, M
'2 In lViuckles r TQomh." 7000 WL 761833.·1 (6th
Cir.2(00), tho plaintiffs stated in their complaint that certaIn clainlB had been exl1alL,ted without providing the documentation or other d~tails required by Brown, The court stated that "[tlhere ore none of the particularized aveml0ntll necessary for the di,trict court to determine whnt, jf any, claims. huve betn exhausted or what has been done in an attempt to cxhawt the el.i.tm," Jd, Therefore, the court of appeals held that tho complaint wa, properly di,mi,sed.
Slmllarly, in this co,e, plaintin', complaint has !tot

Copr, (0 Wost 2004 No Cloil11 to Orig. U.s. GovL Work.

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 41 of 43

•

20()() WL 973672

Poge 2

(Cite •• : 1000 WL 973672 (E.D.Mlcb.))

provided !he Cou.rl willi any of the particularized ovem1cn!s nccc..ary fot !he district comt to det(lml1ne whnt. if any, dailTlli have been exhausted. Althou~h pl.intiff ,t.!c. lhal he did nor receive an response to hie llTiev.ncc., he haa nol subrultted any documentation that he forwarded hi. grievances to the nexT STep or appe.lod hi, yricvsnc", under 11,.
Michigan Dopartment of Con'oction'$ grievsnce
procedures. Therefore, plaintiff h.. not "completely
exhausted" hi~ admini,trative remedies. WoW' ,..
MIIOI'ii•. 199 F.3d 324. 327-29 (6 th Cir.1999).
Accordingly. plaintill'. complaint must b. disl11i"cd
under 42 II.S.r· L.L'!27ela)()).

IV. CONCLUSION

Accordingly, for the reasons stnt~d above,
defendant', Motion to Dismiss lUlder l'ed,RCjy,r,
.!1i.hl® i. GRANTED

IT IS SO OlillERED.

END 01' DOCUMENT

Copr.~) Wcst 2004 No CI.im to Orlg. U.S. Gov!. Works

, .

Case 2:03-cv-75106-MOB-PJK Document 9 Filed 03/17/04 Page 42 of 43

f

Case 2:03-cv-75106-MOB-PJK Document 9
Not RepOited In N. W.2d (CIte ASI 2002 WL 1498802 (Mt~h,App.»

Filed 03/17/04 Page 43 of 43

Only the Westl~w ciltltion i, currently available.
UNPUDLISHED OPINION CHECK COURT RULES BEfORE CITINO.
Court of Appeal' of Michigan, Kelvin SIMMONS, Plnintiff-Appellant,
v. COliNTY OF WAYNE and Wayne County Sherift~
Dc tcnUant,· Appe Il,,"~,
No. 230936.
July 12,2002.

Octobcr 29, 1999, A civll action is commenced upon the fllinll of a complaint, MeR 2, IOJ(FI), ~nd pl.intitf, compl.int wa, not acmally flied until December 16, 1999. Although it had be on sont in tor filing earlier, the court h.d to review his reque,t for suspension of fee. and costs. PlU'SUll.nt to M,C,L, §
60Q,2963( Il ,lIId OJ, the court ordered plaintiff to pay
a pmial filin~ feo and ,va, required to "suspeud the filing of the civil Ilcliou" untll plaintiff paid the fcc.
MJ.J.. 60Q,2263(1).
PI.intiff next contends that if the PLRA did apply, he Wl:iN cxcu~t;:J from OXhm.lsting hi5 lldmlnislmlive rOO1edi~~ due to lear of retaliation, Decause plaintiff has not cited any c••c Illw or other authority in supp0l1 of his arMurncn~ the issue has not been preserved for appe.L fr(&~ r L""~ Beali" Inc, 199
m Mich.i\pp 461, 4~7.; ~2 NW2d (1293).

Befort: 1lQQD, PJ., and SAAD. and 11M"
THOMAS..Il'.M!l, JJ.
.Eli': Circuit jud~~, ,imnll on the Court of
Appeals by assignment.
UNPUBLISHED
MEMORANDUM.
"I Plaintlff appeals as of right from a circuit coun ordcr granting dclcnUant" motion for SUnUllJll'Y di~pofliition. VIc aJtiml.
Plilintitf, Ii pri~oncr, tiled thi~ I::I.cliun ~t:c:::king UKlIlJig," Oil the ground thllt he was twice subjected to strip searches that wore conducted in violation of tho law. Dofendants moved to dismiss. assertini that plaintiff had failed to exhaust his adminimativ. remedies prior to filini suit Illld that they were immune lTom liability for any tort claim,. The trial com! granted the motion without explanation. The trial court's ruling on a motion for sunulUny
disposition i.9 reviewed de novo. Kdien v, Davld!Q'I, 241 Mlch,App 611, 616: 617 NW2d 351170QO),

PI.intiff next eontendJi that to the extent tho court

found that dcfendanl1l were entitled to immunity, it

errod in so ruling because the mle of governmental

immunity was .brogated as 10 counties in Ml'erl v.
Gflles"" CQ Audl(('!,..n.:i Miell, L 133 NW2d 190
(J.2Ji.a That case predatee the .doption of the

Govenunent Tar! Liability Ac~ M.q,.,..§. 691 1401

""'1" oj

pursuant to which counties .re in r.et entitled

to claim inllnunity !Tom torI liabililY· MQ.

@J..J4J)!Cll),(ill: MeL 6Ql 14Q7m

We have reviewed plaintiffs remaining claim~ of enOT and find that they I:lrL irrde:vant to either basis for the trial eourl's ruling,

Affimled.

2002 WL 1498802 (Mich,App.)

END OF DOCUMENT

The Prisoner Litigation Reform Act (PLR......), which
took elleet November 1, 1999, prohibits a prisoner
lTom Iiling a civil action eoncornlng prison condiliun' unlil he has ox.haustod all available aJrninistnHive remeJiea, MeL 6QO,S~Q3()), Plaintiff contends that the PLRA was not applicable becau~~ he submitted hIs complaint to tho court on or .bout

Cop!'. ,0' West 2004 No rJ.im to Orig. US. Govt. Works

 
 Case 2:03-cv-75106-MOB-PJK Document 172 Filed 12/04/09 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER, by JAMES H. JACKSON, personal Representative for the ESTATE OF STEVEN BRODER,

Plaintiff, vs.

Case No. 03-75106 Honorable Marianne O. Battani Magistrate Paul J. Komives

CORRECTIONAL MEDICAL SERVICES, INC., CRAIG HUTCHINSON, its medical director, and and BENCY MATHAI, and employees of the Michigan Department of Corrections, namely: PATRICIA L. CARUSO, Director, GEORGE PRAMSTALLER, Medical Director, HENRY GRAYSON, former warden, and JAN EPPS, Regional Medical Director in their individual and official capacities,

Defendants.

_____________________________________________________________________

MICHIGANCLINICAL LAW PROGRAM

The Juip Richtarcik Law Firm.

Paul D. Reingold (P27594)

Randall A. Juip (P58538)

Attorneys for Plaintiff

Attorneys for Defendants Correctional

363 Legal Research Building

Medical Services, Inc., Craig

801 Monroe Street

Hutchinson, MD, and Bency Mathai MD

Ann Arbor, Michigan 48109-1215

The Penobscot Building

(734) 763-4319

645 Griswold, Ste. 3850

Detroit, MI 48226

A. Peter Govorchin (P31161)

(313) 859-5900

Scott R. Rothermel (P70711)

(313) 859-5900

Assistant Attorneys General

Attorney for Defendants Caruso,

Pramstaller and Epps

Corrections Division

P.O. Box 30217

Lansing, MI 48909

(517) 335-7021

______________________________________________________________________

ORDER OF DISMISSAL, WITH PREJUDICE, AS TO CORRECTIONAL MEDICAL SERVICES, INC., BENCY MATHAI, MD, AND CRAIG HUTCHINSON, MD

Case 2:03-cv-75106-MOB-PJK Document 172 Filed 12/04/09 Page 2 of 2
At a session of this Court, in the U.S. District Court, Eastern Division of Michigan, Southern Division on: December 4, 2009 PRESENT: MARIANNE O. BATTANI
US DISTRICT COURT JUDGE
THIS COURT, having received the stipulation of the parties hereto by and through their attorneys, understanding that this case is to be closed and is to be dismissed, in its entirety and with prejudice as against all defendants, specifically including Correctional Medical Services, Inc., Bency Mathai, MD, and Craig Hutchinson, MD, and otherwise being fully informed, states as follows:
IT IS HEREBY ORDERED that this case is dismissed, in its entirety and with prejudice as against all defendants, specifically including Correctional Medical Services, Inc., Bency Mathai, MD, and Craig Hutchinson, MD. The case shall now be closed.
s/Marianne O. Battani US DISTRICT COURT JUDGE
This order resolves the last pending claim and closes the case.
Stipulated to for entry by the Court: By: s/Paul D. Reingold with consent____
Paul D. Reingold (P27594) On behalf of Plaintiff
And: s/Randall A. Juip______________ Randall A. Juip (P58538) On behalf of CMS Defendants

 
 Case 2:03-cv-75106-MOB-PJK Document 171 Filed 10/27/09 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER, (#226094)

Plaintiff
v.
CORRECTIONAL MEDICAL SERVICES, INC., PATRICIA L. CARUSO, GEORGE PRAMSTALLER, HENRY GRAYSON, JAN EPP, in their individual and official capacities,

No. 03-cv-75106 HONORABLE MARIANNE O. BATTANI

Defendants.
Paul D. Reingold (P27594) Michigan Clinical Law Program Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, Michigan 48109-1215 (734) 763-4319
Thomas H. Blaske (P26760) John F. Turck IV (P67670) Blaske & Blaske, PLC Co-Counsel for Plaintiff 500 South Main Street Ann Arbor, MI 48104 (734) 747-7055

Randall A. Juip (P58538) Brian J. Richtarcik (P49390) Law Offices of Juip Richtarcik Attorneys for Defendants Craig Hutchinson,
Aubertro Antonini and Bency Mathai 645 Griswold, Suite 3850 Detroit, MI 48226 (313) 859-5900
A. Peter Govorchin (P31161) Scott R. Rothermel (P70711) Assistant Attorneys General Attorney for Defendants Pramstaller and Epps Corrections Division P. O. Box 30217 Lansing, Michigan 48909 (517) 335-7021

STIPULATION TO DISMISS WITH PREJUDICE, PLAINTIFF'S CLAIMS AGAINST DEFENDANTS DR. PRAMSTALLER AND EPP

NOW COMES Plaintiff James Jackson, the Personal Representative of the Estate of Steven

Broder, by counsel, and Defendants Dr. Pramstaller and Jan Epp, by counsel, and stipulate to entry of

an order dismissing the above action against Dr. Pramstaller and Jan Epp, with prejudice, and with

each side bearing their own costs or attorney fees.

Dated: October 26, 2009 Dated: October 26, 2009

/s/ Paul D. Reingold (w/permission) Paul D. Reingold Attorney for Plaintiff
A. Peter Govorchin (P31161) A. Peter Govorchin Assistant Attorney General Attorney for Defendant

1

Case 2:03-cv-75106-MOB-PJK Document 171 Filed 10/27/09 Page 2 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN BRODER, (#226094)

Plaintiff
v.
CORRECTIONAL MEDICAL SERVICES, INC., PATRICIA L. CARUSO, GEORGE PRAMSTALLER, HENRY GRAYSON, JAN EPP, in their individual and official capacities,

No. 03-cv-75106 HONORABLE MARIANNE O. BATTANI

Defendants.
Paul D. Reingold (P27594) Michigan Clinical Law Program Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, Michigan 48109-1215 (734) 763-4319
Thomas H. Blaske (P26760) John F. Turck IV (P67670) Blaske & Blaske, PLC Co-Counsel for Plaintiff 500 South Main Street Ann Arbor, MI 48104 (734) 747-7055

Randall A. Juip (P58538) Brian J. Richtarcik (P49390) Law Offices of Juip Richtarcik Attorneys for Defendants Craig Hutchinson,
Aubertro Antonini and Bency Mathai 645 Griswold, Suite 3850 Detroit, MI 48226 (313) 859-5900
A. Peter Govorchin (P31161) Scott R. Rothermel (P70711) Assistant Attorneys General Attorney for Defendants Pramstaller and Epps Corrections Division P. O. Box 30217 Lansing, Michigan 48909 (517) 335-7021
ORDER OF DISMISSAL

At a session of said Court held on the date set forth below.
PRESENT: Honorable Marianne O. Battani U.S. District Court Judge

Consistent with the attached stipulation to dismiss claims against Defendants Dr. Pramstaller

and Epp,

IT IS ORDERED that the above action be, and the same is hereby DISMISSED, with

prejudice, and each side to bear their own costs and attorney fees.

Date: October 27, 2009
Order Prepared By: A. Peter Govorchin (P31161) Attorney for Defendant
APGCases/2004001847A/Stip & Order to Dismiss 10-23-09

s/Marianne O. Battani Honorable Marianne O. Battani U.S. District Court Judge
2

 
 Nos. 08-1495/1514 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ______________________________________ STEVEN BRODER,
Plaintiff-Appellee, v. JAN EPP and GEORGE PRAMSTALLER,
Defendants-Appellants _______________________________________/
PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ RESPONSE TO ORDER TO SHOW CAUSE
Introduction This is a civil rights case for the late diagnosis and late treatment of the plaintiff Steven Broder’s throat cancer while he was in the custody and care of the defendants. Mr. Broder filed his case in 2003. These defendants filed a motion for summary judgment in 2006, in part raising the defense of qualified immunity. On March 14, 2008, the district court entered an order denying the defendants’ motion for summary judgment on that issue. The defendants had 30 days to file their notice of interlocutory appeal. The defendants waited until the last day to file their appeal, and the notice they filed was deficient on its face. Upon discovering that their claim of appeal was defective, the defendants filed an “amended” notice of appeal the next day, on April 15, 2008. Although the amended notice of appeal was plainly tardy, the defendants did not seek an extension of time in the district court, as they arguably could have done under Fed. R. Civ. P. 6, and as they had an absolute right to do for 30 days under Fed. R. App. P. 4(a)(5). On April 17, 2008, the Sixth Circuit case manager sent out notices to all counsel directing
1

them to file their appearances in this Court by May 1, 2008. Defense counsel did not file an appearance by May 1, 2008, and, upon information and belief, still has not filed an appearance.
On April 24, 2008, this Court entered a sua sponte order to show cause why the defendants’ appeal should not be dismissed, given that the first appeal was deficient and the second was time-barred. The order notified the defendants that they could cure the defect by seeking an extension of time in the district court pursuant to Fed. R. App. P. 4(a)(5). Indeed, at that point the defendants still had almost three weeks to file their motion for extension of time in the district court. The defendants did not file such a motion.
The defendants’ response to this Court’s show cause order was due 21 days after the order was entered, or May 21, 2008. The defendants did not file their response until May 30, 2008. They combined their response to the show cause order with a motion for extension of time under Fed. R. App. P. 4(a)(5), filing their motion in this Court, not in the district court as the rule requires.
ARGUMENT 1. The “Amended” Appeal Was Late The defendants concede that their original appeal was deficient, but argue that the second appeal was timely, citing the three-day mailing rule of Fed. R. App. P. 26(c). But of course the mailing rule only applies to papers served on a party, not to orders or judgments. Specifically, Rule 26(a) grants an additional three days when “a party is required ... to do an act within a prescribed period after service of a paper upon that party....” Fed. R. App. P. 26(c) (emphasis added). Rule 4(a), however, requires that a party file a notice of appeal “within 30 days after the date of entry of the judgment or order appealed from is entered.” Fed. R. App. P. 4(a)(1)(A) (emphasis added). Thus, Rule 26(c) is inapplicable. See Walls v. McClure, 1990 U.S. App.
2

LEXIS 14699, 911 F.2d 734 (6th Cir. 1990) (table) (holding that “[a] careful reading of the relevant procedural rules reveals that a would-be appellant is not entitled to an extra three days for filing a notice of appeal”).
2. The Motion to Extend Time Is Improper in this Court and Is Time-Barred The defendants next argue that their motion to extend the deadline should be heard now. First, as noted, they are in the wrong court, because Fed. R. App. P. 4(a)(5) grants authority to extend the deadline only to the district court. Second, and more importantly, they are too late. The text of Fed. R. App. P. 4(a)(5) requires that a motion to extend the appellate deadline be filed (i) before the deadline has run, or (ii) within 30 days after the deadline has run. The time to file a motion for extension of time expired on May 14, 2008, more than two weeks before the defendants filed their motion. Third, even if the motion were filed in the right court and on time, the defendants have not shown “good cause” or “excusable neglect.” See e.g., Nicholson v. City of Warren, 467 F.3d 525, 526 (6th Cir. 2006) (holding that excusable neglect is “a strict standard which is met only in extraordinary cases,” and good cause is found only “where forces beyond the control of the appellant prevented her from filing a timely notice of appeal”). Fourth, the district court cannot extend the time to appeal for more than 30 days (or more than ten days following the granting of a timely motion, whichever is later). Fed. R. App. P. 4(a) (5)(C). Finally, even a motion to re-open – which the defendants have not sought – is timely only if the moving party did not receive notice of the entry of the order sought to be appealed within 21 days after entry. Fed. R. App. P. 4(a)(6). That requirement cannot be met here, as the order was entered by the district court using the court’s electronic filing system, which delivered same-day e-mail notice to all counsel of record.
3

Summary The defendants have shown a clear pattern of failing to protect their rights by the choices they made. They waited until the last day to appeal. They filed a defective appeal. They filed a late amended appeal. Knowing that the appeal might be deemed to be late, they failed to file a timely motion to extend the deadline to appeal. They failed to file their appearance in this Court. They responded late to a show cause order that was served upon and received by the plaintiff’s counsel. They moved for an extension of time in the wrong court, and beyond the time when the deadline could be extended even in the right court. They made no showing of good cause or excusable neglect.
Conclusion For the above reasons, the plaintiff-appellee asks the Court to reject the defendant-appellants’ non-conforming notices of appeal, and to dismiss the pending cases so that Mr. Broder’s Eighth Amendment and medical malpractice claims can at long last be tried.
Respectfully submitted, MICHIGAN CLINICAL LAW PROGRAM s/ Paul D. Reingold Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu - (P27594) Ryan Fuoss and Annica Sunner Student Attorneys for the Plaintiff Dated: June 10, 2008
4

Proof of Service On June 10, 2008, the plaintiff’s objections to the defendants’ response to the order to show cause and motion for extension of time were served on the defendants by pre-paid firstclass mail addressed to their attorney of record.
s/ Paul D. Reingold Attorney for Plaintiff pdr@umich.edu - P-27594
5

 
 Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 1 of 15
CLOSED, IFP, reassigned
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:03−cv−75106−MOB−PJK

Broder v. Corr Med Svc Inc, et al Assigned to: District Judge Marianne O Battani Referred to: Magistrate Judge Paul J Komives Demand: $0
Case in other court: U.S. Court of Appeals − Sixth Circuit, 08−01495/1514

Date Filed: 12/24/2003 Date Terminated: 10/27/2009 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff

Steven Broder by James H Jackson, Personal Representative of the Estate of Steven Broder

represented by Paul D. Reingold University of Michigan 801 Monroe Street 363 Legal Research Bldg Ann Arbor, MI 48109 734−763−4319 Email: mclp@umich.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

John F. Turck Blaske &Blaske 500 S. Main Street Ann Arbor, MI 48104 734−747−7055 Email: jt4@blaske.com ATTORNEY TO BE NOTICED

Thomas H. Blaske Blaske &Blaske 500 S. Main Street Ann Arbor, MI 48104 734−747−7055 Fax: 734−747−8932 Email: clerks@blaske.com ATTORNEY TO BE NOTICED

V.
Defendant
Correctional Medical Services, Incorporated

represented by Brian J. Richtarcik The JuipRichtarcik Law Firm 645 Griswold Suite 3850 645 Griswold, Suite 3850 Detroit, MI 48226 United Sta 313−859−5900 Fax: 313 859−5959 Email: brichtarcik@me.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall A. Juip The JuipRichtarcik Law Office The Penobscot Building 645 Griswold St., Suite 3850 Detroit, MI 48226 313−859−5900

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 2 of 15

Fax: 313−859−5959 Email: rajuip@mac.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald W. Chapman Chapman Assoc. 40950 N. Woodward Avenue Suite 120 Bloomfield Hills, MI 48304 248−644−6326 Fax: 248−644−6324 Email: rchapman@chapmanlawfirmpc.com TERMINATED: 07/07/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Aubertro Antonini TERMINATED: 01/29/2007

represented by Brian J. Richtarcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall A. Juip (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald W. Chapman (See above for address) TERMINATED: 07/07/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John Axelson TERMINATED: 12/13/2004

Defendant
Malcolm Trimble TERMINATED: 12/13/2004

Defendant
Bey TERMINATED: 12/13/2004

Defendant Bency Mathai

represented by Brian J. Richtarcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall A. Juip (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald W. Chapman (See above for address) TERMINATED: 07/07/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 3 of 15

Defendant Ray H. Clark TERMINATED: 12/13/2004 Defendant Patricia L. Caruso Director TERMINATED: 03/14/2008
Defendant George Pramstaller Medical Director

represented by H. Steven Langschwager Michigan Department of Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909−7717 517−335−7021 TERMINATED: 07/28/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin M. Thom MI Dept of Atty Gen Corrections Division P. O. Box 30217 Lansing, MI 48909 517−335−7021 Email: thomk@michigan.gov TERMINATED: 03/14/2008
represented by A. Peter Govorchin Michigan Department of Attorney General 525 West Ottawa Street Suite 4th Floor, G. Mennen Williams Building P.O. Box 30217 Lansing, MI 48909 517−335−7021 Email: govorchinp@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
H. Steven Langschwager (See above for address) TERMINATED: 07/28/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dawn C.M. Jack MI Dept of Atty Gen PO Box 30217 Lansing, MI 48909−8236 517−335−7021 Fax: 517−335−7157 Email: jackd@michigan.gov TERMINATED: 05/06/2009
Kevin M. Thom (See above for address) TERMINATED: 01/29/2009
Scott R. Rothermel MI Dept of Attorney General 525 W. Ottawa Street P.O. Box 30217 Lansing, MI 48909 517−335−7021

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 4 of 15

Fax: 517−335−7157 Email: rothermels@michigan.gov ATTORNEY TO BE NOTICED

Defendant
Henry Grayson Warden TERMINATED: 08/17/2007

represented by Kevin M. Thom (See above for address) TERMINATED: 08/17/2007

Defendant
Jan Epp Regional Medical Director

represented by A. Peter Govorchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H. Steven Langschwager (See above for address) TERMINATED: 07/28/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dawn C.M. Jack (See above for address) TERMINATED: 05/06/2009

Kevin M. Thom (See above for address) TERMINATED: 01/29/2009

Scott R. Rothermel (See above for address) ATTORNEY TO BE NOTICED

Defendant Craig Hutchinson

represented by Randall A. Juip (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian J. Richtarcik (See above for address) ATTORNEY TO BE NOTICED

Ronald W. Chapman (See above for address) TERMINATED: 07/07/2009 ATTORNEY TO BE NOTICED

Date Filed 12/19/2003 12/24/2003
12/24/2003 01/28/2004

# Docket Text
1 APPLICATION by plaintiff Steven Broder to waive prepayment of the filing fee (JP) (Entered: 12/19/2003)
2 ORDER by Magistrate Judge Paul J. Komives granting application to waive prepayment of the filing fee by Steven Broder [1−1], directing payment of the initial partial filing fee and subsequent payments [EOD Date 12/29/03] (ew) (Entered: 12/29/2003)
3 COMPLAINT with exhibits and jury demand (ew) Modified on 12/29/2003 (Entered: 12/29/2003)
4 ORDER directing service without prepayment of cost and authorizing US Marshal to collect costs after service is made Signed by Magistrate Judge R. Steven

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 5 of 15

01/30/2004 02/09/2004 02/11/2004 02/18/2004 02/24/2004 02/24/2004
03/17/2004 03/18/2004 03/25/2004 03/25/2004 03/26/2004 04/12/2004
04/13/2004 04/22/2004
06/16/2004 06/29/2004
08/09/2004
08/23/2004 08/26/2004 08/26/2004 08/27/2004

Whalen. (DHame, ) (Entered: 02/07/2004)
5 ORDER Referring Pretrial Matters to Magistrate Judge Paul J Komives Signed by Judge Gerald E Rosen. (DHame, ) (Entered: 02/10/2004)
18 WAIVER OF SERVICE Returned Executed. George Pramstaller waiver sent on 1/29/2004, answer due 3/29/2004. (RHutc, ) (Entered: 05/04/2004)
17 Waiver of Service Returned Unexecuted as to Henry Grayson. (RHutc, ) (Entered: 05/04/2004)
6 WAIVER OF SERVICE Returned Executed. Jan Epps waiver sent on 2/11/2004, answer due 4/12/2004. (NHoll, ) (Entered: 03/02/2004)
7 ATTORNEY APPEARANCE: Ronald W. Chapman appearing on behalf of Correctional Medical Services, Incorporated. (NHoll, ) (Entered: 03/05/2004)
8 MOTION to Dismiss by Correctional Medical Services, Incorporated. (Attachments: # 1 Exhibit 1−3# 2 Document Continuation)(NHoll, ) (Entered: 03/05/2004)
9 RESPONSE to 8 Motion to Dismiss filed by Steven Broder. (NHoll, ) (Entered: 04/07/2004)
10 AFFIDAVIT of Meritorious defense by Leon Pedell, M. D. (NHoll, ) (Entered: 04/13/2004)
11 AFFIDAVIT of Meritorious Defenses by Silas Norman, Jr. M.D. (KGeha, ) (Entered: 04/15/2004)
12 CERTIFICATE OF SERVICE re 10 Affidavit (KGeha, ) (Entered: 04/15/2004)
13 REPLY to Response re 8 MOTION to Dismiss filed by Correctional Medical Services, Incorporated. (KGeha, ) (Entered: 04/16/2004)
14 ATTORNEY APPEARANCE: H. Steven Langschwager appearing on behalf of Patricia L. Caruso, Jan Epps, and George Pramstaller (JGilb, ) (Entered: 04/22/2004)
15 INITIAL PAYMENT of Filing fee: $ 59.30, receipt number 505867 by Steven Broder (JGilb, ) (Entered: 04/22/2004)
16 ANSWER to Complaint, with Affirmative Defenses and Jury Demand, by Patricia L. Caruso, Jan Epps, Henry Grayson, and George Pramstaller.(JGilb, ) (Entered: 04/26/2004)
19 NOTICE of filing fee paid in full (PPaul, ) (Entered: 06/21/2004)
20 MOTION to Compel Answers to Discovery as to defendants CMS, Antonni, Axelson, Trimble, Bey, Mathal and Clark by Steven Broder. (RHutc, ) (Entered: 07/01/2004)
21 REPORT AND RECOMMENDATION re 8 MOTION to Dismiss filed by Correctional Medical Services, Incorporated, 20 MOTION to Compel filed by Steven Broder Signed by Honorable Paul J Komives. (DHame, ) (Entered: 08/16/2004)
22 OBJECTION to 21 Report and Recommendation by Steven Broder. (Attachments: # 1 Document Continuation)(RHutc, ) (Entered: 08/26/2004)
25 Waiver of Service Returned Unexecuted as to Benzi Mathai. (RHutc, ) (Entered: 08/30/2004)
27 Waiver of Service Returned Unexecuted as to Ray H. Clark. (RHutc, ) (Entered: 08/30/2004)
23 WAIVER of Summons Returned Unexecuted as to Henry Grayson. (RHutc, ) Modified on 8/27/2004 (RHutc, ). (Entered: 08/27/2004)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 6 of 15

08/27/2004 08/27/2004 09/07/2004 09/07/2004 09/07/2004 09/09/2004 09/09/2004 09/22/2004
09/23/2004 09/27/2004 10/01/2004 10/06/2004 10/12/2004 10/12/2004 10/15/2004 10/18/2004 10/20/2004
10/20/2004
10/20/2004 10/20/2004

24 Waiver of Service Returned Unexecuted as to Bey. (RHutc, ) (Entered: 08/30/2004)
26 Waiver of Service Returned Unexecuted as to Malcolm Trimble. (RHutc, ) (Entered: 08/30/2004)
28 FIRST AMENDED ANSWER to Complaint by Patricia L. Caruso, Jan Epps, George Pramstaller. (RHutc, ) (Entered: 09/08/2004)
29 REPLY to 22 Objection to Report and Recommendation by Patricia L. Caruso, Jan Epps, George Pramstaller. (RHutc, ) (Entered: 09/08/2004)
30 MOTION for Leave to file Amended Answer by Patricia L. Caruso, Jan Epps, George Pramstaller. (RHutc, ) (Entered: 09/08/2004)
31 RESPONSE to 30 MOTION to Amend filed by plaintiffs. (RHutc, ) (Entered: 09/10/2004)
32 CERTIFICATE OF SERVICE by Steven Broder re 31 Response to Motion. (RHutc, ) (Entered: 09/10/2004)
35 ORDER Adopting in Part and with Modification 21 REPORT AND RECOMMENDATION and Dismissing Plaintiff's Complaint as to Defendant CMS, with Predudice. Signed by Honorable Gerald E Rosen. (RHutc, ) (Entered: 09/27/2004)
33 REPLY to Response re 30 MOTION to Amend/Correct filed by Patricia L. Caruso, Jan Epps, George Pramstaller. (RHutc, ) (Entered: 09/24/2004)
34 NOTICE of hearing on 30 MOTION to Amend/Correct. Motion Hearing set for 10/13/2004 11:00 AM before Honorable Paul J Komives. (SJef, ) (Entered: 09/27/2004)
36 MOTION to Amend the complaint by Steven Broder. (RHutc, ) (Entered: 10/05/2004)
37 NOTICE of hearing on 36 MOTION to Amend/Correct. Motion Hearing set for 10/13/2004 11:00 AM before Honorable Paul J Komives. (SJef, ) (Entered: 10/06/2004)
38 AMENDED NOTICE of hearing on 30 MOTION to Amend/Correct, 36 MOTION to Amend/Correct. Motion Hearing set for 10/20/2004 11:00 AM before Honorable Paul J Komives. (SJef, ) (Entered: 10/12/2004)
39 MOTION for Leave to Take the deposition of prisoner by Patricia L. Caruso, Jan Epps, George Pramstaller. (RHutc, ) (Entered: 10/14/2004)
40 SUMMONS Returned Executed. Aubertro Antonini served on 10/2/2004, answer due 10/22/2004 (RHutc, ) (Entered: 10/19/2004)
41 ANSWER to Complaint with Jury Demand by Aubertro Antonini, Benzi Mathai.(DTyle, ) (Entered: 10/19/2004)
Minute Entry −Motion Hearing held on 10/20/2004 re 30 MOTION to Amend/Correct filed by Patricia L. Caruso, Jan Epps, George Pramstaller, 36 MOTION to Amend/Correct filed by Steven Broder before Honorable Paul J Komives. Disposition: TAKEN UNDER ADVISEMENT (Tape #04−018) (SJef, ) (Entered: 10/20/2004)
Minute Entry −Motion Hearing held on 10/20/2004 re 39 MOTION for Leave to File filed by Patricia L. Caruso, Jan Epps, George Pramstaller before Honorable Paul J Komives. Disposition: TAKEN UNDER ADVISEMENT (Tape #04−018) (SJef, ) (Entered: 10/20/2004)
42 ORDER granting 39 Motion for Leave to take deposition of prisoner− Signed by Honorable Paul J Komives. (RHutc, ) (Entered: 10/22/2004)
43 ORDER granting 36 Motion to Amend Complaint.− Signed by Honorable Paul J Komives. (RHutc, ) (Entered: 10/22/2004)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 7 of 15

11/02/2004 11/09/2004 11/12/2004 12/06/2004 12/13/2004 12/13/2004 12/30/2004 12/30/2004 12/30/2004 12/30/2004 02/08/2005 03/03/2005 03/11/2005 04/04/2005 04/05/2005 04/12/2005 05/03/2005 05/04/2005 05/24/2005 06/17/2005 08/17/2005 10/25/2005 11/03/2005 11/03/2005

44 AFFIDAVIT by Leo Pedell, M.D. of meritorious defense concerning Aubertro Antonni, MD.(RHutc, ) (Entered: 11/03/2004)
45 ORDER granting 30 Motion to Amend Answer− Signed by Honorable Paul J Komives. (RHutc, ) (Entered: 11/15/2004)
46 MEMORANDUM regarding Dismissal filed by Steven Broder. (RHutc, ) (Entered: 11/16/2004)
47 ORDER for Steven Broder to Show Cause why this case should not be dismissed. Signed by Honorable Paul J Komives. (RHutc, ) (Entered: 12/07/2004)
48 RESPONSE TO ORDER TO SHOW CAUSE by Steven Broder. (RHutc, ) (Entered: 12/16/2004)
49 AMENDED COMPLAINT filed by Steven Broder against Defendants(RHutc, ) (Entered: 12/16/2004)
50 ANSWER to First Amended Complaint with Jury Demand by Craig Hutchinson, Aubertro Antonini, Benzi Mathai.(RHutc, ) (Entered: 01/05/2005)
51 NOTICE of filing reliance on affidavit of meritiorious defense by Aubertro Antonini, Craig Hutchinson, Benzi Mathai (RHutc, ) (Entered: 01/05/2005)
52 NOTICE of non−party fault filed by Aubertro Antonini, Craig Hutchinson, Benzi Mathai (RHutc, ) (Entered: 01/05/2005)
53 NOTICE of Appearance by Ronald W. Chapman on behalf of Aubertro Antonini, Craig Hutchinson, Benzi Mathai. (RHutc, ) (Entered: 02/10/2005)
54 ORDER Directing Plaintiff to provide correct address for defendant Grayson Signed by Honorable Paul J Komives. (RHutc, ) (Entered: 02/18/2005)
55 RESPONSE to order to provide correct address by Steven Broder. (RHutc, ) (Entered: 03/07/2005)
56 ADDRESS of Henry Grayson (filed under seal). (DPer, ) (Entered: 03/14/2005)
57 ORDER Directing the Clerk of the Court to Unseal and then Reseal the Court File. Signed by Honorable Gerald E Rosen. (NHoll, ) (Entered: 04/06/2005)
58 CERTIFICATE OF SERVICE of Summons, Complaint and Order. (NHoll, ) (Entered: 04/06/2005)
59 ORDER to Take Plaintiff's Deposition pursuant to FRCP 30. Signed by Honorable Paul J Komives. (NHoll, ) (Entered: 04/18/2005)
60 ATTORNEY APPEARANCE: Kevin M. Thom appearing on behalf of Henry Grayson with Certificate of Service.(Thom, Kevin) (Entered: 05/03/2005)
61 WAIVER OF SERVICE returned executed. Henry Grayson waiver sent on 4/13/2005, answer due 6/13/2005. (DPer, ) (Entered: 05/05/2005)
62 NOTICE of hearing. Motion Hearing set for 8/1/2005 10:00 AM before Honorable Paul J Komives. (EBut, ) (Entered: 05/24/2005)
63 NOTICE of hearing. Motion Hearing set for 8/17/2005 09:30 AM before Honorable Paul J Komives. (EBut, ) (Entered: 06/17/2005)
64 SCHEDULING ORDER: Discovery due by 11/1/2005. Signed by Honorable Paul J Komives. (Refer to image for additional dates)(EBut, ) (Entered: 08/18/2005)
65 MOTION TO EXTEND Discovery and other schedule deadlines by Steven Broder. (Reingold, Paul) (Entered: 10/25/2005)
66 EXPERT WITNESS LIST by Aubertro Antonini, Craig Hutchinson, Benzi Mathai (Richtarcik, Brian) (Entered: 11/03/2005)
67 Preliminary Expert WITNESS LIST by Steven Broder (Reingold, Paul) (Entered: 11/03/2005)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 8 of 15

11/16/2005 12/15/2005 04/04/2006 04/26/2006 07/28/2006 07/28/2006 08/14/2006 08/15/2006 09/27/2006 11/30/2006 11/30/2006 11/30/2006
12/01/2006 12/04/2006 12/05/2006

68 ORDER granting 65 Motion to Extend MOTION TO EXTEND Discovery and other schedule deadlines− Signed by Honorable Paul J Komives. (EBut, ) (Entered: 11/17/2005)
69 ORDER to extend scheduling order dates. Signed by Honorable Paul J Komives. (EBut, ) (Entered: 12/21/2005)
70 STIPULATION to Extend Scheduling Order by Steven Broder. (Attachments: # 1 proposed order extending scheduling# 2 Proof of Service)(Reingold, Paul) (Entered: 04/04/2006)
71 ORDER to Extend scheduling order dates for 60 days. Signed by Honorable Paul J Komives. (DEld, ) (Entered: 04/27/2006)
72 MOTION TO EXTEND Time to File a Dispositive Motion with Brief in Support and Certificate of Service by George Pramstaller, Jan Epps, Patricia L. Caruso. (Thom, Kevin) (Entered: 07/28/2006)
73 ATTORNEY SUBSTITUTION for George Pramstaller, Jan Epps, Patricia L. Caruso: Kevin M. Thom added. Attorney H. Steven Langschwager terminated. with Certificate of Service..(Thom, Kevin) (Entered: 07/28/2006)
74 RESPONSE to 72 MOTION TO EXTEND Time to File a Dispositive Motion with Brief in Support and Certificate of Service filed by Correctional Medical Services, Incorporated, Aubertro Antonini, Craig Hutchinson, Benzi Mathai. (Attachments: # 1 Exhibit Exhibit A Letter dated 7/26/06)(Richtarcik, Brian) (Entered: 08/14/2006)
75 ORDER granting 72 Motion to Extend − Signed by Honorable Paul J Komives. (EBut, ) (Entered: 08/15/2006)
76 [FILIN ERROR − R11; PROPOSED ORDERS] STIPULATION to Dismiss by Henry Grayson. (Attachments: # 1 Index of Exhibits # 2 Exhibit 1−− Stipulation w/Actual signatures)(Thom, Kevin) Modified on 9/27/2006 (SMar, ). (Entered: 09/27/2006)
77 MOTION TO EXTEND Time to File Dispositive Motions with Brief in Support and Certificate of Service by George Pramstaller, Jan Epps, Patricia L. Caruso. (Thom, Kevin) (Entered: 11/30/2006)
78 [FILING ERROR − WRONG EVENT USED] MOTION for Summary Judgment by Craig Hutchinson, Benzi Mathai. (Richtarcik, Brian) Modified on 12/1/2006 (CGre, ). (Entered: 11/30/2006)
79 MOTION for Summary Judgment by Craig Hutchinson, Benzi Mathai. (Attachments: # 1 Index of Exhibits Index of Exhibits# 2 Exhibit A−1 MDOC Medical Chart# 3 Exhibit A−2 MDOC Medical Chart continued# 4 Exhibit B − Dep of Audberto Antonino, MD# 5 Exhibit C − Dep of Bency Mathai, MD# 6 Exhibit D − Dep of Ronald Kornak, MD# 7 Exhibit E − Dep of James Hayman, MD# 8 Exhibit F − Dep of Christine Tsien, MD# 9 Exhibit G − Dep of John Axelson, MD# 10 Exhibit H − Dep of Carol Bradford, MD# 11 Exhibit I − Notice of Intent# 12 Exhibit J − Original Complaint# 13 Exhibit K − Affidavits of Merit# 14 Exhibit L − First Amended Complaint# 15 Exhibit M − Affidmative Defenses# 16 Exhibit N − Specialty Consults/Reorts by MDOC# 17 Exhibit O − Dep of Brent Williams, MD# 18 Exhibit P Baily V Pornpichit care)(Richtarcik, Brian) (Entered: 12/01/2006)
80 [FILING ERROR RESPONSE FILED WITHOUT BRIEF] RESPONSE to 77 MOTION TO EXTEND Time to File Dispositive Motions with Brief in Support and Certificate of Service filed by Steven Broder. (Reingold, Paul) Modified on 12/4/2006 (BSoc, ). (Entered: 12/01/2006)
81 RESPONSE to 77 MOTION TO EXTEND Time to File Dispositive Motions with Brief in Support and Certificate of Service motion with brief in support and pos filed by Steven Broder. (Reingold, Paul) (Entered: 12/04/2006)
82 ORDER granting 77 Motion to Extend − Signed by Honorable Paul J Komives. (EBut, ) (Entered: 12/05/2006)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 9 of 15

12/20/2006 12/20/2006 12/20/2006
12/20/2006
12/20/2006
12/20/2006 01/02/2007 01/19/2007 01/19/2007 01/24/2007 01/29/2007 02/07/2007 02/07/2007

83 Ex Parte MOTION for Leave to File Excess Pages and Brief by all plaintiffs. (Reingold, Paul) (Entered: 12/20/2006)
84 RESPONSE to 79 MOTION for Summary Judgment Brief in Response to Defendants Motion for Summary Judgment filed by Steven Broder. (Attachments: # 1 Index of Exhibits Index of Exhibits# 2 Exhibit A Brent Williams Report# 3 Exhibit B Carol Bradford Report)(Reingold, Paul) (Entered: 12/20/2006)
85 EXHIBIT C−O re 84 Response to Motion, by Steven Broder. (Attachments: # 1 Exhibit C 2 Medical Chart# 2 Exhibit D 1 Medical Records# 3 Exhibit D2 Medical Records# 4 Exhibit D 3 Medical Records# 5 Exhibit D 4 Medical Records# 6 Exhibit D 5 Medical Records# 7 Exhibit D 6 Medical Records# 8 Exhibit E Grievances etc# 9 Exhibit F 1Pramstaller Dep# 10 Exhibit F 2 Pramstaller Dep# 11 Exhibit G Broder Dep# 12 Exhibit H Mathai Dep# 13 Exhibit I Hutchinson Dep# 14 Exhibit J Antonini Dep# 15 Exhibit K Hayman Dep# 16 Exhibit L Tsien Dep# 17 Exhibit M Williams Dep# 18 Exhibit N Bradford Dep# 19 Exhibit O Norman Dep)(Reingold, Paul) (Entered: 12/20/2006)
86 EXHIBIT P−U re 84 Response to Motion, by Steven Broder. (Attachments: # 1 Exhibit P 2 Hadix case 2002# 2 Exhibit P 3 Hadix case 2002# 3 Exhibit P 4 Hadix case 2002# 4 Exhibit Q Hadix case 2006# 5 Exhibit R Complaint 03−12.17# 6 Exhibit S Notice of Intent 03.04.27# 7 Exhibit T 1 Aff. of Merit Bradford# 8 Exhibit T 2 Aff of Merit Williams# 9 Exhibit U 2 Zemaitis v Spectrum# 10 Index of Exhibits U 1 Boodt v Borgess)(Reingold, Paul) (Entered: 12/20/2006)
87 MOTION to Dismiss and/or for Summary Judgment with Brief in Support and Certificate of Service by George Pramstaller, Jan Epps, Patricia L. Caruso. (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 (part 1) Deposition Transcript of Steven Broder# 3 Exhibit 1 (part 2) Deposition Transcript of Steven Broder# 4 Exhibit 2 − Defendant Pramstaller's Responses to Pltf's Second Set of Interrogatories# 5 Exhibit 3 − Deposition Transcript of Brent Cutler Williams, M.D.# 6 Exhibit 4 − Defendant Epps' Responses to Plaintiff's Second Set of Interrogatories# 7 Exhibit 5 − 12/6/06 Opinion/Order in Irving v. Kelly, et al)(Thom, Kevin) (Entered: 12/20/2006)
88 MOTION for Leave to File Excess Pages with Brief in Support and Certificate of Service by George Pramstaller, Jan Epps, Patricia L. Caruso. (Thom, Kevin) (Entered: 12/20/2006)
89 EXHIBIT T Signed re 84 Response to Motion, by Steven Broder. (Attachments: # 1 Exhibit T Affidavit Bradford Signed# 2 Exhibit T Affidavit Williams Signed)(Reingold, Paul) (Entered: 01/02/2007)
90 RESPONSE to 87 MOTION to Dismiss and/or for Summary Judgment with Brief in Support and Certificate of Service Brief in Response to Defendants' Motion filed by Steven Broder. (Attachments: # 1 Index of Exhibits Index# 2 Exhibit 1 Pramstaller dep# 3 Exhibit 2 Barrett dep)(Reingold, Paul) (Entered: 01/19/2007)
91 Ex Parte MOTION for Leave to File Excess Pages with brief by Steven Broder. (Reingold, Paul) (Entered: 01/19/2007)
92 MOTION for Extension of Time to File Response/Reply as to 90 Response to Motion, with Brief in Support and Certificate of Service by George Pramstaller, Jan Epps, Patricia L. Caruso. (Thom, Kevin) (Entered: 01/24/2007)
93 STIPULATION AND ORDER to Dismiss Aubertro Antonini with prejudice. Signed by Honorable Paul J Komives. (CGre, ) (Entered: 01/30/2007)
94 NOTICE by George Pramstaller, Jan Epps, Patricia L. Caruso re 87 MOTION to Dismiss and/or for Summary Judgment with Brief in Support and Certificate of Service Withdrawal of Argument "G" in their Motion to Dismiss and/or for Summary Judgment (Thom, Kevin) (Entered: 02/07/2007)
95 Second MOTION for Extension of Time to File Response/Reply as to 90 Response to Motion,, 92 MOTION for Extension of Time to File Response/Reply as to 90 Response to Motion, with Brief in Support and Certificate of Service by George Pramstaller, Jan Epps, Patricia L. Caruso. (Thom, Kevin) (Entered: 02/07/2007)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 10 of 15

03/26/2007
03/26/2007 08/17/2007 08/17/2007 08/29/2007 09/05/2007 09/13/2007
09/14/2007 09/19/2007
09/21/2007
09/21/2007 09/25/2007 09/25/2007 09/26/2007

96 ORDER granting 78 [WRONG EVENT USED− Titled a Motion for excess pages not motion for summary judgment] Motion for Summary Judgment; granting 83 Motion for Leave to File Excess Pages; granting 88 Motion for Leave to File Excess Pages; granting 91 Motion for Leave to File Excess Pages. Signed by Honorable Paul J Komives. (EBut) Modified on 8/17/2007 (Hemeyer, C.). (Entered: 03/26/2007)
97 ORDER finding as moot 92 Motion for Extension of Time to File Response/Reply ; granting 95 Motion for Extension of Time to File Response/Reply. Signed by Honorable Paul J Komives. (EBut) (Entered: 03/26/2007)
98 ORDER of DISQUALIFICATION and REASSIGNING CASE from Judge Gerald E Rosen to Judge Nancy G Edmunds. Signed by Honorable Gerald E Rosen. (SSch) (Entered: 08/17/2007)
99 ORDER Dismissing Henry Grayson pursuant to Stipulation filed 9/27/2006. Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 08/17/2007)
100 REPORT AND RECOMMENDATION re 79 MOTION for Summary Judgment filed by Benzi Mathai, Craig Hutchinson Signed by Honorable Paul J Komives. (EBut) (Entered: 08/29/2007)
101 REPORT AND RECOMMENDATION re 87 MOTION to Dismiss and/or for Summary Judgment with Brief in Support and Certificate of Service filed by George Pramstaller, Jan Epps, Patricia L. Caruso Signed by Honorable Paul J Komives. (EBut) (Entered: 09/05/2007)
102 OBJECTION to 100 Report and Recommendation by Craig Hutchinson, Benzi Mathai. (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Report and Recommendation# 3 Exhibit B − Defendants Mathai and Hutchinson's Motion to Dismiss# 4 Exhibit C − MDOC Policy Directive 03.04.100 re Health Services# 5 Exhibit D − Williams v United States case# 6 Exhibit E − Hun Dae Lee v. Putz case# 7 Exhibit F − Deposition of Bency Mathai, MD) (Richtarcik, Brian) (Entered: 09/13/2007)
103 ORDER of DISQUALIFICATION and REASSIGNING CASE from Judge Nancy G Edmunds to Judge Marianne O Battani. Signed by Honorable Nancy G Edmunds. (SSch) (Entered: 09/14/2007)
104 RESPONSE to 101 REPORT AND RECOMMENDATION re 87 MOTION to Dismiss and/or for Summary Judgment with Brief in Support and Certificate of Service filed by George Pramstaller, Jan Epps, Patricia L. Caruso Ojections to R and R as to the MDOC Defendants filed by Steven Broder. (Reingold, Paul) (Entered: 09/19/2007)
105 [FILING ERROR DOCUMENT FILED IS A MOTION] RESPONSE to 21 REPORT AND RECOMMENDATION re 8 MOTION to Dismiss filed by Correctional Medical Services, Incorporated, 20 MOTION to Compel filed by Steven Broder, 35 Order, 8 MOTION to Dismiss Motion and brief to revisit the dismissal of Defendant CMS by Steven Broder. (Reingold, Paul) Modified on 9/21/2007 (Socia, B.). (Entered: 09/21/2007)
106 MOTION TO EXTEND Time to File Objections to the Magistrate Judge's Report and Recommendation with Certificate of Service by George Pramstaller, Jan Epps, Patricia L. Caruso. (Thom, Kevin) (Entered: 09/21/2007)
107 ORDER granting 106 Motion to Extend. Signed by Honorable Marianne O Battani. (BThe) (Entered: 09/25/2007)
Set/Reset Deadlines as to Objections to RRdue by 10/12/2007 (BThe) (Entered: 09/25/2007)
108 RESPONSE to 100 REPORT AND RECOMMENDATION re 79 MOTION for Summary Judgment filed by Benzi Mathai, Craig Hutchinson, 102 Objection to Report and Recommendation, by Steven Broder. (Reingold, Paul) (Entered: 09/26/2007)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 11 of 15

10/05/2007
10/11/2007 10/12/2007 10/24/2007
03/14/2008
03/14/2008
03/14/2008 04/04/2008 04/07/2008 04/14/2008 04/14/2008 04/15/2008 04/15/2008 04/17/2008 04/22/2008 04/23/2008 07/29/2008

109 RESPONSE to 105 Response (Free), Response (Free) to Plaintiff's Motion and Brief to Revisit the Dismissal of the Corporate Defendant CMS in Light of New Case Law by Craig Hutchinson, Benzi Mathai. (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 − Affidavit of Brian Richtarcik# 3 Exhibit 2 − MDOC Policy Directive 03.02.130# 4 Exhibit 3 − United States v. Gary case# 5 Exhibit 4 − United States v. Sparks case# 6 Exhibit 5 − Kim v. Harvey case) (Richtarcik, Brian) (Entered: 10/05/2007)
110 REPLY to 105 Response (Free), Response (Free), 109 Response (Free), Response (Free) Brief in Support of Plaintiff's Motion to Revisit by Steven Broder. (Reingold, Paul) (Entered: 10/11/2007)
111 OBJECTION to 101 Report and Recommendation with Certificate of Service by George Pramstaller, Jan Epps, Patricia L. Caruso. (Thom, Kevin) (Entered: 10/12/2007)
112 RESPONSE to 101 REPORT AND RECOMMENDATION re 87 MOTION to Dismiss and/or for Summary Judgment with Brief in Support and Certificate of Service filed by George Pramstaller, Jan Epps, Patricia L. Caruso, 111 Objection to Report and Recommendation by Steven Broder. (Reingold, Paul) (Entered: 10/24/2007)
113 OPINION AND ORDER Adopting Report and Recommendation for 100 Report and Recommendation. Accordingly, Defendant's Motion to Dismiss and/or for Summary Judgment is Granted in part and Denied in part. Signed by Honorable Marianne O Battani. (BThe) (Entered: 03/14/2008)
114 OPINION AND ORDER Granting Plaintiff's re 105 Motion to Revisit the Dismissal of the Corporate Defendant CMS in light of new case law filed by Steven Broder. Signed by Honorable Marianne O Battani. (BThe) (Entered: 03/14/2008)
115 OPINION AND ORDER Adopting Report and Recommendation for 101 Report and Recommendation Signed by Honorable Marianne O Battani. (BThe) (Entered: 03/14/2008)
116 MOTION Prison Visit, Medical Exam, Deposition, and Discovery by Steven Broder. (Attachments: # 1 Index of Exhibits List of Exhibits, # 2 Exhibit 1 −Greenberg Letter, # 3 Exhibit 2 Referral) (Reingold, Paul) (Entered: 04/04/2008)
Minute Entry −Telephone Conference held on 4/7/2008 before District Judge Marianne O Battani. (CMot) (Entered: 04/08/2008)
117 NOTICE OF APPEAL by George Pramstaller, Jan Epps. Fee Status: No Fee Paid. (Thom, Kevin) (Entered: 04/14/2008)
118 Certificate of Service re 117 Notice of Appeal. (CGre) (Entered: 04/14/2008)
119 NOTICE OF APPEAL by George Pramstaller, Jan Epps re 115 Order Adopting Report and Recommendation. Fee Status: No Fee Paid. (Thom, Kevin) (Entered: 04/15/2008)
120 Certificate of Service re 119 Notice of Appeal. (BSoc) (Entered: 04/15/2008)
Appeal Fee received for 119 Notice of Appeal filed by George Pramstaller, Jan Epps in the amount of $ 455 − Receipt No. 569738[NO IMAGE UPLOADED]. (KByr) (Entered: 04/17/2008)
121 CONSENT AND ORDER For Expert Medical Examinations. Signed by District Judge Marianne O Battani. (BThe) (Entered: 04/22/2008)
122 NOTICE by Steven Broder of withdrawal of 116 MOTION Prison Visit, Medical Exam, Deposition, and Discovery. (Reingold, Paul) (Entered: 04/23/2008)
123 ORDER from U.S. Court of Appeals − Sixth Circuit re 119 Notice of Appeal filed by George Pramstaller, Jan Epps, 117 Notice of Appeal filed by George Pramstaller, Jan Epps − Disposition: Dismissed [Appeal Case Number 08−1495/1514] (BSoc) (Entered: 07/30/2008)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 12 of 15

08/21/2008 08/25/2008 08/26/2008 08/29/2008
08/29/2008 09/04/2008 09/04/2008
09/05/2008 09/23/2008
10/06/2008 10/06/2008 10/07/2008 12/18/2008 12/22/2008
01/08/2009 01/09/2009

124 MOTION TO EXTEND Scheduling Order Dates by Correctional Medical Services, Incorporated, Craig Hutchinson, Benzi Mathai. (Attachments: # 1 Exhibit A − Shane v Bunzel Distrib. USA, Inc. case) (Richtarcik, Brian) (Entered: 08/21/2008)
125 NOTICE of hearing on 124 MOTION TO EXTEND Scheduling Order Dates. Motion Hearing set for 9/23/2008 03:00 PM before District Judge Marianne O Battani. (CMot) (Entered: 08/25/2008)
126 RESPONSE to 124 MOTION TO EXTEND Scheduling Order Dates Concurrence with Co−Defense Counsel's Motion with Certificate of Service filed by George Pramstaller, Jan Epps. (Thom, Kevin) (Entered: 08/26/2008)
127 MOTION for Protective Order Pursuant to HIPAA by Correctional Medical Services, Incorporated, Craig Hutchinson, Benzi Mathai. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Proposed Qualified Protective Order, # 3 Exhibit B − Croskey v BMW of North America, et al case, # 4 Exhibit C − Shropshire v Laidlaw Transit, Inc. case) (Richtarcik, Brian) (Entered: 08/29/2008)
128 RESPONSE to 127 MOTION for Protective Order Pursuant to HIPAA filed by Steven Broder. (Reingold, Paul) (Entered: 08/29/2008)
129 RESPONSE to 124 MOTION TO EXTEND Scheduling Order Dates filed by Steven Broder. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex 1 All counsel letter, # 3 Exhibit Ex 2 Pl's letter, # 4 Exhibit Ex 3 Pl's letter, # 5 Exhibit Ex 4 MDOC defs letter) (Reingold, Paul) (Entered: 09/04/2008)
130 MOTION to Withdraw Qualified Protective Order Pursuant to HIPAA by Correctional Medical Services, Incorporated, Craig Hutchinson, Benzi Mathai. (Richtarcik, Brian) Modified on 9/4/2008 (DHam). [DOCUMENT NOT A MOTION, IT'S A NOTICE OF WITHDRAWAL OF MOTION #127] (Entered: 09/04/2008)
131 STIPULATED QUALIFIED PROTECTIVE ORDER PURSUANT TO HIPAA. Signed by District Judge Marianne O Battani. (CMot) (Entered: 09/05/2008)
Minute Entry −Motion Hearing held on 9/23/2008 re 124 MOTION TO EXTEND Scheduling Order Dates filed by Benzi Mathai, Craig Hutchinson, Correctional Medical Services, Incorporated before District Judge Marianne O Battani. Disposition: GRANTED(Court Reporter Allen Burnham) (CMot) (Entered: 09/23/2008)
132 ORDER granting 124 Motion to Extend MOTION TO EXTEND Scheduling Order Dates (See image for additional details.). Signed by District Judge Marianne O Battani. (CMot) (Entered: 10/06/2008)
Reset Scheduling Order Deadlines: Discovery due by 1/21/2009 (CMot) (Entered: 10/06/2008)
133 TRIAL MANAGEMENT ORDER: Motions in Limine due by 2/13/2009; Final Pretrial Conference and Motion Hearing set for 2/19/2009 02:00 PM; Jury Trial set for 3/9/2009 09:00 PM. Signed by District Judge Marianne O Battani. (BThe) (Entered: 10/07/2008)
Minute Entry −Telephone Conference held on 12/18/2008 before District Judge Marianne O Battani. (CMot) (Entered: 12/18/2008)
134 SCHEDULING ORDER: Discovery due by 5/30/2009 Final Pretrial Conference set for 9/29/2009 02:00 PM before District Judge Marianne O Battani Jury Trial set for 10/6/2009 09:00 PM before District Judge Marianne O Battani (SEE IMAGE FOR FURTHER DETAILS). Signed by District Judge Marianne O Battani. (Refer to image for additional dates) (BThe) (Entered: 12/22/2008)
135 NOTICE of Appearance by Dawn C.M. Jack on behalf of George Pramstaller, Jan Epps. (Jack, Dawn) (Entered: 01/08/2009)
136 STIPULATED ORDER to Extend Time to Extend Time to Choose a Facilitator. Signed by District Judge Marianne O Battani. (CMot) (Entered: 01/09/2009)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 13 of 15

01/29/2009 02/17/2009 02/23/2009
03/16/2009 03/16/2009 03/18/2009 03/24/2009 03/31/2009 04/02/2009
04/09/2009
04/09/2009
04/13/2009 04/13/2009
04/13/2009 04/24/2009
05/01/2009 05/01/2009

137 NOTICE of Withdrawal of Attorney Kevin M. Thom by George Pramstaller, Jan Epps. (Thom, Kevin) (Entered: 01/29/2009)
138 STIPULATED ORDER Granting Leave to Substitute the Plaintiff's Personal Representative/Estate. Signed by District Judge Marianne O Battani. (CGre) (Entered: 02/18/2009)
139 STIPULATION AND ORDER Amending Scheduling Order, ( Expert Reports due by 5/15/2009, Expert Depositions to be completed by 5/30/2009, Mediation moved up to late March early April '09.) Signed by District Judge Marianne O Battani. (BThe) (Entered: 02/23/2009)
140 Defendants' WITNESS LIST by Correctional Medical Services, Incorporated, Craig Hutchinson, Benzi Mathai (Richtarcik, Brian) (Entered: 03/16/2009)
141 WITNESS LIST by Steven Broder (Reingold, Paul) (Entered: 03/16/2009)
142 Defendants Pramstaller and Epp's WITNESS LIST by George Pramstaller, Jan Epps (Jack, Dawn) (Entered: 03/18/2009)
143 MOTION to Amend/Correct for Leave to Amend Complaint by Steven Broder. (Attachments: # 1 Exhibit Ex. Amended complaint) (Reingold, Paul) (Entered: 03/24/2009)
Set Hearings: Telephone Conference re Motion for Leave to Amend Complaint set for 4/6/2009 11:00 AM before District Judge Marianne O Battani (CMot) (Entered: 03/31/2009)
144 AMENDED NOTICE of hearing via telephone conference on 143 MOTION to Amend/Correct for Leave to Amend Complaint. Motion Hearing set for 4/13/2009 10:30 AM before District Judge Marianne O Battani. (See image for additional details.) (CMot) (Entered: 04/02/2009)
145 Ex Parte MOTION for Leave to File Excess Pages Pursuant to E.D. MICH. LR 7.1 by Correctional Medical Services, Incorporated, Craig Hutchinson, Benzi Mathai. (Attachments: # 1 Exhibit A − Order Granting Leave to File Brief in Excess of 20 Pages Pursuant to E.D. MICH. LR 7.1) (Richtarcik, Brian) (Entered: 04/09/2009)
146 RESPONSE to 143 MOTION to Amend/Correct for Leave to Amend Complaint filed by Correctional Medical Services, Incorporated, Craig Hutchinson, Benzi Mathai. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − MDOC Chart, # 3 Exhibit B − U of M Chart, # 4 Exhibit C − Will, # 5 Exhibit D − Schneemilch v Shields case) (Richtarcik, Brian) (Entered: 04/09/2009)
147 ORDER granting 145 Motion for Leave to File Excess Pages. Signed by District Judge Marianne O Battani. (CMot) (Entered: 04/13/2009)
Minute Entry −Motion Hearing held on 4/13/2009 re 143 MOTION to Amend/Correct for Leave to Amend Complaint filed by Steven Broder before District Judge Marianne O Battani. (Court Reporter Allen Burnham) (CMot) (Entered: 04/13/2009)
148 ORDER granting 143 Motion to Amend/Correct. Signed by District Judge Marianne O Battani. (CMot) (Entered: 04/13/2009)
149 AMENDED COMPLAINT with Jury Demand filed by Steven Broder against Steven Broder. (Reingold, Paul) Modified on 5/4/2009 (PMil).[AMENDED COMPLAINT IS FILED AGAINST CORRECTIONAL MEDICAL SERVICES, INC, CRAIG HUTCHINSON, BENCY MATHAI, GEORGE PRAMSTALLER AND JAN EPP] (Entered: 04/24/2009)
150 ANSWER to 149 Amended Complaint by Correctional Medical Services, Incorporated, Craig Hutchinson, Benzi Mathai. (Richtarcik, Brian) (Entered: 05/01/2009)
151 AFFIRMATIVE DEFENSES by Correctional Medical Services, Incorporated, Craig Hutchinson, Benzi Mathai (Richtarcik, Brian) (Entered: 05/01/2009)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 14 of 15

05/01/2009 05/06/2009 05/07/2009 05/15/2009
05/19/2009 05/20/2009 05/21/2009 05/29/2009 06/08/2009 06/16/2009 06/25/2009 06/26/2009 06/26/2009 06/26/2009 06/29/2009 07/07/2009
09/04/2009 09/09/2009 09/16/2009

152 NOTICE by Correctional Medical Services, Incorporated, Craig Hutchinson, Benzi Mathai Reliance on Jury Demand (Richtarcik, Brian) (Entered: 05/01/2009)
153 ATTORNEY SUBSTITUTION for George Pramstaller, Jan Epp: A. Peter Govorchin added. Attorney Dawn C.M. Jack terminated. (Govorchin, A.) (Entered: 05/06/2009)
154 STIPULATED PROTECTIVE ORDER Signed by District Judge Marianne O Battani. (BThe) (Entered: 05/07/2009)
155 ANSWER to 149 Amended Complaint, with Affirmative Defenses, Jury Demand and Certificate of Service by George Pramstaller, Jan Epp. (Govorchin, A.) Modified on 5/15/2009 (DWor). [CASE CAPTION IS INCOMPLETE] (Entered: 05/15/2009)
156 NOTICE of Appearance by Scott R. Rothermel on behalf of George Pramstaller, Jan Epp. (Rothermel, Scott) (Entered: 05/19/2009)
157 MOTION to Strike Defense Expert's Report by Steven Broder. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit EX 1 Dr. Norman report, # 3 Exhibit Ex 2 Dr. Barth's new report) (Reingold, Paul) (Entered: 05/20/2009)
158 NOTICE of hearing on 157 MOTION to Strike Defense Expert's Report. Motion Hearing set for 6/25/2009 03:00 PM before District Judge Marianne O Battani. (CMot) (Entered: 05/21/2009)
159 STIPULATION AND ORDER Amended Scheduling Order. Signed by District Judge Marianne O Battani. (BThe) (Entered: 05/29/2009)
160 RESPONSE to 157 MOTION to Strike Defense Expert's Report filed by Correctional Medical Services, Incorporated, Craig Hutchinson, Bency Mathai. (Richtarcik, Brian) (Entered: 06/08/2009)
161 REPLY to Response re 157 MOTION to Strike Defense Expert's Report filed by Steven Broder. (Attachments: # 1 Exhibit Ex A Norman Dep) (Reingold, Paul) (Entered: 06/16/2009)
Minute Entry −Motion Hearing held on 6/25/2009 re 157 MOTION to Strike Defense Expert's Report filed by Steven Broder before District Judge Marianne O Battani. (Court Reporter Allen Burnham) (CMot) (Entered: 06/25/2009)
162 ATTORNEY APPEARANCE: John F. Turck appearing on behalf of Steven Broder (Turck, John) (Entered: 06/26/2009)
163 ATTORNEY APPEARANCE: Thomas H. Blaske appearing on behalf of Steven Broder (Blaske, Thomas) (Entered: 06/26/2009)
164 ORDER denying 157 Motion to Strike Defense Expert's Report. Signed by District Judge Marianne O Battani. (CMot) (Entered: 06/26/2009)
165 ATTORNEY APPEARANCE: John F. Turck appearing on behalf of Steven Broder (Turck, John) (Entered: 06/29/2009)
166 ORDER WITH NOTICE AND CONSENT for Substsitution of Attorney Randall A. Juip for Correctional Medical Services, Incorporated, Aubertro Antonini, Craig Hutchinson and Bency Mathai added. Attorney Ronald W. Chapman terminated. Signed by District Judge Marianne O Battani. (BSoc) (Entered: 07/08/2009)
167 MOTION to Dismiss Plaintiff's Claim For Punitive Damages and Attorney Fees by Correctional Medical Services, Incorporated, Craig Hutchinson, Bency Mathai. (Juip, Randall) (Entered: 09/04/2009)
168 RESPONSE to 167 MOTION to Dismiss Plaintiff's Claim For Punitive Damages and Attorney Fees filed by Steven Broder. (Reingold, Paul) (Entered: 09/09/2009)
169 MOTION in Limine to Preclude Plaintiff from Calling Silas Norman, M.D. to Testify During His Case in Chief by Correctional Medical Services, Incorporated, Craig Hutchinson, Bency Mathai. (Attachments: # 1 Exhibit A − United State v. Cinergy Corp. case) (Juip, Randall) (Entered: 09/16/2009)

Case: 2:03-cv-75106-MOB-PJK As of: 10/19/2010 03:12 PM EDT 15 of 15

09/16/2009
10/27/2009 12/04/2009

170 MOTION in Limine Regarding Testimony of Plaintiff's Expert Witnesses by Correctional Medical Services, Incorporated, Craig Hutchinson, Bency Mathai. (Attachments: # 1 Exhibit A − Davis v. Oakland General Hospital case) (Juip, Randall) (Entered: 09/16/2009)
171 STIPULATED ORDER DISMISSING CASE With Prejudice and Without Costs. Signed by District Judge Marianne O Battani. (BThe) (Entered: 10/27/2009)
172 STIPULATED ORDER of Dismissal as to Correctional Medical Services, Inc., Bency Mathai, MD, and Craig Hutchinson, MD with prejudice, and closes this case in its entirety. Signed by District Judge Marianne O Battani. (BThe) (Entered: 12/04/2009)