2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-8-2009

John Doe v. NJ Dept Corr

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3189

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Recommended Citation

"John Doe v. NJ Dept Corr" (2009). 2009 Decisions. Paper 1049.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3189

 

JOHN DOE,

Appellant

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS;

MR. THOMAS FARRELL, Director of Medical Services

for the New jersey Department of Corrections;

CORRECTIONAL MEDICAL SERVICES;

DR. GEORGE ACHEBE, Medical Supervisor (CMS);

DR. RAYMUNDO TAGLE (CMS);

ST. FRANCIS MEDICAL CENTER; SUSAN FARBER,

Records Administrator, Saint Francis Medical Center;

ULTRASOUND SERVICES, INC.;

RICHARD PURSE, Ultra Sound Services, Inc.

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 03-cv-02112)

District Judge: Honorable Anne E. Thompson

 

Submitted Under Third Circuit LAR 34.1(a)

July 7, 2009

Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges

(Opinion filed July 08, 2009)
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OPINION

 

AMBRO, Circuit Judge 

In May 2003, John Doe, an inmate at New Jersey State Prison (“NJSP”), brought

suit against, inter alia, Correctional Medical Services (“CMS”), a private company

contracted by the New Jersey Department of Corrections (“NJDOC”) to supply medical

care to prison facilities. Doe also named two of CMS’s independent contractor

physicians, Dr. George Achebe and Dr. Raymundo Tagle, in the suit. Dr. Achebe was the

medical director of NJSP, and Dr. Tagle was Doe’s primary care physician and the

associate medical director of NJSP. Thomas Farrell, the supervisor of the NJDOC’s

health services unit, was also named.

Doe brought several state and federal claims arising out of his treatment for the

Hepatitis C Virus (“HCV”). These claims included: (1) denial of medical care in

violation of the Eighth Amendment, and arbitrary discrimination and denial of equal

protection in violation of the Fourteenth Amendment, as against defendants Farrell and

the NJDOC; (2) deliberate indifference to serious medical needs in violation of the Eighth

Amendment, violation of, among other things, the Fourteenth Amendment right to due

process, and breach of professional duty and contractual obligation to provide medical

care, as against defendants CMS and Drs. Achebe and Tagle; and (3) withholding of

critical medical information and records and delay of HCV treatment, and breach of duty
 HCV is a liver disease with a very long latency period, normally taking 30 to 40 years 1

to reach its end-stage. The disease is primarily asymptomatic when individuals are first

infected, resulting in 60-85% of those infected developing chronic infection. In 2002, the

drug therapy success rate for Doe’s form of HCV was approximately 40% after 48 weeks

of therapy. Because of the high failure rate, treatment stops after 12 weeks if the patient

does not begin to respond favorably. Whether a patient should receive HCV treatment

depends on the magnitude of viral load reflected in a blood test. See THE NATIONAL

INSTITUTES OF HEALTH CONSENSUS DEVELOPMENT PROGRAM: MANAGEMENT OF

HEPATITIS C (2002), U.S. Department of Health & Human Services, http://consensus.

nih.gov/2002Hepatitisc2002116html.htm.

3

under the New Jersey Patients Bill of Rights, as against defendants Susan Farber, Richard

Purse, Ultrasound Systems, Inc., and St. Francis Medical Center. The District Court

dismissed all claims except for Doe’s constitutional claim under § 1983 for deliberate

indifference. This claim proceeded to trial, which resulted in a jury verdict for the

defendants. The District Court denied Doe’s subsequent motion for a new trial. Doe now

appeals, challenging several adverse evidentiary and jury-instruction rulings and the

dismissal of his state-law claims. For the following reasons, we affirm the denial of

Doe’s motion for a new trial and pretrial rulings, but remand the case to the District Court

for clarification on its dismissal of Doe’s state medical negligence claim.

I.

Because we write solely for the parties, we state only the facts relevant to our

analysis. Doe entered NJSP in 1999. On his arrival, he informed officials that he

previously had tested positive for HCV and asked about testing and treatment. A blood 1

test showed Doe was positive for HCV and warranted treatment, but the results were not
 The Federal Bureau of Prisons’ dosage chart recommends a dose of 1200 mg. The 2

specialist who treated Doe (but did not have final authority on dosage) testified that he

would have prescribed 1200 mg, while defendants’ expert testified that 800 mg was an

acceptable dosage.

4

reported to Doe or entered on his medical chart. A notation was later made on Doe’s

chart by Dr. Tagle that HCV was “not detected” in Doe’s blood. A second notation was

made by Dr. Achebe that Doe had declined treatment and was prescribed follow-up in the

chronic care clinic, even though Doe had not completed a refusal form. After Dr. Achebe

entered his notation, all of Doe’s treatment, including chronic care measures, terminated.

After reading various articles about the failure of CMS and the NJDOC to test and

treat prisoners for HCV, Doe asked an attorney to help him obtain his medical records. 

When Doe eventually gained access to his records, showing the undisclosed blood test

results and erroneous “not detected” notation, he wrote to Farrell, who referred the matter

to CMS without reviewing Doe’s charts or referring him to a new physician. CMS,

through Dr. Achebe, then sent Doe to a specialist who confirmed that Doe qualified for

treatment. Treatment then began, three and a half years after Doe first advised officials of

his HCV-positive status. Dr. Tagle prescribed Doe the FDA-approved dose (800 mg) of

the drug ribovirin. After 12 weeks of receiving medication, Doe’s treatment was 2

terminated because his viral load had not been significantly reduced.

Doe subsequently filed a pro se complaint in the District Court, alleging the claims

noted above. The District Court reviewed the complaint pursuant to 28 U.S.C. §§ 1915
5

and 1915A, which requires a court to dismiss sua sponte any complaint that fails to state a

claim on which relief may be granted when a prisoner brings a civil action in forma

pauperis. The Court ruled Doe’s Eighth Amendment claims against CMS, Drs. Achebe

and Tagle, and Farrell were viable and could proceed to trial. (The Court also allowed the

state-law claim against defendants Farber, Purse, Ultrasound Systems, Inc., and St.

Francis Medical Center to proceed, though it was voluntarily withdrawn by Doe prior to

trial.) In its ruling, the District Court made no mention of Doe’s state-law medical

negligence claim.

The District Court made several evidentiary rulings adverse to Doe during two

pretrial hearings and at trial. Shortly before the trial, the Court informed the parties that

only the federal denial of medical treatment claim could go to trial. Doe responded with a

motion for reconsideration to reinstate his state-law negligence claim against CMS and

Drs. Achebe and Tagle. The District Court’s order denying the motion stated this claim

had been dismissed earlier in the case, at the § 1915 stage, and that the Court had taken

into consideration all of Doe’s arguments prior to its ruling that only the Eighth

Amendment claim could proceed.

Doe represented himself at trial, which lasted seven days. Following a jury-charge

conference, the Court chose not to include several of Doe’s requested charges. The jury

found in favor of the defendants. Doe brought a motion for a new trial that was denied by
 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction 3

under § 1291.

6

the Court, and he now appeals.3

II.

We apply an abuse-of-discretion standard when reviewing a District Court’s ruling

on admission or exclusion of evidence, see Gordon v. Lewistown Hosp., 423 F.3d 184,

215 n.21 (3d Cir. 2005) (citing Affiliated Manufacturers, Inc. v. Aluminum Co. of Am., 56

F.3d 521, 525–26 (3d Cir. 1995)), and expert testimony, see Calhoun v. Yamaha Motor

Corp., U.S.A., 350 F.3d 316, 320 (3d Cir. 2003) (citing Gen. Elec. Co. v. Joiner, 522 U.S.

136, 138–39 (1997)), as well as to its decision regarding jury instructions. See United

States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006) (citing United States v. Coyle, 63 F.3d

1239, 1245 (3d Cir. 1995)). Dismissal of state-law claims is subject to de novo review. 

See Natale v. Camden County Correctional Facility, 318 F.3d 575, 579 (3d Cir. 2003)

(citing Island Insteel Sys. Inc. v. Waters, 296 F.3d 200, 206 (3d Cir. 2002)).

III.

Doe challenges (1) the exclusion of evidence pertaining to CMS policy, (2) the

jury charge, (3) the District Court’s failure to investigate attorney misconduct, (4) a

limitation on the testimony of his expert, and (5) the refusal to permit his state

malpractice claims to go to trial.

A.
7

Doe attempted to present evidence at trial that CMS and the NJDOC had a de facto

policy of not treating prisoners for HCV. To bring a claim against Dr. Achebe, Dr. Tagle,

or Farrell’s employers, CMS and NJDOC, Doe was required to show both that the

employees violated his constitutional rights, and that they did so acting pursuant to a de

facto policy of their employers. See Natale v. Camden County Corr. Facility, 318 F.3d

575, 585 (3d Cir. 2003). A court has “wide discretion to admit or exclude evidence under

the provisions of the Federal Rules of Evidence.” Gumbs v. Int’l Harvester, Inc., 718

F.2d 88, 97 (3d Cir. 1983). 

The District Court excluded the testimony of Gary Campbell, a former CMS

employee and regional medical director whom Doe alleged developed a policy in 1999

that discouraged CMS physicians from testing prisoners for HCV until they had moderate

to severe liver disease. The Court concluded that the testimony was irrelevant, as

Campbell had worked in CMS’s regional office in St. Louis and the policy he allegedly

put in place was not for the State of New Jersey. The Court also found that this policy

could not have caused Doe’s delayed treatment because, at the time the policy memo was

issued, Doe was already aware of his HCV-positive status.

The District Court also excluded several documents Doe attempted to enter into

evidence. The first, a report published by the New Jersey Office of Legislative Services,

showed that CMS submitted a bid to NJDOC in 2002 that omitted testing and treatment

for HCV. Doe sought to present the report to show that CMS did not want to pay to test
8

and treat HCV. However, the Court found that evidence of cost saving would not show

an aversion to testing for or treating HCV, as an interest in “economic gain” is a

“universal motive” at a for-profit company such as CMS.

The second document excluded, an HCV Identification Audit issued by Farrell,

showed CMS failed to notify over 440 prisoners of their HCV positive test results. Doe

attempted to present this as evidence of a systematic practice by CMS physicians to

withhold test results from prisoners, but the Court excluded the document because it

found an audit regarding testing for HCV was irrelevant to Doe’s claim since he “self

reported” his condition.

The third excluded document, a Bureau of Justice Statistics Report, contained a

survey showing that nearly 50% of prisoners tested in New Jersey between July 1999 and

June 2000 were positive for HCV. Doe wanted to present this to establish a custom or

policy of Farrell—who Doe alleged was a “policymaker”—and the NJDOC regarding

HCV. But this report was excluded because the District Court determined its results were

not readily capable of accurate and ready determination. See Fed. R. Evid. 201(b)

(permitting a court to take judicial notice of facts “not subject to reasonable dispute” that

are “capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned”).

We believe that, given the wide discretion granted to a court to exclude evidence

or testimony, the District Court did not err in its exclusionary rulings. Even had it erred

in excluding Campbell’s testimony or the reports, those errors were harmless because the
 Doe requested that the Court’s charge include his negative theory of liability as to 4

CMS (e.g., that a policy or custom could be shown where a “policy or practice was

nominally in place, but was deliberately ignored”), an instruction on actual knowledge

and duty to protect on the part of Farrell, and an instruction on gross negligence or a

pattern of neglect on the part of Drs. Tagle and Achebe.

9

jury determined that Doe received a constitutionally acceptable level of care. In order to

find CMS or NJDOC liable, Doe was required to show both (i) a de facto policy of the

employer and (ii) injury caused by the employees acting pursuant to the policy. See

Natale, 318 F.3d at 585. As Doe established no injury under the Eighth Amendment, the

exclusion of evidence he proffered to show a CMS or NJDOC policy was not an abuse of

discretion.

B.

Doe next challenges several of the District Court’s jury charges, specifically the

failure to define de facto policy and custom or practice, and the refusal to instruct on

several of his legal theories. A district court has considerable discretion in the wording 4

of jury instructions and “need not give [a] proposed instruction if essential points are

covered by those that are given.” Grazier ex rel. White v. City of Philadelphia, 328 F.3d

120, 127 (3d Cir. 2003) (quoting Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995)). 

A trial court “does not abuse its discretion by refusing to emphasize legal inferences

favoring one side. Emphasizing arguable inferences to jurors is the job of advocates, not

courts.” Id. (citing Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir. 2000)).

The District Court’s explanation of the law on de facto policy and custom or
10

practice in the jury charge covered the essential points and made clear that, as Doe

argued, those elements could be shown indirectly through CMS’s employees. The

Court’s instructions fairly and adequately covered the issues presented and allowed Doe

to argue his theory of the case to the jury. Thus, its refusal to include specific language or

instruct on particular legal arguments requested by Doe was not an abuse of discretion.

C.

Doe also challenges the failure of the District Court to conduct a hearing in

relation to the testimony of his witness, Elizabeth Fletcher. Doe alleges Fletcher made

inconsistent statements at trial as the result of communication with a defense attorney

prior to trial. This was not disclosed to Doe, and thus he alleges it violated defendants’

obligation to provide discovery under Federal Rule of Civil Procedure 26. At trial, the

Court stated that the inconsistent statement alone did not imply improper communication,

and Doe never objected, moved to strike, or requested a hearing with regard to the

testimony or communication. Because Fletcher was a non-party witness, defense counsel

was entitled to speak to her about her anticipated testimony, see Greiner v. Wells, 417

F.3d 305, 322 (2d Cir. 2005), and the District Court committed no error in not sua sponte

holding a hearing on her testimony.

D.

The District Court limited the testimony from Doe’s expert witness, Dr. Esteban

Mezey. It prevented Doe from questioning Dr. Mezey about what dose of HCV

medication he would have prescribed for Doe (something not addressed in Dr. Mezey’s
11

expert report). This, Doe argues, unfairly prejudiced his case. The problem is that the

Court’s decision to restrict Dr. Mezey’s testimony to opinions in his report—to prevent

unfair surprise to defendants—accorded with Federal Rules of Civil Procedure

26(a)(2)(B)(I) and 37(c)(1); thus it was not an abuse of discretion.

E.

Finally, Doe challenges the District Court’s dismissal of his state malpractice

claims against CMS, Dr. Tagle, and Dr. Achebe, claiming that he carefully pleaded a

cause of action under New Jersey medical malpractice law. The Court implicitly

dismissed this claim at the § 1915 hearing when it did not state the claim was viable and

could proceed. However, it also did not state that the claim was dismissed, and provided

no substantive analysis as to why it lacked merit. If it determined that Doe was bringing a

medical negligence claim under § 1983 and thus dismissed the claim as frivolous, we

would affirm, as “[i]t is well-settled that claims of negligence or medical malpractice,

without some more culpable state of mind, do not constitute ‘deliberate indifference[ ]’”

for purposes of an Eighth Amendment claim entitled to remedy under § 1983. Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

If, however, the Court construed Doe’s cause of action as a state-law claim, it

should not have been dismissed as frivolous. Doe complied with New Jersey state law by

submitting an Affidavit of Merit from Dr. Mezey, as “the underlying factual allegations

of the claim require[d] proof of a deviation from the professional standard of care for that

specific profession.” See Couri v. Gardner, 801 A.2d 1134, 1141 (N.J. 2002) (discussing
 To prevail on a claim under the Eighth Amendment, a plaintiff must show that 5

defendants were deliberately indifferent to a serious medical need. Farmer v. Brennan,

511 U.S. 825, 842 (1994); Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). Under New

Jersey Law, to establish a prima facie case of negligence in a medical malpractice action

alleging deviation from the standard of care, “a plaintiff must present expert testimony

establishing (1) the applicable standard of care; (2) a deviation from that standard of care;

and (3) that the deviation proximately caused the injury.” Teilhaber v. Greene, 727 A.2d

518, 524 (N.J. Super. Ct. App. Div. 1998) (citations omitted).

 “[New Jersey] medical malpractice actions are governed by a two-year statute of 6

limitations . . . . N.J. STAT. ANN. § 2A:14-2. The filing of a federal complaint tolls the

running of the statute of limitations on any state law claims asserted in the federal

complaint. 28 U.S.C.A. § 1367(d). When a federal court dismisses the state-law claims

without prejudice, the tolling continues for an additional period of thirty days. Ibid.” 

Fearon v. Correctional Medical Services, Inc., 2009 WL 395473, at *2 (N.J. Super. Ct.

App. Div. Feb. 19, 2009).

12

N.J. STAT. ANN. 2A:53A-27). Doe’s state-law negligence claim required a lower standard

of proof than his federal claim, and arose from the same set of facts and against the same 5

defendants as Doe’s alleged denial of adequate medical treatment claims violating the

Eighth Amendment, which the Court permitted to proceed to trial.

We thus remand the state-law claim for clarification from the District Court. 

Should it determine that it dismissed Doe’s properly pleaded state medical malpractice

claim against CMS, Dr. Tagle, or Dr. Achebe, we recommend dismissing that claim

without prejudice so that Doe may proceed on it in a state forum.6

* * * * *

For these reasons, we affirm the District Court’s pretrial rulings and its denial of

Doe’s motion for a new trial, but remand the case for clarification on the dismissal of the

state-law malpractice claim.