The opinion of the court was delivered by: Nanette K. Laughrey United States District Judge
While she was incarcerated with the Women's Eastern Reception Diagnostic and Correctional Center ("WERDCC"), Plaintiff Leiloni Popoalii ("Popoalii") went blind as the result of cryptococcal meningitis. She brings this civil suit against her jailers and the medical personal who treated her in prison under 42 U.S.C. § 1983 for violation of her Eighth Amendment right against cruel and unusual punishment. Defendants Rebecca Patterson, Bruce Sharp, Mark Trusty, Renee Samm, Mary Ann White, Stephen Taylor, Christina Hancock, Linda Rose, Thomas Dunn, James Wilder, Scott Neagles, Tom Schmidt, William Vallier, Alan Ham, George Foster, Lisa Schoneboom, Colin Nichols and Karen Morris (collectively, the "MDOC Defendants") move for summary judgment in Document No. 228. Defendants Correctional Medical Services, Inc. ("CMS"), Earl Cox, Sripatt Kulkanthorn, Marilyn Meyer, Wendy Hull, Debbie Welch, Teresa Vanlandingham, and Vicki Dixon (collectively, the "CMS Defendants") move for summary judgment in Document No. 229. Defendant Raymond Bloomquist ("Bloomquist") moves for summary judgment in Document No. 227. For the reasons set forth below, the motions are granted.
As a threshold matter, Defendants have moved [Docs. # 239 and 243] to strike the Affidavit of Popoalii's medical expert Jerrold S. Dreyer, M.D., attached to her Suggestions in Opposition to their Motions for Summary Judgment. The Court's October 20, 2005 Scheduling Order required Popoalii to designate experts by July 3, 2006. Popoalii designated Dr. Jerrold S. Dreyer in timely fashion and produced his three paragraph report to Defendants, who subsequently took Dr. Dreyer's deposition at his office in California on July 31, 2006. During that deposition, Dr. Dreyer was asked whether his three paragraph report completely and accurately summarized his opinions. He answered in the affirmative and stated that he had produced no further reports.
The affidavit of Dr. Dreyer attached to Popoalii's Suggestions in Opposition to the Defendants' Motions for Summary Judgments contains the following additional opinion testimony not included in his original report and not mentioned by him during his deposition:
c. The defendants' failure to immediately obtain and review Plaintiff's medical records hampered their ability to adequately assess and treat Plaintiff's condition in that defendants -- specifically the treating nurses and physicians at the correctional facility -- could not know which of Plaintiff's body systems to test and monitor, and that they therefore did not know how to properly treat Plaintiff. In particular, the defendants failed to test and monitor Plaintiff's intracranial pressure prior to April 8, 2004, and that appropriate testing/monitoring thereof could have likely prevented Plaintiff's blindness.
B. Had the defendants obtained and reviewed Plaintiff's medical records, it is more likely than not that the defendants would have been able to plan a course of appropriate treatment such that Plaintiff could have avoided blindness as a complication of her condition. In particular, Plaintiff's spinal tap during her stay at St. Joseph's hospital prior to her admission to the correctional facility revealed an abnormal condition which should have been closely monitored.
These additional opinions were not disclosed to Defendants in accordance with the Court's Scheduling Order or Fed. R. Civ. P. 26(a)(2)(B), nor do they state which documents within the record they are based on. Defendants, therefore, have not had the benefit of deposing Dr. Dreyer on his additional opinions.
Popoalii counters by asserting that the affidavit does not contain anything new. If that is the case, then there is no prejudice to her if the affidavit is stricken. Given the lack of opportunity for Defendants to depose Dr. Dreyer on his new opinions and the lack of prejudice to Popoalii, the Court grants the Motions to Strike Dr. Dreyer's affidavit.
The following facts are viewed in a light most favorable to Popoalii as the non-moving party, and all reasonable inferences are drawn in her favor. From April 2003 to March 19, 2004, Popoalii was incarcerated with the St. Charles County Department of Corrections. She began complaining of headaches in February 2004, for which she was eventually hospitalized at St. Joseph's Health Center and diagnosed with viral encephalitis. On March 19, 2004, Popoalii was transferred from St. Charles to the Women's Eastern Reception and Diagnostic Correctional Center ("WERDCC") in Vandalia, Missouri.
A. Popoalii's Treatment by WERDCC Correctional Staff
Upon arrival at WERDCC, Popoalii was processed through the Receiving and Orientation Unit where she gave her medical history and underwent a brief evaluation by medical personnel. DOC custody and classification officers play no role in this evaluation or in gathering medical records. Because medical information is private, it is not generally disclosed to custody and correctional staff.
Medical staff generally make rounds through the Receiving and Orientation unit once per day, and there is a procedure through which prisoners can submit a Medical Services Request form and be seen by medical staff during sick call, which occurs once per day. Because Popoalii continued to complain of headaches, DOC Defendant Scott Neagles instructed her to go to sick call and ask for medication.
During an educational screening with special education teacher DOC Defendant Patterson, Popoalii said that her head hurt so bad she could not answer another question and just wanted to lie down. Patterson told her she did not have permission for a lay-in, and Popoalii said, "just take me to the hole," or administrative segregation. Patterson called a nurse in the medical unit to ask if she should proceed with testing Popoalii anyway and was told that she could. Patterson also called DOC Defendant Samm, who came to talk to Popoalii about her complaint. Popoalii told Samm that her head hurt and she just wanted to lie down. Samm called Receiving and Orientation Unit to inform them of Popoalii's complaint and was told that she had just been to the medical unit and had not received a lay-in. Popoalii continued to complain of head pain and maintained that she could not continue the test and that they should just take her to the hole. Samm wrote Popoalii up on a conduct violation. Popoalii was interviewed by DOC Defendant Sharp a few days later about the conduct violation, but she did not offer any statement about the incident or specifically request medical attention at that time.
Popoalii was placed in administrative segregation on March 22 by order of Shift Supervisor DOC Defendant Trusty, though Trusty himself did not speak with or see Popoalii at the time since Sharp had already interviewed her about the conduct violation. Prior to being placed in segregation, Popoalii had been seen by medical staff twice since her arrival at WERDCC. Medical staff generally make rounds through segregation once per day. Correctional officers walk through the segregation unit constantly, and each cell has a call button which alerts an officer overseeing the unit that the prisoner needs medical help. On March 24, Popoalii screamed from severe back pain. DOC Defendant Hancock called the medical unit and spoke to an unidentified nurse practitioner who told Hancock that there was nothing wrong with Popoalii. During a head count on March 31, Hancock ordered Popoalii to sit up several times for the count, but Popoalii said she couldn't because her head hurt too much. She had also begun to hallucinate. She eventually complied, but was issued a conduct violation for the delay. Popoalii was interviewed by DOC Defendant Taylor for the conduct violation but made no statement during the interview. Neither Popoalii nor Taylor recall whether Popoalii asked for medical attention during the interview. DOC Defendant White also conducted a disciplinary action hearing on March 31. She did not actually observe Popoalii at the time but asked her over the intercom whether Popoalii wanted to participate, and Popoalii said no.
On April 1, medical staff decided to transfer Popoalii from administrative segregation to the transitional care unit (TCU) located in the medical unit. At that time, Popoalii first reported that she could not see and that her head continued to hurt. Although custody officers were present in the TCU for safety and security reasons, they are not allowed to provide medical care to inmates. Nor are they even told why the inmates are in the TCU. Over the next few days, Popoalii had several episodes of loud screaming. Each time, she was told to stop by DOC Defendants Rose, Dunn, and Wilder because she was disturbing other patients. Popoalii also spilled her food and was told that if she did not clean up her mess and stop screaming, she would be returned to segregation. During this time, she was issued several conduct violations by the Officers. When one of these violation was read to her by DOC Defendant Nichols, Popoalii stated, "God my head hurts. I can't see very well. I haven't been able to see for the last two days. I want to sign it but I can't see." When DOC Defendant Neagles interviewed her about another violation, Popoalii told him she could not see well enough to sign it. She was sent back to administrative segregation on April 3 for the conduct violations by DOC Defendant Supervisor Vallier, though Vallier never saw Popoalii before issuing the transfer order. Popoalii was cleared for transfer by one of the nurses in the TCU.
On April 4, DOC Defendant Neagles observed Popoalii hitting her head on the wall of her cell, stumbling around, and falling over her bed. Neagles notified his supervisor and the mental health unit by filling out a suicide intervention form. He also called the medical unit to report the head banging. Popoalii was moved to a padded cell in the mental health unit and placed on full suicide watch. DOC Defendant Ham was listed as the shift supervisor on the suicide intervention form Neagles filled out, but non-party DOC officer Ruby Tyler was actually on duty at that time and Ham had no involvement.
Popoalii was transferred from the padded cell back to the TCU on April 6. She was subsequently taken to the emergency room at the Audrain Medical Center in Mexico, Missouri. At the hospital, Popoalii was diagnosed for the first time with cryptococcal meningitis and eventually transferred to the University of Missouri Health Center. Her experts admit that she most likely had cryptococcal meningitis even before coming to WERDCC.
While Popoalii was at the hospital, DOC Defendant Schoneboom participated in two disciplinary action hearings involving her on April 8. However, Schoneboom had no other contact with Popoalii. Neither did Popoalii have any contact with DOC Defendants Morris or Foster. There is no evidence that Popoalii ever spoke with DOC Defendant Ham and she doesn't know why Ham was named as a Defendant.
B. Popoalii's Medical Care at WERDCC
During her intake evaluation upon arrival at WERDCC, Popoalii reported her medical history to Correctional Medical Services ("CMS") Defendant Nurse Earl Cox, including her recent hospitalization for viral encephalitis. She reported to another, unidentified nurse that she had bad headaches and that she could not see. She signed a form acknowledging her understanding of how to access medical and emergency care while at WERDCC. Cox saw Popoalii a short while later when she complained of head pain. She told Cox that she had a constant headache due to the encephalitis. Cox evaluated her vital signs, which were normal, and provided her with a "lay-in" restriction, which would allow her to remain in her bed, except to receive medical care or meals, rather than engaging in certain prison activities. He also directed her to report to the nursing sick call for further evaluation. Popoalii talked to an unidentified nurse who gave her ibuprofen for her headache. She continued to receive headache medicine in a timely fashion during her stay at WERDCC. Nurse Cox had no further contact with or role in Popoalii's medical care during the time at issue in this case.
CMS Defendant Nurse Marilyn Meyer saw Popoalii on March 20 for severe headache. Meyer assessed all of Popoalii's vital signs within normal limits. She assessed both of Popoalii's pupils as equal and reactive to the light, and found Popoalii to be alert, oriented, and balanced and able to speak and grip. Meyer noted that Popoalii was uncomfortable and told her to report to nursing sick call for further care.
Meyer's next contact with Popoalii occurred on March 26 in response to a Medical Service Request seeking an increased dosage of ibuprofen. Meyer received approval to increase the dosage from the on call physician, Defendant Raymond Bloomquist. Meyer had no further contact and provided no further treatment to Popoalii during the time at issue in this suit.
CMS Defendant Nurse Practitioner Wendy Hull worked primarily in the emergency room at WERDCC during all relevant times. She saw Popoalii on March 21 for severe headache. Popoalii told her she had been previously hospitalized for viral meningitis which was causing her headache. Hull assessed Popoalii's vital signs as within normal limits and provided her with a 24-hour lay-in.
Hull saw her again on April 1 when she was admitted to the Transitional Care Unit for evaluation and observation. Over the next two days, Popoalii received two conduct violations from corrections officers for screaming in the infirmary and disturbing other inmates, and she was transferred back to administrative segregation on April 3. Because an inmate cannot be transferred to segregation without a prior medical evaluation, Hull evaluated Popoalii again on April 3. Popoalii complained of headache for which Hull gave her as much ibuprofen as prescribed. Because her vital signs were normal, Hull deemed Popoalii medically fit for transfer to segregation.
Following the report on April 4 that Popoalii was banging her head against the wall in segregation and had been moved to a padded cell, Hull again evaluated her. Popoalii told Hull that she could not see. Hull performed eye reflex tests and checked whether her eyes were equal and reactive to light. She also tested neurological function and vital signs. She remained with Popoalii for an hour to observe her, during which time Popoalii did not change or worsen. Hull did not see Popoalii again during times relevant to this litigation.
CMS Defendant and Practical Nurse Debbie Welch saw Popoalii for complaints of a headache on the morning of March 22. Popoalii mistakenly told her she had been recently discharged from the hospital with viral meningitis (as opposed to encephalitis). Welch took her vitals, checked that her pupils were equal and reactive to light, checked that her smile was equal on both sides, and that she could grip, push, and pull. Welch assessed an "alteration in comfort," meaning that Popoalii was uncomfortable and contacted CMS Defendant Dr. Sripatt Kulkanthorn to request a course of medical treatment. Kulkanthorn prescribed 800mg ibuprofen three times daily for ten days, which Welch administered.
Welch met with Popoalii again on April 1 to inform her of the results of a TB test. There is no evidence that Popoalii complained of headache or other symptoms during this meeting. Welch had no further contact with Popoalii at times relevant to this law suit.
Also on March 22, Popoalii was evaluated by non-party Nurse Carrie Oliver for a complaint of a severe headache. Popoalii reported to Oliver a recent history of viral meningitis (as opposed to encephalitis), and Oliver had her sign a release to obtain prior medical records. Oliver also called Defendant Dr. Raymond Bloomquist to come evaluate Popoalii in administrative segregation. Bloomquist is an independent contractor for Medical Doctor Associates, Inc ("MDA"). Through MDA's contracting arrangement with CMS, he provides care as a locum tenens doctor for CMS who in turn contracts with the Department of Corrections to provide medical care to prisoners. The only period relevant to this lawsuit in which Bloomquist worked at WERDCC was from March 19 through March 26. He has no independent recollection of treating Popoalii during that time and relies exclusively on her treatment notes for his testimony.
When he was called by Nurse Oliver, Bloomquist evaluated her neck and found it flexible with no nuchal rigidity. She was responsive, coherent, and her vital signs were stable. He ordered ibuprofen for her pain. He does not recall being aware of her reported history of encephalitis or meningitis, or that she was sensitive to light. Had he known of this history, it would not have affected his treatment absent some objective symptom of those ailments. Had he known of the light sensitivity in conjunction with a history of encephalitis, it would have been a "red flag" to him.
Bloomquist's only other involvement in Popoalii's care was on March 26 when Nurse Meyer called him about increasing Popoalii's dose of ibuprofen due to pain. He increased the dosage.
CMS Defendant Kulkanthorn is a physician employed by CMS as an independent contractor. His first involvement in Popoalii's case occurred on March 22 when Nurse Welch consulted him about Popoalii's headaches and he prescribed ibuprofen. He next saw Popoalii on April 1 for a scheduled appointment in regard to her headaches. Popoalii reported head pain and said she had not been able to see for a couple of days. She reported a history of headaches and a recent diagnosis with viral encephalitis. Kulkanthorn examined Popoalii's head and neck. He examined her eyes and pupils with an opthalmascope and determined that her pupils were equal, reactive to light, and grounded. A neurological exam was also normal. He placed her in the TCU for observation and further evaluation of her headaches in light of her history of encephalitis. He encouraged more fluid intake and ordered a blood count. He prescribed ibuprofen and a shot of Visteril for the headache. He ordered her to lie flat and be ...