Murray v. Ohio Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMAL MURRAY, : Case No. 1:14-cv-168

:

Plaintiff, : Judge Timothy S. Black

:

vs. : Magistrate Judge Karen L. Litkovitz

:

OHIO DEPARTMENT OF :

CORRECTIONS, et al., :

:

Defendants. :

DECISION AND ENTRY AFFIRMING AND ADOPTING

THE UNITED STATES MAGISTRATE JUDGE’S

ORDER AND REPORT AND RECOMMENDATION (Doc. 123)

This civil action is before the Court pursuant to the Order of General Reference to

United States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the

Magistrate Judge reviewed the pleadings and, on February 7, 2019, submitted an Order

and Report and Recommendation (the “R&R”) (Doc. 123). Defendant Dr. Heyd filed

objections to the R&R. (Doc. 128). Plaintiff Murray responded to those objections.

(Doc. 129). Dr. Heyd then filed a reply in support of the objections.1 (Doc. 130).

The Court addresses the objections filed after setting forth the background relevant

to the objections.

1 Murray moved to strike the reply on April 5, 2019. (Doc. 131). The Court has reviewed

Murray’s motion. And, while the Court agrees that replies are not contemplated by Fed. R. Civ.

P. 72, the Court will nonetheless consider all arguments the parties have submitted both for and

against the R&R. It is, of course, within the Court’s broad discretion to do so. As such,

Murray’s motion (Doc. 131) is DENIED. However, even when considering the reply, and as

discussed, infra, Dr. Heyd’s objections are not well-taken and overruled.

I. BACKGROUND2

Murray is a natural person residing in Hamilton County, Ohio. (Doc. 61 at ¶ 1;

Doc. 69 at ¶ 1). Murray has a diagnosed medication condition. (Doc. 123 at 7; Doc. 96-7

at ¶ 6). The diagnosed medical condition is deep vein thrombosis (“DVT”). (Doc. 123 at

7; Doc. 96-7 at ¶ 6). DVT is a medical disorder that involves blood clotting. (Doc. 123

at 7; Doc. 96-7 at ¶ 6).

Murray was a Lebanon Correctional Institution (“LeCI”) inmate between 2010 and

2014. (Doc. 61 at ¶ 1; Doc. 69 at ¶ 1). In 2011, Murray was hospitalized several times

for DVT. (Doc. 123 at 7). The hospitalizations occurred at the OSU and Atrium Medical

Centers. (Id.). In July 2011, the OSU hematology team issued a recommendation for

Murray’s medical treatment. (Id. at 7–8; Doc. 96-7 at ¶ 7; Doc. 110-1). The OSU

hematology team recommended that: (1) Murray be given anticoagulation therapy;

(2) Murray be given a “fair trial of Coumadin”;3 and (3) Murray maintain an INR

(international normalized ratio) level of 2.5–3.0. (Doc. 123 at 7–8, 14; Doc. 96-7 at ¶ 7;

Doc. 110-1).

Between August 2011 and February 2012, Murray received medical treatment

from LeCI’s medical team. (Doc. 123 at 8–10). However, during this time, Murray’s

2 The R&R contains a full recitation of the background facts, which the Court incorporates herein

by reference. (Doc. 123). This Decision and Entry only sets out the facts needed to understand

the objections.

3 Coumadin is an anticoagulation drug—i.e., a drug that helps reduce the risk of blood clots.

(Doc. 123 at 7 & n.3).

INR level never fell within the range recommended by the OSU hematology team.4 (Id.

at 8–10, 17; Doc. 96-4 at 10; Doc. 110-2 at 1; Doc. 110-3 at 1). In February 2012,

Murray suffered a cerebral blood clot. (Doc. 123 at 10). Thereafter, Murray

progressively lost his vision. (Id.). Murray is now legally blind. (Id.).

Murray commenced this civil action against several members of LeCI’s medical

team. (Doc. 61 at ¶¶ 2–8; Doc. 69 at ¶¶ 2–8). Murray brought suit against two of his

LeCI treating physicians: Defendants Timothy Heyd, M.D., and Oscar Cataldi, M.D.

(Doc. 61 at ¶¶ 2–3; Doc. 69 at ¶¶ 2–3). Murray also sued five other LeCI staff members:

Defendants Shellie Hodges-Begunich, Amy Weiss, Stanley Benner, Christopher Carnes,

and Mary Kokenge. (Doc. 61 at ¶¶ 4–8; Doc. 69 at ¶¶ 4–8).

Murray’s second amended complaint alleged that Defendants caused him

significant medical injuries by failing to provide him with adequate medical treatment

(for his DVT). (Doc. 61 at ¶¶ 12–82; see also Doc. 60 at 4). Murray’s second amended

complaint asserted two claims against Defendants (under § 1983): (1) a deliberate

indifference claim under the Eighth Amendment; and (2) an unlawful retaliation claim

under the First Amendment. (Doc. 61 at ¶¶ 83–105).

On August 24, 2018, Defendants collectively filed a motion for summary

judgment, arguing that all claims against all Defendants should be dismissed. (Doc. 96).

In connection with the motion for summary judgment, Defendants submitted declarations

4 “On August 16, 2011, [P]laintiff had an INR level of 2.3. (Doc. 96-4 at 10). On November 15,

2011, [P]laintiff’s INR level remained at 2.3. (Id.). On November 30, 2011, [P]laintiff’s INR

level dropped to 2.1. (Doc. 110-2 at 1). Finally, on December 22, 2011, [P]laintiff’s INR level

fell to 1.3 . . . . (Doc. 110-3 at 1).” (Doc. 123 at 17).

signed by Defendants Dr. Heyd and Dr. Cataldi. (Docs. 96-7, 96-8). Several paragraphs

of the doctors’ declarations contained expert testimony. (See Doc. 96-7 at ¶¶ 6 (last

sentence), 22, 23, 27, 28, 29, 41, 42; Doc. 96-8 ¶¶ 25, 26).5

On September 29, 2018, Murray filed a motion to strike those paragraphs of the

doctors’ declarations. (See Doc. 111). Murray contended that it was not proper for either

doctor to proffer expert testimony, because neither doctor had been disclosed as an expert

pursuant to Rule 26(a). (Id. at 1–2 (averring that “defense counsel [had] communicated

to Plaintiff’s counsel that they did not plan to name any expert witnesses”)).

On February 7, 2019, when the Magistrate Judge submitted the R&R, the

Magistrate Judge: (1) struck those paragraphs in Dr. Heyd’s and Dr. Cataldi’s

declarations which contained expert testimony, as cited, supra; (2) recommended that the

Court deny Defendants’ motion for summary judgment as to Murray’s Eighth

Amendment claim against Dr. Heyd; and (3) recommended that the Court grant

Defendants’ motion for summary judgment as to all of Murray’s other claims against all

other Defendants. (Doc. 123 at 32).

II. OBJECTIONS

Dr. Heyd raised three objections to the R&R. (Doc. 128). As discusses, infra, the

Court does not find any of Dr. Heyd’s objections persuasive and the Magistrate Judge’s

R&R will be affirmed and adopted in its entirety.

5 Defendants have not disputed that these paragraphs contain the type of testimony contemplated

by Fed. R. Evid. 702—i.e., testimony stemming from “scientific, technical, or other specialized

knowledge.” (See Doc. 115 at 2–3; Doc. 128 at 3–6; Doc. 130 at 9–10).

First, Dr. Heyd argues that the Magistrate Judge erred in striking those portions of

the declarations submitted by Dr. Heyd and Dr. Cataldi which contained expert

testimony. (Doc. 128 at 3–6). This objection is not well-taken. (Id.). The Magistrate

Judge properly concluded that it was not appropriate for Dr. Heyd and Dr. Cataldi to

proffer expert testimony when neither had been disclosed as an expert pursuant to Rule

26(a)(2)(A). (Doc. 123 at 3–4); see Fed. R. Civ. P. 26(a)(2)(A) (confirming that a “party

must disclose to the other parties the identity of any witness it may use at trial to present

[expert testimony]”); see also Fed. R. Civ. P. 37(c).

Dr. Heyd contends that he and Dr. Cataldi are exempt from Rule 26(a)(2)(A)’s

disclosure requirements, because he and Dr. Cataldi are “party defendants” (rather than

“expert witnesses”). (Doc. 128 at 5). But this contention is unpersuasive. “Rule

26(a)(2)(A) is clear that a party must disclose ‘any witness’ who will testify as an expert;

there is no exception for a [party] who will testify as an expert on his own behalf.”

Ziegler v. Wisconsin Cent., Ltd., No. 13-CV-996, 2015 WL 1898240, at *2 (E.D. Wis.

Apr. 27, 2015) (citing Fed. R. Civ. P. 26(a)(2)(A)) (emphasis in original); accord Bader

v. Roberts, No. 5:19-CV-297, 2020 WL 33746, at *3 (W.D. Okla. Jan. 2, 2020) (same).

Dr. Heyd also contends that he and Dr. Cataldi were not required to provide expert

reports, because he and Dr. Cataldi were not “retained” as experts. (Doc. 128 at 5). But

this is also beside the point. Rule 26(a)(2)(A) requires a party to disclose the identity of

“any witness” who will testify as an expert, regardless of whether the expert is retained or

not. See also McFerrin v. Allstate Prop. & Cas. Co., 29 F. Supp. 3d 924, 930 (E.D. Ky.

2014). Moreover, even though Dr. Heyd and Dr. Cataldi are “party defendants,” and

even assuming neither was “retained” as an expert witness, both were treating physicians

of Murray. (Doc. 96-7 at ¶ 5; Doc. 98-8 at ¶ 6). Treating physicians, regardless of

whether the treating physician was a party to the litigation or was not “retained,” are

often required to provide expert reports when the treating physician is, in essence

functioning as a retained expert. See Fielden v. CSX Transp., Inc., 482 F.3d 866, 872

(6th Cir. 2007) (“The biggest concern with permitting treating physicians to testify in all

circumstances without providing expert reports is that this would permit circumvention of

the policies underlying the expert report requirement.”) (collecting and discussing cases

on treating physicians as experts).

In the end, if Dr. Heyd and Dr. Cataldi wanted to proffer expert testimony in their

declarations, then Dr. Heyd and Dr. Cataldi should have been disclosed as experts under

Rule 26(a)(2)(A). See Fed. R. Civ. P. 37(c). As this never happened, it was neither

“clearly erroneous nor contrary to law” for the Magistrate Judge to strike those portions

of the declarations submitted by Dr. Heyd and Dr. Cataldi which contained expert

testimony. Fed. R. Civ. P. 72(a); see also Mohney v. USA Hockey, Inc., 138 F. App’x

804, 811 (6th Cir. 2005) (district court did not abuse its discretion when excluding

paragraphs of treating physician’s affidavit containing undisclosed expert opinion

generated after treatment of plaintiff); Harville v. Vanderbilt Univ., Inc., 95 F. App’x

719, 724–25 (6th Cir. 2003) (holding that a district court did not abuse its discretion

when excluding expert testimony not properly disclosed pursuant to Rule 26(a)).

Dr. Heyd’s first objection is overruled and the Magistrate Judge’s order striking

those paragraphs is affirmed.

Second, Dr. Heyd argues that the Magistrate Judge erred when “finding” that

Murray had “established” the subjective component of his Eighth Amendment deliberate

indifference claim against Dr. Heyd.6 (Doc. 128 at 6–13). Dr. Heyd’s objection is not

well-taken. On this Court’s review, the Magistrate Judge properly concluded that,

because Dr. Heyd had failed to maintain Murray’s INR levels within the range

recommended by OSU’s hematology team (2.5–3.0), there was a “genuine issue of

material fact as to whether Dr. Heyd [had acted with a] deliberate[] indifferen[ce] to

plaintiff’s blood clotting condition . . . .” (Doc. 123 at 16).

Dr. Heyd does not dispute that he was aware of the INR recommendations from

OSU’s hematology team. But nonetheless, Dr. Heyd raises several contentions in

opposition to the Magistrate Judge’s conclusion. (Doc. 128 at 7–13). Dr. Heyd argues

that he concluded (in his own judgment) that Murray’s INR levels should rest between

2.0 and 3.0. (Id. at 7). Dr. Heyd argues that he properly monitored Murray’s medical

condition by administering multiple tests and blood draws. (Id. at 8–11). And Dr. Heyd

argues that a “prison doctor’s failure to follow an outside specialist’s recommendation

does not necessarily establish inadequate care” (Id. at 7–8).

Dr. Heyd has already presented each of these contentions to the Magistrate Judge.

The Magistrate Judge nevertheless concluded in a detailed and reasoned analysis:

6 The Court would note that Dr. Heyd’s terminology is not correct. The Magistrate Judge did not

find that Murray had established the subjective component of his claim. (Doc. 128 at 6).

Instead, the Magistrate Judge concluded that a material fact dispute existed as to the subjective

component of Murray’s claim. (See Doc. 123 at 16–17).

“[a] prison doctor’s failure to follow an outside specialist’s

recommendation does not necessarily establish inadequate

care.” . . . [A]n inmate may not proceed past summary

judgment on an Eighth Amendment deliberate indifference

claim where prison doctors “prescribed an alternate treatment”

from that of an outside specialist and the inmate produced no

medical proof showing that the alternate treatment was

inadequate. . . . That is not the case here. Here, Plaintiff has

produced evidence creating a genuine dispute of fact as to

whether Dr. Heyd failed to order treatment consistent with

Plaintiff’s DVT and likewise failed to monitor his INR levels

and adjust his Coumadin accordingly to treat his condition.

(Doc. 123 at 18 (emphasis added)).

All things considered, the Magistrate Judge’s R&R is thorough, accurate, and

well-reasoned. And, while Dr. Heyd may disagree with the Magistrate Judge’s

conclusions, mere disagreement does not support an appropriate objection under Rule 72.

See, e.g., Bradley v. United States, No. 18-1444, 2018 WL 5084806, at *3 (6th Cir. Sept.

17, 2018) (quoting Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“A party’s

objections are not sufficiently specific if they merely restate the claims made in the initial

petition, ‘disput[e] the correctness’ of a report and recommendation without specifying

the findings purportedly in error, or simply ‘object[] to the report and recommendation

and refer[ ] to several of the issues in the case.’”).

Dr. Heyd’s second objection is overruled.

Third, Dr. Heyd argues in his final objection that the Magistrate Judge erred when

concluding that he is not entitled to qualified immunity. (Doc. 128 at 13–14). But, Dr.

Heyd’s final objection fails for the same reason as his second objection – it is not a

proper objection. Dr. Heyd merely restates several of the arguments raised in

Defendants’ previous filings and references the disputed facts argued in support of his

second objection. (Id.). The Magistrate Judge thoroughly and properly addressed Dr.

Heyd’s arguments in the R&R. (Doc. 123 at 25–27). This Court adopts the Magistrate

Judge’s well-reasoned analysis herein.

Dr. Heyd’s final objection is overruled.

III. CONCLUSION

As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(a)–(b), the Court has

reviewed the comprehensive findings of the Magistrate Judge and considered de novo all

of the filings in this matter. Upon consideration of the foregoing, the Court finds that the

R&R should be and is hereby affirmed and adopted in its entirety.

Accordingly:

1. The Order and Report and Recommendation (Doc. 123) is AFFIRMED

and ADOPTED in its entirety;

2. Defendant Dr. Heyd’s objections (Docs. 128, 130) are OVERRULED;

3. Plaintiff’s motion to strike (Doc. 11) evidence filed in support of

Defendants’ motion for summary judgment is GRANTED in part and

DENIED in part as set forth in the R&R (Doc. 123);

4. Plaintiff’s motion to strike the reply in support (Doc. 131) is DENIED; and

5. Defendants’ motion for summary judgment (Doc. 96) is DENIED as to

Plaintiff’s Eighth Amendment claim against Dr. Heyd and stands as the

only remaining claim.

6. Defendants’ motion for summary judgment (Doc. 96) is GRANTED as to

Plaintiff’s Eighth Amendment claim against all other Defendants and is

GRANTED as to Plaintiff’s First Amendment retaliation claim against

Defendants Dr. Heyd and Amy Weiss.

IT IS SO ORDERED.

Date: 3/31/2021 s/Timothy S. Black

Timothy S. Black

United States District Judge