Brown v. Lane County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

ANTHONY BROWN, Case No. 6:21-cv-01866-AA

OPINION AND ORDER

Plaintiff,

vs.

LANE COUNTY; DR. ALFREDO VELEZ;

NATHAN L. GENT; WELLPATH, LLC;

JOHN/JANE DOES 1-5,

Defendants.

AIKEN, District Judge:

Plaintiff Anthony Brown proceeds in forma pauperis (“IFP”) in this civil rights

action against defendant Dr. Alfredo Velez. Before the Court is defendant’s motion

for summary Judgment (“Mot.”), ECF No. 40, and plaintiff’s motion to amend or

correct his answers to defendant’s requests for admissions (“RFA Mot.”), ECF No. 42.

For the reasons explained below, defendant’s motion for summary judgment, ECF

No. 40, is GRANTED. Plaintiff’s RFA motion, ECF No. 42, is DENIED.

BACKGROUND

Plaintiff was incarcerated at Lane County Adult Correctional Facility for an

Assault 4, strangulation charge in October 2019. SAC ¶ 9. There, he received mental

health treatment from providers including defendant Dr. Velez, a Wellpath employee.

Plaintiff’s medical records describe a history of anxiety, depression, attention deficit

hyperactivity, and panic disorders, including an occasion where a “panic attack . . .

turned into a seizure.” Taylor Decl. Ex. 1 at 0044-45; 48-49.1 Plaintiff stopped taking

his prescribed mental health medications and told his health providers that he had

been smoking meth daily. Id. In December 2019, plaintiff expressed interest in

returning to medical management of his mental health. Id. at 0024.

I. Plaintiff Begins Treatment

On December 24, 2019, defendant met with plaintiff. Id. at 0023. The record

shows a notation that plaintiff was “guarded in his presentation” and “afraid to

divulge many details of his recent [history]” due to “shame and guilt over his meth

use.” Id. at 0022. Plaintiff told defendant that he had previously been diagnosed with

PTSD and bipolar disorder and was currently experiencing “daily anxiety and

insomnia” along with hearing “voices at night.” Id. He could not recall which prior

meds he had or had not taken or found effective. Id. Defendant prescribed Depakote2

and Desyrel/Trazodone.3 Taylor Decl., Ex. 1 at 0022.

1 Medical records are included as exhibits in the Declaration of Ross Taylor.

The Court will cite to the pagination marked in the bottom right-hand corner, after

the abbreviation “ABRO.”

2 Depakote (divalproex sodium) has been approved by the U.S. Food and Drug

Administration for use to treat bipolar disorder.

https://www.accessdata.fda.gov/drugsatfda docs/labe1/2011/018723s0371b1.pdf

3 Desyrel (trazodone) is a selective serotonin reuptake inhibitor (SSRI)

approved for treatment of depressive disorder.

https://www.accessdata.fda.gov/drugsatfda_docs/label/2017/018207s032lbl.pdf

Defendant discussed with plaintiff the “risks and benefits, effects and [side effects]”

of the medications. Id. at 0023. Plaintiff memorialized his agreement that: he had

been informed that there was no guarantee of benefit; that the side effects had been

discussed with him; and that he could choose to withdraw consent at any time. Id. at

0051.

Evidence in the record is that plaintiff received the first dose of both the

medications he was prescribed that very same night of December 24, 2019. Id. at

0002. The medications were provided as ordered over the following days. On

December 29, 2019, plaintiff asked to “see someone” about his “treatment program”

and release plan, expressing concern that the Trazadone was “not working very well”

and that he was experiencing side effects. Id. at 0057.

In response to plaintiff’s request, defendant held an appointment with him on

December 31, 2019. Id. at 0032. Although at the first visit, plaintiff could not recall

his prior medications, he now related that he used to take Seroquel to good effect. Id.

Plaintiff also requested to try an SSRI for his anxiety. Id. Based on plaintiff’s requests

and representations, defendant discontinued the Trazodone and started him on

Doxepin4 and Escitalopram.5 Defendant also increased plaintiff’s Depakote dose

because plaintiff described it as not “having enough effect.” Taylor Decl., Ex 1 at 0032.

II. Plaintiff’s Episode with Guards, Physicians

4 Doxepin is indicated for treatment of depression and/or anxiety.

https://www.accessdata.fda.gov/drugsatfda_docs/label/2014/070791s027lbl.pdf

5 Escitalopram (Lexapro) is a selective serotonin reuptake inhibitor (SSRI) indicated

for treatment of depression and/or anxiety.

https://www.accessdata.fda.gov/drugsatfda_docs/label/2017/021323s047lbl.pdf

On January 3, 2020, jail medical staff responded to a call about plaintiff

demonstrating odd behaviors. Id. at 0018-19. Plaintiff was found lying on his

mattress and generally would not verbally respond to any staff. Id. Although none of

his vital signs were abnormal, his providers and jail personnel determined he should

be taken to the medical unit for further evaluation. Id.

On his way to the medical evaluation, plaintiff stood and walked, at times

resisting deputies. Id. At the medical unit, plaintiff told deputies that he was not

suicidal, but would not respond to any other questions. Id. A plan was developed to

regularly check on plaintiff, with a factor in this decision being that plaintiff had been

recently caught hiding and not taking his Depakote. Id. at 0018-19.

III. Plaintiff’s Medication Refusals vs. Requests to Increase Medication

The next day, a mental health provider checked on plaintiff in the medical unit.

Id. at 0031. Plaintiff stated that he was not sure why he had “passed out” the day

prior but guessed that it was “potentially an allergic reaction.” Id. Plaintiff reported

that since January 3, 2020, he had refused his doses of Doxepin and Escitalopram

“because he did not like” how they made him feel. Id.

Although he expressed the Depakote was “helping” with his depression, he had

been refusing that medication as well. Id. (reporting a benefit from the Escitalopram);

Id. at 0002 (showing plaintiff’s refusals). Plaintiff accepted one more dose of Depakote

on January 6, 2020, but after later refusals, the jail the Depakote. Id. at 0002, 11. On

January 8, 2020, plaintiff submitted two non-emergent health service requests, one

asking for an increase in his medications and the other claiming that he had been

given too much Depakote. Id. at 0059-60. However, the medical record shows that

plaintiff had been refusing Depakote, and that the jail was no longer offering it to

plaintiff. Id. at 0002, 11.

Days later, on January 12, plaintiff again requested an increase of his

medications, which would be one of many such requests he would make over the

remainder of his incarceration. Id. at 0061 (January 12, 2020, request); see also, e.g.,

Id. at 0071, 73-74. Plaintiff repeated his claim that the jail had provided him too much

Depakote on January 13, 2020, even though that medication was no longer being

offered. Id. at 0029.

IV. Subsequent Care and Diagnosis

On January 15, 2020, plaintiff was seen by psychologist, Cherul Gifford. Id. at

28-39. After evaluating plaintiff, she recorded an assessment of “epileptic episodes v.

malingering.” Id. at 0028-29. Plaintiff was next evaluated by a medical Nurse

Practitioner who found plaintiff to be a “very poor historian” and, after evaluation,

found plaintiff to be in good health outside of a headache. Id. On January 21, 2020,

defendant Dr. Velez followed up in response to plaintiff’s claimed “episodes.” Id. at

0040-41. Plaintiff was alert and oriented and his cognition appeared intact. Id.

Through consultation, plaintiff agreed to try a new medication as a substitute for the

Depakote. Id. Plaintiff remained incarcerated into May of 2020, receiving ongoing

medical and mental health treatment, including encounters with defendant Dr.

Velez. Because these events appear unrelated to the allegations of plaintiff’s SAC,

the Court will not summarize that evidence.

V. Lawsuit

Plaintiff filed his Complaint on December 23, 2021, along with an application

to proceed IFP. See ECF Nos. 1 and 2. The Court dismissed the Complaint on January

21, 2022, with leave to amend, on grounds that plaintiff failed to state a claim upon

which relief could be granted, and thus failed to meet the standard for plaintiff to

proceed IFP. Order, ECF No. 7. Plaintiff filed an amended complaint. SAC, ECF No.

27. Defendant moved to dismiss plaintiff’s claims under Rule 12(b)(6). The Court

granted in part defendant’s motion to dismiss. ECF No. 35.

As relevant here, plaintiff’s surviving claims against defendant Dr. Velez

include (1) medical negligence and (2) negligent infliction of emotional distress, both

under Oregon state law. Plaintiff alleges that defendant prescribed plaintiff “seizure

and psychotropic drugs for no apparent reason” resulting in plaintiff suffering from

“Serotonin Syndrome.” SAC ¶ 9. Plaintiff alleges that the medications were “intended

for a different patient.” Id.

Plaintiff states that, in the days that followed treatment, he remained in a

state of “semi-blackout” during which he fell and hit his head three times. Id. at ¶ 11-

12. Plaintiff maintains that, because he was “medically addled” and physically non-

compliant, a correctional guard mistook plaintiff’s “medically-induced rigidity” with

defiance and “dealt violently” with plaintiff by “slamm[ing] him to the ground” and

dislocating his right shoulder. Id. at ¶ 13. In plaintiff’s view, “as a proximate result”

of defendant’s negligent “medical prescription poisoning,” he suffered physical injury

and emotional anguish. Id. at ¶ 16.

On April 14, 2023, Dr. Velez served Requests for Admission (“RFAs”) on

plaintiff. Taylor Decl. Ex. 2. Under Rule 36, plaintiff’s replies were due May 14, 2023.

Plaintiff did not respond by that date. Before filing his motion for summary judgment,

defendant conferred with plaintiff in accordance with Local Rule 7, notifying plaintiff

of each issue in the proposed motion. When plaintiff learned that defendant was

moving on the grounds that plaintiff failed to respond to defendants RFAs, plaintiff

sent, that night after 8:00 PM, the requested responses. MSJ at 7.

LEGAL STANDARD

Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, affidavits, and admissions on file, if any, show “that there is no

genuine dispute as to any material fact and the [moving party] is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). Substantive law on an issue determines the

materiality of a fact. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could

return a verdict for the nonmoving party determines the authenticity of the dispute.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing the absence of a genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party

shows the absence of a genuine issue of material fact, the nonmoving party must go

beyond the pleadings and identify facts which show a genuine issue for trial. Id. at

324. Special rules of construction apply when evaluating a summary judgment

motion: (1) all reasonable doubts as to the existence of genuine issues of material fact

should be resolved against the moving party; and (2) all inferences to be drawn from

the underlying facts must be viewed in the light most favorable to the nonmoving

party. T.W. Elec., 809 F.2d at 630-31.

DISCUSSION

Defendant moves for summary judgment on plaintiff’s claims, contending that

plaintiff failed to timely answer requests for admission, establishing as a matter of

law plaintiff’s admission that there was no negligence, causation, or harm. Id.

Additionally, defendant asserts that, even without the deemed admissions, the record

establishes that there is no genuine dispute as to any material fact and defendant is

entitled to judgment as a matter of law.

In response, plaintiff provides a declaration from Dr. Mark Baskerville. See

Baskerville Decl., ECF No. 44. Dr. Baskerville stated that he reviewed “a medication

log” and “[plaintiff’s] email correspondence with his lawyer and concluded that Dr.

Velez violated the standard of care and negligently inflicted emotional distress on

plaintiff. Baskerville Decl. ¶ 7. Plaintiff’s opposition to summary judgment is based

exclusively on Dr. Baskerville’s declaration. Resp. at 9, ECF No. 43.

I. Whether Plaintiff’s Failure to Respond is a “Deemed Admission”

As an initial matter, the Court agrees with defendant that, in reaching its

decision on summary judgment, evidence in the record is sufficient, such that the

Court need not rely on plaintiff’s legally “deemed” admissions. Accordingly, plaintiff’s

motion to amend or correct his RFAs is DENIED. The Court did not consider

plaintiff’s admissions—or lack thereof—in resolving defendant’s motion.

II. Admissibility of Expert Opinion

For medical malpractice claims, expert testimony is generally required to

establish the standard of care. See Getchell v. Mansfield, 260 Ore. 174, 179, 489 P2d

953 (1971) (“In most charges of negligence against professional persons, expert

testimony is required to establish what the reasonable practice is in the

community.”). The rationale behind that rule is that a layperson typically would not

know what an “ordinarily careful” physician would do under the circumstances. See

id. (Noting that the reason for the expert testimony requirement is that “what is

reasonable conduct for a professional is ordinarily not within the knowledge of the

usual jury”).

Regarding the sufficiency of information, an expert's opinion must rest on

“facts or data in the case that the expert has been made aware of or personally

observed,” not merely assumptions and speculation. Fed. R. Evid. 703; see Gui-droz-

Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 830-31 (9th Cir. 2001); DePaepe v. Gen.

Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998). A party's own speculation is

insufficient to create a genuine issue of material fact and a party cannot make it

sufficient simply by finding an expert who is willing to assume its correctness.

Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856-57 (9th Cir. 2019).

Further, an expert's opinions are not reliable where the expert bases her

conclusions on “mere subjective beliefs or unsupported speculation.” Claar v.

Burlington N.R.R. Co., 29 F.3d 499, 502 (9th Cir. 1994). “An opinion based on . . .

unsubstantiated and undocumented information is the antithesis of the scientifically

reliable expert opinion admissible under Daubert and Rule 702.” Cabrera v. Cordis

Corp., 134 F.3d 1418, 1423 (9th Cir. 1998). In determining the reliability of proffered

expert testimony, the district court's task “is to analyze not what the experts say, but

what basis they have for saying it.” Daubert v. Merrell Dow Pharm., Inc. (“Daubert

II”), 43 F.3d 1311, 1316 (9th Cir. 1995). “

Here, Dr. Baskerville states that he has reviewed only “a medication log

provided by the client (see Attachment B) and [Plaintiff]’s email correspondence with

his attorney.” Baskerville Decl., ¶ 4. The emails are not attached as exhibits, so it is

unknown what they provide. Dr. Baskerville’s declaration merely recites that

plaintiff “may have received another inmate’s medication.” Id ¶ 3. Next, The

medication log, however, is only a small excerpt of plaintiff’s medical record. It

contains only the medication prescribed, starting and ending dates of the order, the

ordering clinician, its status (e.g. “approved” or “pending”), and whether it is to be

provided on a schedule or as needed (“PRN”). Baskerville Decl., Ex. 2.

Dr. Baskerville did not review any other portion of the medical record. There

is no evidence that his testimony was developed from a review or understanding of

plaintiff’s clinical evaluations in the jail; Dr. Velez’s December 24, 2019, encounter

with plaintiff from which medications were ordered; plaintiff’s consent to the

medications; plaintiff’s following evaluations and encounters with medical and

mental health staff; Dr. Velez’s December 31, 2019, encounter with Plaintiff at which

the prescriptions were adjusted; or any of the documented events which followed.

Accordingly, Dr. Baskerville lacks sufficient information to form any opinions

about the propriety of the prescriptions written, the rationale for them being ordered,

or the effect they may or may not have had on plaintiff. The portions of the declaration

that constitute Dr. Baskerville’s opinion, therefore, are stricken.

III. Medical Negligence

Plaintiff claims defendant negligently prescribed plaintiff’s medications, and

caused him prescription poisoning resulting in battery by prison guards to gain

plaintiff’s compliance while in a medically “addled” state. SAC ¶¶ 13, 30, 35.

Defendant argues that plaintiff’s exclusive reliance on Dr. Baskerville’s declaration

to establish a triable issue of fact fails. Defendant contends that (1) Dr. Baskerville

is not qualified to opine on the standard of care of Dr. Velez; (2) Dr. Baskerville’s

declaration does not actually establish that Dr. Velez violated any standard of care;

and (3) Dr. Baskerville’s declaration does not establish causation. MSJ at 3.

To prevail on a medical negligence claim in Oregon, a plaintiff must establish

“(1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3)

a resulting harm to the plaintiff measurable in damages; and (4) causation, i.e., a

causal link between the breach of duty and the harm.” Swanson v. Coos Cnty., 2009

WL 5149265, Civ. No. 08–6312–AA, at *5 (D.Or.2009) (citing Stevens v. Bispham, 316

Or. 221 (1993). In Oregon, the common-law standard has been codified to read as

follows: A physician licensed to practice medicine or podiatry by the Oregon Medical

Board has the duty to use that degree of care, skill and diligence that is used by

ordinarily careful physicians in the same or similar circumstances in the community

of the physician or a similar community. ORS 677.095(1).

Plaintiff must also establish causation. In an Oregon medical malpractice case,

the plaintiff must present evidence that there is a “reasonable medical probability”

that a defendant's negligence caused harm to plaintiff. See Joshi v. Providence Health

System of Oregon, 198 Or. App. 535, 544, 108 P.3d 1195 (2005), aff'd by 342 Or. 152,

149 P.3d 1164 (2006); Horn v. National Hospital Association, 169 Or. 654, 679, 131

P.2d 455 (1942). Causative proof “must have the quality of reasonable probability,

and a mere possibility that the alleged negligence of the defendant was the cause of

plaintiff's injuries is not sufficient.” Cleland v. Wilcox, 273 Ore. 883, 887, 543 P.2d

1032 (1975); Sims v. Dixon, 224 Ore. 45, 48, 355 P.2d 478 (1960); see also Henderson

v. U. P. R. R. Co., 189 Or. 145, 162, 219 P.2d 170 (1950) (“Without competent medical

testimony that the blow which the plaintiff received was the probable cause of the

gangrene and resulting amputation, there could be no case sufficient to go to the jury

on that question.”).

Here, the evidence shows that there was no deviation from the standard of

care. Dr. Velez saw plaintiff on December 24, 2019, and December 31, 2019. At the

first visit, Dr. Velez assessed plaintiff—a patient with a significant mental health

history, who had been off his medications for months while using illicit drugs, and

prescribed medications aimed at providing plaintiff relief. When plaintiff complained

of unwanted side effects, Dr. Velez evaluated him again and adjusted the

pharmacological approach, discontinuing one, adjusting the dose of another, and

writing prescriptions for additional medications. Plaintiff has produced no evidence

to substantiate his claims that these medications were “mis-prescribed” or intended

for some other patient. The medical record shows the contrary, and evidence of

plaintiff malingering.

As for causation, plaintiff produces no evidence that a purported standard of

care violation caused plaintiff some harm on a reasonable medical basis. This is

especially true for plaintiff’s claim that defendant caused a “multi-day-blackout” and

battery by jail staff.

Plaintiff has offered highly attenuated conclusory accusations. even in viewed

in the light most favorable to plaintiff, and in the abstract and not for medical opinion,

the declaration of Dr. Baskerville is, at most, unhelpful. Accordingly, summary

judgment is granted to defendant.

IV. Negligent Infliction of Emotional Distress

Plaintiff alleges that the Dr. Velez, committed medical negligence in its

prescription poisoning of [P]laintiff and the ensuing emotional, psychological and

physical injuries to his mind, body and soul, head, arms, shoulder neck, constituted

Negligent Infliction of Emotional Distress.” SAC ¶ 35. Further, that “Dr. Velez

negligently inflicted severe emotional distress on [Plaintiff], his acts were the cause

of [Plaintiff’s] severe emotional distress, and [Dr. Velez’s] acts constituted an

extraordinary transgression of the bounds of socially tolerable conduct.” Id.

Oregon law allows a plaintiff to recover damages for emotional distress when

a defendant negligently causes foreseeable, serious emotional distress that infringes

on some other legally protected interest. Philibert v. Kluser, 360 Or. 698, 702 (2016).

Freedom from physical harm is one such protected interest. Id. at 702.

Described above, there is no evidence is that Dr. Velez violated any standard

of care in prescribing plaintiff’s medications. Plaintiff has not produced any evidence

to the contrary. Defendant’s evidence is that he did not prescribe medications to

plaintiff that were intended for some other person; that he was not at any point

negligent; that he did not cause plaintiff any foreseeable, serious emotional distress;

and, that plaintiff has not been harmed or incurred any damages caused by

defendant. Accordingly, summary judgment is granted to defendant.

CONCLUSION

For the reasons explained, defendant’s motion for summary judgment, ECF

No. 40, is GRANTED. Plaintiff’s RFA motion, ECF No. 42, is DENIED. Defendant

Dr. Velez is DISMISSED from this case.

IT IS SO ORDERED.

Dated this _1_2_t_h_ day of __M_a__rc_h___ 2024.

______________/s_/_A_n_n__ A__ik_e_n__

Ann Aiken

United States District Judge