Anthony Wilson v. EMT Sean Flack

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14294

____________________

ANTHONY WILSON,

KIMBERLY WILSON,

the parents of Martez Wilson,

ESTATE OF MARTEZ WILSON,

Plaintiffs-Appellants,

versus

EMT SEAN FLACK,

in his individual capacity,

BRIAN PORTERFIELD,

Paramedic; in his individual capacity,

Defendants-Appellees,

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2 Opinion of the Court 19-14294

CITY OF DOUGLASVILLE, GA.,

OFFICER COYLEE DANLEY,

OFFICER ANDREW SMITH,

Defendants.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:17-cv-00634-WMR

____________________

Before JORDAN, BRASHER, and CARNES, Circuit Judges.

JULIE CARNES, Circuit Judge:

Following Martez Wilson’s attempted flight from law en-

forcement officers and Wilson’s arrest by those officers, the defend-

ants in this case—Sean Flack (an EMT) and Brian Porterfield (a par-

amedic)—were summoned to the site of the arrest based on Wil-

son’s complaints that he could not breathe. Defendants having de-

termined that Wilson did not require hospitalization, the officers

transported Wilson to jail. Upon arrival, they discovered that Wil-

son was dead, and ultimately it was determined that his death was

caused by a rare condition associated with undiagnosed sickle cell

trait.

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19-14294 Opinion of the Court 3

The plaintiffs in this case include Anthony and Kimberly

Wilson, who are Wilson’s parents and sole survivors and who al-

lege that, by deliberately disregarding a known and serious medical

risk to Wilson, Defendants caused their son’s demise. Seeking

damages arising from his death, they assert a § 1983 deliberate in-

difference claim and a state negligence claim against Defendants.

Also a plaintiff in this case is Wilson’s estate, which asserts the same

§ 1983 deliberate indifference claim and state negligence claim

against Defendants, but which seeks damages for Wilson’s pre-

death suffering allegedly caused by Defendants’ actions.

The district court excluded the testimony of Plaintiffs’ med-

ical causation expert pursuant to Federal Evidence Rule 702 and

subsequently granted summary judgment to Defendants on all

Plaintiffs’ claims. Plaintiffs appeal the district court’s exclusion of

their expert and its summary judgment ruling.

Having carefully reviewed the record and the briefs, and af-

ter oral argument, we affirm in part and reverse in part. Specifi-

cally, we affirm the district court’s exclusion of Plaintiffs’ medical

expert pursuant to Rule 702 and the court’s grant of summary judg-

ment as to the Wilsons’ wrongful death claims—that is, the § 1983

and state negligence claims asserting that Defendants caused their

son’s death. We reverse the district court’s grant of summary judg-

ment as to the Estate’s § 1983 and state law claims seeking damages

for Wilson’s pre-death pain and suffering allegedly caused by De-

fendants’ conduct. As to this pain and suffering claim, we remand

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4 Opinion of the Court 19-14294

the case back to the district court for further proceedings consistent

with this opinion.

BACKGROUND

On March 3, 2015, Douglasville police officers Coylee Dan-

ley and Andrew Smith responded to a 911 call reporting a burglary

in process at Freewheeling Motor Sports, a recreational vehicle

dealership in Douglasville, Georgia. The officers were advised by

dispatch that two male suspects had cut the fence at the dealership

and were fleeing on foot into a nearby residential neighborhood.

When they arrived at the scene, the officers canvassed the area and

found an individual later identified as Martez Wilson lying face

down in a driveway. Officer Danley approached Wilson in the

driveway and directed him to put his hands behind his back, where-

upon Wilson complied and was handcuffed. A second male sus-

pect, Carlos Burroughs, subsequently appeared on the scene and

was apprehended and handcuffed without incident.

Wilson was limp when the officers found him in the drive-

way, and he complained that he was having trouble breathing. Of-

ficer Smith propped Wilson up against his knee so that he was sit-

ting upright, and he testified that he felt Wilson make a coughing

sound as he attempted to breathe. Smith radioed dispatch, re-

ported that Wilson was complaining that he could not breathe, and

requested EMS assistance at the scene.

While awaiting EMS, the officers put Wilson and Burroughs

in the back of separate patrol cars. Wilson had to be carried to the

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19-14294 Opinion of the Court 5

patrol car because he was unable to stand. There is evidence that

Wilson became increasingly less responsive during his interaction

with the officers.

EMS Defendants Sean Flack (an EMT) and Brian Porterfield

(a paramedic) arrived on the scene about nine minutes after Wilson

was put in the back of the patrol car. Defendants were advised

when they arrived that Wilson was apprehended after running

from a crime scene and that he had said he was unable to breathe.

The officers also allegedly told Defendants that Wilson “no longer

wanted to talk to anybody” and they suggested he was faking ill-

ness. The officers did not tell Defendants they had found Wilson

lying face down in a driveway, that he could not stand and had to

be carried to the patrol car, and that he had become less responsive

over time.

After speaking to the officers, Defendants approached the

patrol car to evaluate Wilson. Wilson was sitting upright in the

back of the car when Defendants first saw him, although Plaintiffs

suggest that Wilson was already unconscious and being held up-

right by his seatbelt. Porterfield stated in a written report summa-

rizing his assessment of Wilson that Wilson’s eyes were open when

he first saw him, but there is other evidence indicating that Wil-

son’s eyes were closed the entire time Defendants were on the

scene.

The parties agree that Wilson was not responsive to any

questions Defendants asked him, including Porterfield’s question

about whether Wilson wanted to go to the hospital. The parties

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6 Opinion of the Court 19-14294

dispute whether Wilson was unable to respond or just unwilling to

respond. Porterfield apparently thought it was the latter because

he testified that he had difficulty obtaining Wilson’s “consent” for

further assessment or treatment. Nevertheless, Porterfield admit-

ted in his deposition that he could not determine for certain

whether Wilson was conscious and aware of his surroundings dur-

ing his evaluation.

Despite Wilson’s non-responsiveness, Defendants com-

pleted at least a cursory assessment of his condition. Porterfield

stated that he felt Wilson’s face and determined that his skin was

“warm and dry” and that he visually assessed Wilson’s breathing

by watching his chest movements. Porterfield then used a ZOLL

monitor to determine Wilson’s pulse and oxygen levels. Although

Defendants testified that Wilson’s pulse was in the 50s or 60s and

that his oxygen level was 98 or 99%—both of which would have

been considered normal—Officer Smith reported to the EMTs

who treated Wilson at the jail later that evening that Wilson’s pulse

had been 110 and his blood oxygen level 92%. Accordingly, there

is a disputed issue of fact concerning Wilson’s pulse rate and oxy-

gen level.

Near the end of Wilson’s medical assessment, Douglas

County Sheriff’s Deputy Ryan Cadwell, who had arrived on the

scene for backup, noticed that Wilson was foaming at the mouth.

Cadwell reported that fact to Defendants, stating “he’s foaming at

the mouth now, just so you know.” Cadwell’s comment was cap-

tured on a dashcam video recording of the incident.

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19-14294 Opinion of the Court 7

According to Defendants, because they were satisfied with

Wilson’s overall appearance, the ZOLL monitor readings, and a

lack of observable respiratory issues, they believed his breathing

complaints simply stemmed from overexertion after running from

the police. They decided Wilson did not need further treatment,

but offered to transport Wilson to the hospital if the officers

thought that best. One officer commented, “If he doesn’t want to

talk to you, he doesn’t want to go to the hospital.” Defendants

then terminated the assessment, after spending about seven

minutes at the scene and four minutes actively evaluating Wilson.

Porterfield admitted that he and Flack left the scene knowing they

had not done a full assessment of Wilson, and still unsure about

what had caused his breathing complaint.

After Defendants left the scene, the officers radioed dispatch

and stated that, although Wilson had been evaluated by EMS, he

would not wake up and likely could not be booked into jail in his

current state. Nevertheless, the officers transported Wilson and

Burroughs to the jail, arriving at the jail about fourteen minutes

after Defendants left the scene of Wilson’s arrest. When they ar-

rived at the jail, the officers first walked Burroughs inside while

Wilson remained in the back seat of Officer Smith’s patrol car.

When the officers returned to retrieve Wilson, he was not

moving and his body was limp. The officers carried Wilson to a

cell. Once they reached the cell, the officers realized that Wilson

was no longer breathing and had no pulse. They summoned EMS

again and a different paramedic crew arrived, but the responding

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8 Opinion of the Court 19-14294

paramedic was unable to resuscitate Wilson and he was pro-

nounced dead at that time.

Wilson’s cause of death was later determined by autopsy to

be what is known as an ECAST (exercise collapse associated with

sickle cell trait) event, a rare medical condition that is poorly un-

derstood but that is somewhat like exertional heat illness. As de-

scribed by Plaintiffs, an ECAST is triggered by extreme exertion in

an individual with sickle cell trait—which generally is asympto-

matic and undiagnosed until after death—causing systemic acidosis

and dehydration that ultimately result in blood cell sickling, clot-

ting and clumping of blood cells, and oxygen deprivation leading

to death. Supported by their medical expert, Defendants note that

there are no established ways to diagnose or treat an ECAST event

while it is occurring and that reported cases in the literature usually

prove fatal.

Wilson’s parents and his estate sued the City of Douglasville,

the officers involved in Wilson’s arrest, and Defendants Flack and

Porterfield to recover for Wilson’s death and for his pre-death pain

and suffering, asserting a federal claim for damages under § 1983

and a state negligence claim. As relevant to this appeal, Plaintiffs

allege that Defendants Flack and Porterfield were deliberately in-

different to Wilson’s serious medical needs in violation of his Four-

teenth Amendment rights, giving rise to a § 1983 claim, and that

they breached various Douglas County policies and the applicable

standard of care for treatment with regard to Wilson, as required

to recover under Georgia negligence law.

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19-14294 Opinion of the Court 9

Following discovery, Defendants moved to exclude the

opinion of Plaintiffs’ medical causation expert, Dr. Kris Sperry, and

for summary judgment on Plaintiffs’ § 1983 deliberate indifference

and state negligence claims. The district court granted both mo-

tions, concluding that: (1) Dr. Sperry was not qualified to testify as

an expert and his medical causation opinion was unreliable and

(2) Defendants Flack and Porterfield were entitled to summary

judgment on Plaintiffs’ federal § 1983 and state negligence claims.

Plaintiffs appeal both rulings. 1 As noted above, and for the reasons

discussed below, we affirm in part and reverse and remand in part.

DISCUSSION

I. Standards of Review

We review the district court’s decision to exclude Dr.

Sperry’s expert testimony for an abuse of discretion. See St. Louis

Cond. Ass’n, Inc. v. Rockhill Ins. Co., 5 F.4th 1235, 1242 (11th Cir.

2021). “A district court abuses its discretion if it applies an incorrect

legal standard, follows improper procedures in making [a] determi-

nation, or makes findings of fact that are clearly erroneous.” Orig-

inal Brooklyn Water Bagel Co. v. Bersin Bagel Grp., LLC, 817 F.3d

719, 724 (11th Cir. 2016) (citation and quotation marks omitted).

1 The court also granted summary judgment in part to the City and denied

qualified immunity to Officers Danley and Smith, which rulings initially were

appealed. By agreement of the parties, Plaintiffs have now dismissed their

claims against the City, Danley, and Smith. Plaintiffs also dismissed their

claims against Deputy Cadwell.

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10 Opinion of the Court 19-14294

“A district court may also abuse its discretion by applying the law

in an unreasonable or incorrect manner.” Id. (citation and quota-

tion marks omitted). The abuse of discretion standard “requires

that we defer to the district court’s ruling unless it is manifestly er-

roneous.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir.

2005) (quotation marks omitted). In addition, we give the district

court “considerable leeway” to evaluate the reliability of expert tes-

timony, a task that is “uniquely entrusted” to that court. Prosper

v. Martin, 989 F.3d 1242, 1249 (11th Cir. 2021).

We review the district court’s grant of summary judgment

based on qualified immunity de novo, applying the same legal

standards as the district court. See Khoury v. Miami-Dade Cty. Sch.

Bd., 4 F.4th 1118, 1124 (11th Cir. 2021). In conducting our review,

we resolve any factual disputes and draw all evidentiary inferences

in favor of Plaintiffs and then decide whether Defendants are enti-

tled to qualified immunity under Plaintiffs’ version of the facts. See

id. at 1124–25. See also Tolan v. Cotton, 572 U.S. 650, 656 (2014).

We acknowledge that the “facts, as accepted at the summary judg-

ment stage of the proceedings, may not be the actual facts of the

case.” McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009)

(quotation marks omitted). Nevertheless, we view the facts from

Plaintiffs’ perspective because the determinative issue on appeal in

a qualified immunity case is “not which facts the parties might be

able to prove” but whether “certain given facts” demonstrate a vi-

olation of clearly established law. Crenshaw v. Lister, 556 F.3d

1283, 1289 (11th Cir. 2009).

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19-14294 Opinion of the Court 11

II. Exclusion of Dr. Sperry’s Expert Testimony

As noted, Martez Wilson died of complications arising from

an ECAST event, which is a rare and poorly understood medical

phenomenon triggered by overexertion in an individual with sickle

cell trait. Unlike sickle cell disease, sickle cell trait does not typically

cause any observable symptoms, and thus it usually is never diag-

nosed during the individual’s life. But an individual with sickle cell

trait can unexpectedly experience an ECAST in conditions of ex-

treme exertion under stress, and that is what happened to Martez

Wilson when he ran from the police.

To prove their § 1983 or their state wrongful death claim,

Plaintiffs were obliged to show that Defendants had acted with de-

liberate indifference to the symptoms presented by Wilson. But

even if deliberate indifference was shown, Plaintiffs were also re-

quired to prove that Defendant’s deficient performance caused

Wilson’s death. See Goebert v. Lee County, 510 F.3d 1312, 1326

(11th Cir. 2007) (“[A]s with any tort claim, [a plaintiff] must show

[her] injury was caused by the defendant’s wrongful conduct” to

prevail on a deliberate indifference claim); Zwiren v. Thompson,

276 Ga. 498, 500 (2003) (“It is clear that a plaintiff cannot recover

for medical malpractice, even where there is evidence of negli-

gence, unless the plaintiff establishes by a preponderance of the ev-

idence that the negligence either proximately caused or contrib-

uted to cause plaintiff harm.” (citation and quotation marks omit-

ted and alteration adopted)).

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12 Opinion of the Court 19-14294

It was for this purpose that Plaintiffs proffered Dr. Sperry’s

testimony. The doctor’s testimony was intended to establish that

if Defendants had provided oxygen and fluids to Wilson and trans-

ported him quickly to the hospital, he more likely than not would

have survived the ECAST event. In contrast, and supported by

their expert, Defendants note that an ECAST event has unclear di-

agnostic criteria, with no known treatment, and that it is usually

fatal regardless of medical intervention. As such, Defendants con-

tend that their treatment failures—assuming there were failures—

did not contribute to Wilson’s death.

Defendants argued and the district court concluded that Dr.

Sperry’s purported expert testimony was not admissible. Federal

Rule of Evidence 702 governs the admissibility of expert testimony

in federal cases. See United States v. Gillis, 938 F.3d 1181, 1193

(11th Cir. 2019). Under Rule 702, expert testimony is only admis-

sible if: (1) “the expert is qualified to give competent testimony

about the matters he intends to address,” (2) the methodology the

expert used to reach his conclusions and the opinion derived from

it are reliable, and (3) “the [expert’s] testimony will assist the trier

of fact . . . to understand the evidence or determine a fact in issue.”

Id. at 1193–94. The proponent of expert testimony has the burden

to establish its admissibility by a preponderance of the evidence.

See Moore v. Intuitive Surgical, Inc., 995 F.3d 839, 851 (11th Cir.

2021).

The district court held that Plaintiffs met neither the first or

second prong of the above test. That is, the court held that

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Plaintiffs had failed to show (1) that Dr. Sperry was qualified to

opine as to the survivability or proper treatment of Wilson’s

ECAST event or (2) that the doctor’s opinion that Wilson likely

would have survived the ECAST event if Defendants had provided

him with oxygen, fluids, and rapid transport to the hospital was re-

liable. For the reasons discussed below, we find no abuse of discre-

tion in either ruling.

A. Dr. Sperry’s Qualifications

Dr. Sperry is a forensic pathologist, with expertise in deter-

mining the cause of death or the cause of injuries in living or de-

ceased individuals. Dr. Sperry acknowledged in his deposition that

he has no special expertise in sickle cell disease—or even in hema-

tology, generally—and that he does not treat patients or recom-

mend therapeutic procedures for conditions associated with sickle

cell disease or sickle cell trait. 2 Indeed, Dr. Sperry does not treat

patients in a clinical setting at all, and he could not recall in his dep-

osition ever treating an individual experiencing an ECAST, alt-

hough he has identified it as a cause of death post-mortem. Nor

has Dr. Sperry written or published any articles dealing with sickle

cell disease, sickle cell trait, or associated conditions like the ECAST

Wilson experienced. Based on Dr. Sperry’s admissions about his

lack of expertise or experience in the relevant field, the district

2 Sperry recalled treating a few sickle cell disease patients in an emergency

room setting when he was an intern in the 1970s, but he could not remember

any details about those cases.

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14 Opinion of the Court 19-14294

court concluded he was unqualified to testify as to the proper treat-

ment or survivability of Wilson’s ECAST.

The district court’s ruling as to Dr. Sperry is consistent with

this Court’s case law applying Rule 702, which has recognized the

need for an expert to have expertise specific to the topic at issue to

satisfy Rule 702. See United States v. Brown, 415 F.3d 1257, 1269

(11th Cir. 2005) (affirming the district court’s refusal to qualify an

expert to testify as to the chemical structure of a controlled sub-

stance where the expert’s “academic work and professional experi-

ence related more to plant pathology and botany than to chemis-

try”). If the relevant topic here was the cause of Wilson’s death,

Dr. Sperry would be well qualified to offer an opinion: as a forensic

pathologist, determining the cause of death is his specialty. But the

cause of Wilson’s death, which everyone agrees was a rare and un-

expected ECAST, is not in dispute. What is in dispute—at least

regarding Plaintiffs’ wrongful death claim—is whether Wilson

likely would have survived the ECAST if Defendants had provided

the treatments suggested by Plaintiffs: oxygen, IV fluids, and rapid

transport to the hospital. Given Dr. Sperry’s testimony that he has

no expertise in hematology or sickle cell disease and no education

in or experience treating any condition associated with sickle cell

disease or sickle cell trait—and indeed, that he has very little expe-

rience treating patients in a clinical setting at all—the district court

reasonably concluded that Dr. Sperry is not qualified to render an

expert opinion as to the survivability of Wilson’s ECAST or the

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19-14294 Opinion of the Court 15

potential efficacy of any treatments Defendants might have admin-

istered to Wilson on the night of his arrest.

Plaintiffs argue that the district court’s ruling that Dr. Sperry

was unqualified to offer an expert opinion in this case was incor-

rectly based on a “broad rule that a doctor of one specialty cannot

testify about something that encroaches on another’s specialty.”

That is a mischaracterization of the court’s reasoning for excluding

Dr. Sperry’s opinion, which was primarily based on Dr. Sperry’s

own admission that he lacked any meaningful training, experience,

knowledge, or skill regarding the appropriate treatment for an

ECAST in the field or in a clinical setting, not to mention the effec-

tiveness of any such treatment. Indeed, Defendants have presented

unrebutted evidence that these issues are poorly understood even

among medical doctors who do have clinical experience treating

sickle cell disease and ECAST events, much less someone like Dr.

Sperry, who acknowledges a lack of such experience.

Plaintiffs also emphasize that Dr. Sperry has vast experience

studying cases involving unknown deaths, in the course of which

he has performed over 6,000 autopsies, including five or six autop-

sies of individuals who died of complications involving sickle cell

trait. According to Plaintiffs, because Dr. Sperry’s experience qual-

ifies him to understand the physiological mechanism by which an

ECAST causes a person to die—which Dr. Sperry describes as a

sickling of red blood cells, thickening of blood, and ultimately the

deprivation of oxygen—he should be allowed to extrapolate the

medical interventions that might have prevented death. The

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16 Opinion of the Court 19-14294

district court did not abuse its discretion by concluding that such

an extrapolation would clearly veer into the territory of specula-

tion, given Dr. Sperry’s admitted lack of expertise or clinical expe-

rience in hematology, generally, or with sickle cell disease, sickle

cell trait, and ECAST, specifically.

B. Reliability

As noted, the district court also held that Dr. Sperry’s testi-

mony as to the survivability of Wilson’s ECAST event should be

excluded because Dr. Sperry failed to set forth a reliable basis to

support his opinion on that issue. In so holding, the court again

relied on Dr. Sperry’s admissions in his deposition testimony, spe-

cifically: (1) Dr. Sperry’s acknowledgement that there are no evi-

dence-based guidelines or treatment protocols for managing an

ECAST event as it is occurring and (2) Dr. Sperry’s admission that

no peer-reviewed studies support his hypothesis that oxygen and

fluids—which Plaintiffs argue Defendants should have provided to

Wilson on the scene—would have improved Wilson’s chances of

surviving the ECAST he experienced on the night of his arrest. In-

deed, Dr. Sperry repeatedly referred in his deposition to the lack of

certainty in the field regarding the mechanism that triggers an

ECAST, the pathophysiology of such events, and the “best prac-

tices” or “established . . . approaches to [their] diagnosis and pre-

vention.” Pointedly undermining his opinion as to Wilson’s sur-

vivability under the circumstances here, Dr. Sperry conceded in his

deposition that he is not aware of any studies as to whether an

ECAST is reversible once it has been triggered, nor any peer-

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19-14294 Opinion of the Court 17

reviewed studies regarding the effectiveness of any treatments

once an ECAST has begun.

Based on our review of Dr. Sperry’s deposition testimony

and the supporting documentation cited in his proffered opinion,

the district court did not “manifestly err” when it determined that

the doctor’s opinion was unreliable. See Moore, 995 F.3d at 850

(“We will find an abuse of discretion only if the district court’s

[Rule 702 ruling] ruling was manifestly erroneous.”). Plaintiffs ar-

gue that the district court erred by failing to apply the reliability

factors identified by the Supreme Court in Daubert v. Merrell Dow

Pharmaceuticals Inc., 509 U.S. 579 (1993), including: (1) whether

the expert’s methodology has been or is capable of being tested,

(2) whether the expert’s theory or technique has been subjected to

peer review and publication, (3) the known or potential error rate

of the expert’s methodology, and (4) whether the expert’s tech-

nique has been generally accepted in the proper scientific commu-

nity. See Prosper v. Martin, 989 F.3d 1242, 1249 (11th Cir. 2021)

(discussing the Daubert reliability factors). As the Supreme Court

has clarified in its post-Daubert case law, “a trial court may con-

sider one or more of the more specific factors that Daubert men-

tioned when doing so will help determine that testimony’s reliabil-

ity” but “Daubert’s list of specific factors neither necessarily nor ex-

clusively applies to all experts or in every case.” See Kumho Tire

Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (emphasis in orig-

inal). “Rather, the law grants a district court the same broad lati-

tude when it decides how to determine reliability as it enjoys in

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18 Opinion of the Court 19-14294

respect to its ultimate reliability determination.” Id. (emphasis in

original). Thus, the district court’s failure to expressly tick off each

Daubert factor does not undermine its reliability analysis.

Plaintiffs also fault the district court for failing to delve

deeply enough into the articles on ECAST treatment and surviva-

bility cited by Dr. Sperry in support of his opinion. Having care-

fully reviewed the cited articles ourselves, we are not persuaded

that the district court should be reversed on this issue. Some of the

articles are simply not relevant to the stated subject of Dr. Sperry’s

opinion—that is, the survivability of Wilson’s ECAST event. For

example, the 2016 Kanzaria article that is attached to Dr. Sperry’s

declaration is just a longitudinal study showing a general decline in

mortality rates over the past several years among adults treated in

emergency hospital settings. The article attributes the decline to

many factors, including the increased use of hospice care and

changes in resuscitation policies. It says nothing at all about treat-

ment for or the survivability of the ECAST condition that caused

Wilson’s death.

Several of the other articles cited by Dr. Sperry deal primar-

ily with preventive measures—such as screening, hydration, pro-

gressive heat acclimatization, and graduated conditioning—to

avoid ECAST events in the settings where they are most likely to

occur, including sports and army training. These articles are more

germane to the topic at hand, but they do not support Dr. Sperry’s

opinion that Wilson likely would have survived the ECAST he suf-

fered on the night of his arrest if he had been given the

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19-14294 Opinion of the Court 19

recommended interventions. The fact that certain measures might

prevent an ECAST from happening in the first place does not mean

those measures can stop or reverse an ECAST that is already in

progress. Again, Dr. Sperry himself cited one article in his deposi-

tion observing that “[n]o evidence-based guidelines for managing

an ECAST event are currently available.”

Finally, certain articles cited by Dr. Sperry recommend oxy-

gen and fluids as the best practice for responding to an ECAST, but

Dr. Sperry acknowledged in his deposition that the effectiveness of

these treatments could not be quantified. For example, in formu-

lating his opinion, Dr. Sperry relied heavily on an article reporting

reduced mortality in a population of military recruits when hydra-

tion and supplemental oxygen protocols were implemented to re-

duce exertional heat illness, but Dr. Sperry admitted that the article

did not conclude that such treatment would, to any degree of med-

ical certainty, prevent death from an ECAST. 3 That oxygen and

3 The same is true of the 2007 Eichner article cited by Dr. Sperry. Eichner, a

medical professor and college football team internist recommends oxygen, flu-

ids, and rapid transport to the hospital when an ECAST is suspected. Eichner

reports anecdotally that an athlete with mild sickling “feels fine” after sitting

in a cold tub for ten to fifteen minutes, drinking fluids, and getting supple-

mental oxygen by face mask, and he suggests very generally that supplemental

oxygen, cooling, and rapid transport to the hospital can “save a life.” But there

is no indication that Wilson’s sickling was mild when Defendants encountered

him—indeed, Plaintiffs’ own evidence suggests the opposite—and the Eichner

article does not provide any other data that would support Dr. Sperry’s opin-

ion that Wilson likely would have survived the ECAST he experienced under

the circumstances here.

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20 Opinion of the Court 19-14294

fluids are the recommended course of treatment does not establish

that they likely would have resulted in Wilson’s survival, and Dr.

Sperry acknowledged that he could offer no opinion as to the spe-

cific recommended use of oxygen and fluids—for example, what

type of fluids to provide, the rate, quantity, and duration of fluids

and oxygen to administer, and at what point in the ECAST process.

Dr. Sperry conceded further that there is no literature or study to

support the proposition that an ECAST generally is survivable once

triggered, or that Wilson’s death specifically could have been pre-

vented if Defendants had provided oxygen, fluids, and rapid

transport to the hospital.

Plaintiffs argue that medical experts are not required to base

their opinions on controlled studies, citing Adams v. Laboratory

Corporation of America, 760 F.3d 1322, 1328–31 (11th Cir. 2014).

Plaintiffs infer from Adams that the lack of peer-reviewed studies is

not a legal basis to exclude Dr. Sperry’s opinion, but Adams is dis-

tinguishable. The issue in Adams was whether the defendant la-

boratory’s cytotechnologists who reviewed the plaintiff’s pathol-

ogy slides had negligently failed to identify cancerous cells in the

slides. See id. at 1325. To establish negligence, the plaintiff offered

the opinion of the Director of Cytopathology from the Johns Hop-

kins School of Medicine, an expert who had helped develop the

classification system for identifying pre-cancerous and cancerous

cells on the types of pathology slides involved in the case and who

had over 40 years of experience training cytotechnologists. See id.

at 1325–26.

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19-14294 Opinion of the Court 21

Despite the expert’s extensive experience in the relevant

field, the district court in Adams excluded her negligence opinion

as to the cytotechnologists who had reviewed the plaintiff’s pathol-

ogy slides, concluding that the opinion was unreliable because the

expert did not use a blinded review to evaluate the slides—that is,

she reviewed the plaintiff’s slides with the knowledge that the

plaintiff had been diagnosed with cancer and without randomizing

and mixing in slides from other patients. See id. at 1326, 1330. This

Court reversed, noting that the expert had used her “extensive ex-

perience in the fields of cytopathology and cytotechnology to as-

sess whether [the cytotechnologists’] failure to identify [the plain-

tiff’s cancer] cells fell below the standard of care.” See id. at 1229.

To the extent the expert’s failure to conduct a blinded review ren-

dered her opinion “shaky,” the Court explained, such “shakiness

goes to the weight of her testimony, not its admissibility.” See id.

at 1334. Accordingly, and given the expert’s vast experience with

the exact procedures and technology at issue in the case, this Court

held that the district court “manifestly err[ed]” when it excluded

her opinion as unreliable. Id. at 1328 (quotation marks omitted).

As is evident from the above discussion, this case is entirely

different from Adams. Unlike the expert in Adams, Dr. Sperry has

no special education or training—and no practical experience

whatsoever—in the relevant field of treating or assessing the effi-

cacy of treatments for any hematological condition, including the

ECAST Wilson experienced on the night of his arrest. Because Dr.

Sperry cannot speak personally to those issues, his opinion is based

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22 Opinion of the Court 19-14294

solely on the articles he cites concerning ECAST preventive tech-

niques and best practices for responding to an ECAST. Thus, un-

der the circumstances here, “it was entirely proper—indeed neces-

sary—for the district court to focus on the reliability of th[o]se

sources.” Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1336–41 (11th Cir.

2010) (upholding the district court’s exclusion of expert testimony

where the expert did not conduct any tests or studies himself, and

where the literature upon which the expert based his conclusions

“was insufficient to create a reliable methodology”).

Finally, Plaintiffs argue that any issues regarding the ade-

quacy of the studies underlying Dr. Sperry’s opinion speak to the

weight and not the admissibility of his opinion. We are mindful

that “courts must remain chary not to improperly use [Rule 702’s]

admissibility criteria to supplant a plaintiff's right to a jury trial.”

Moore, 995 F.3d at 850 (“Vigorous cross-examination, presentation

of contrary evidence, and careful instruction on the burden of

proof are the traditional and appropriate means of attacking shaky

but admissible evidence.” (quotation marks omitted)). See also

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,

1341 (11th Cir. 2003) (“[I]t is not the role of the district court to

make ultimate conclusions as to the persuasiveness of the proffered

evidence . . . [or to] supplant the adversary system or the role of the

jury.” (citation and quotation marks omitted)). But neither can a

court abdicate its “gatekeeping role” to ensure that expert testi-

mony is reliable before it is admitted, as required by Daubert and

Rule 702. See McLain v. Metabolife, Int’l, Inc., 401 F.3d 1233, 1238

USCA11 Case: 19-14294 Date Filed: 09/27/2022 Page: 23 of 41

19-14294 Opinion of the Court 23

(11th Cir. 2005) (“A trial court . . . abuses its discretion by failing to

act as a gatekeeper” to ensure reliability of expert testimony). To

discharge its gatekeeping duties in this case, the district court had

to determine whether Dr. Sperry’s opinion about the treatability

and/or survivability of Wilson’s ECAST event was “shaky but ad-

missible” or simply too unreliable to admit. See Adams, 760 F.3d

at 1334. Based on our review of Sperry’s proffered opinion, the

supporting materials cited by Dr. Sperry, and his deposition testi-

mony, we cannot say the district court abused its discretion by con-

cluding the latter. Accordingly, we affirm the district court’s order

excluding Dr. Sperry’s medical causation opinion.

III. Plaintiffs’ § 1983 Claims

A. Qualified Immunity

Plaintiffs’ claims against Defendants in their individual ca-

pacity are governed by the qualified immunity analysis. “Qualified

immunity protects government officials performing discretionary

functions from suits in their individual capacities unless their con-

duct violates clearly established statutory or constitutional rights of

which a reasonable person would have known.” Dalrymple v.

Reno, 334 F.3d 991, 994 (11th Cir. 2003). To be clearly established,

a right must be sufficiently well-established “that every reasonable

official would have understood that what he is doing violates that

right.” Reichle v. Howards, 566 U.S. 658, 664 (2012). In other

words, “existing precedent must have placed the statutory or

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24 Opinion of the Court 19-14294

constitutional question beyond debate” and thus given the official

“fair warning” that his conduct violated the law. Id.

Fair warning is most commonly provided by materially sim-

ilar precedent from the Supreme Court, this Court, or the highest

state court in which the case arose. Terrell v. Smith, 668 F.3d 1244,

1255 (11th Cir. 2012). However, a judicial precedent with identical

facts is not essential for the law to be clearly established. Youmans

v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010). Authoritative judi-

cial decisions may “establish broad principles of law” that are

clearly applicable to the conduct at issue. Griffin Indus., Inc. v. Ir-

vin, 496 F.3d 1189, 1209 (11th Cir. 2007). And very occasionally, it

may be obvious from “explicit statutory or constitutional state-

ments” that conduct is unconstitutional. Id. at 1208–09.

A defendant who asserts qualified immunity has the initial

burden of showing he was acting within the scope of his discretion-

ary authority when he took the allegedly unconstitutional action.

See Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). As-

suming that burden is met, it is up to the plaintiff to show the vio-

lation of a clearly established constitutional right. Id. Plaintiffs do

not dispute that Defendants were acting in the scope of their dis-

cretionary authority when they treated Wilson at the scene. Thus,

to prevail on their § 1983 claims asserted against Defendants Flack

and Porterfield in their individual capacities, Plaintiffs must show

that Defendants’ treatment of Wilson on the night of his arrest vi-

olated a right that was clearly established at the time.

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19-14294 Opinion of the Court 25

B. Deliberate Indifference

Plaintiffs allege that Defendants acted with deliberate indif-

ference to Wilson’s serious medical needs on the night of his arrest,

in violation of his Fourteenth Amendment rights. 4 To establish de-

liberate indifference rising to the level of a constitutional violation,

Plaintiffs first must show that Wilson had an “objectively serious

medical need” meaning a medical need “that has been diagnosed

by a physician as mandating treatment or . . . that is so obvious

even a lay person would easily recognize the necessity for a doc-

tor’s attention.” See Hoffer v. Secretary, Fla. Dep’t of Corr., 973

F.3d 1263, 1270 (11th Cir. 2020) (quotation marks omitted). Then,

Plaintiffs must prove that Defendants “acted with subjective delib-

erate indifference” to Wilson’s need and that Wilson suffered an

injury “caused by” that indifference. See Patel v. Lanier Cnty., Ga.,

969 F.3d 1173, 1188 (11th Cir. 2020) (quotation marks omitted).

The second prong of the analysis requires Plaintiffs to establish

three elements: (1) that Defendants were subjectively aware of the

risk of serious harm to Wilson, (2) that they disregarded the risk,

and (3) that they acted at least recklessly. Id. See also Hoffer, 973

F.3d at 1270, n.2 (noting the tension in this Court’s caselaw

4 Wilson was an arrestee when Defendants treated him, so his deliberate in-

difference claim arises under the Fourteenth Amendment as opposed to the

Eighth Amendment, which would apply to the same claim asserted by a pris-

oner. See Patel v. Lanier Cnty., Ga., 969 F.3d 1173, 1188 (11th Cir. 2020). But

the standard is the same whether the claim arises under the Fourteenth or the

Eighth Amendment. See id.

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26 Opinion of the Court 19-14294

regarding whether the standard is more than “mere” negligence or

“gross” negligence but concluding that the disagreement is a “dis-

tinction without a difference” because the Supreme Court requires

subjective recklessness).

Although it is undisputed that Wilson had an objectively se-

rious medical need on the night of his arrest, Defendants argue they

are entitled to summary judgment on the asserted § 1983 claims

because Plaintiffs cannot show that Defendants were deliberately

indifferent to Wilson’s condition. Defendants also argue that,

without Dr. Sperry’s opinion, Plaintiffs cannot establish a causal

link between Defendants’ alleged treatment failures and any injury

suffered by Wilson, including his death. As discussed more fully

below, Plaintiffs have presented enough evidence to raise a genu-

ine issue of fact as to the essential elements of deliberate indiffer-

ence in this case and, construing the evidence in the light most fa-

vorable to Plaintiffs, the clearly established prong of the qualified

immunity analysis has been satisfied. Nevertheless, we affirm the

district court’s order granting summary judgment on Plaintiffs’

§ 1983 wrongful death claim because there is no evidence in the

record to suggest that Wilson’s death was caused by Defendants’

alleged deliberate indifference. On the other hand, we reverse the

district court’s order granting summary judgment on Plaintiffs’

claim on behalf of Wilson’s estate to recover for his pre-death pain

and suffering because Defendants have not shown that “there is no

genuine dispute [of] material fact and [that they are] entitled to

judgment as a matter of law” as to that claim. See OJ Commerce,

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19-14294 Opinion of the Court 27

LLC v. KidKraft, Inc., 34 F.4th 1232, 1240 (11th Cir. 2022) (quota-

tion marks omitted).

1. Subjective Knowledge of Wilson’s Serious

Medical Need

As indicated above, no liability arises for deliberate indiffer-

ence based on a defendant’s failure to alleviate a serious risk he

should have perceived but did not. See Goebert, 510 F.3d at 1327

(noting the need for “subjective knowledge of the risk of serious

harm”). Rather, a defendant must in fact be subjectively aware of

the risk to the plaintiff. See id. Defendants deny they were subjec-

tively aware of the serious risk to Wilson when they encountered

him on the night of his arrest, and they emphasize that there was

no way they could have known Wilson was experiencing the rare

ECAST that caused his death. According to Defendants, they at-

tributed Wilson’s symptoms—including his trouble breathing and

elevated pulse—to his recent flight from police. The district court

agreed that Plaintiffs had failed to satisfy the subjective knowledge

requirement. According to the court, Defendants did not fully ap-

preciate the risk to Wilson because the officers on the scene sug-

gested that Wilson was faking illness and they did not advise De-

fendants about Wilson’s earlier collapse and his deteriorating con-

dition.

We conclude, however, that there is enough evidence in the

record to raise a question of fact as to whether Defendants were

subjectively aware of a risk of serious harm to Wilson, despite the

incomplete information provided by the officers on the scene and

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28 Opinion of the Court 19-14294

albeit Defendants were not aware of the precise nature of the risk—

that is, death from a rare and poorly understood ECAST. Although

Defendants had incomplete information about Wilson’s exact di-

agnosis and his condition before they arrived, a reasonable jury

could find that the symptoms Wilson presented made it obvious

that his condition was dire. See id. (explaining that subjective

knowledge of a serious risk sufficient to support a deliberate indif-

ference claim “is a question of fact subject to demonstration in the

usual ways, including inference from circumstantial evidence, and

a factfinder may conclude that [a defendant] knew of a substantial

risk from the very fact that the risk was obvious” (quotation marks

omitted)). Construing the evidence in favor of Plaintiffs, Wilson

had a blood oxygen level of 92% and a pulse of 110, a combination

suggestive of a serious respiratory issue necessitating immediate

treatment according to EMS guidelines and Plaintiffs’ paramedic

expert. 5 Porterfield challenged the pulse reading, but he

5 There is conflicting evidence in the record as to Wilson’s oxygen level and

pulse. Porterfield reported that Wilson’s oxygen level was 98% or 99%. Of-

ficer Smith stated in a GBI interview that Wilson’s oxygen level was 96%, but

Smith stated to the paramedic who treated Wilson at the jail that his oxygen

level had been 92%. As to Wilson’s pulse, Defendants recalled that it was be-

tween 50 and 60, but Smith testified that it was 110. There is no objective

record of Wilson’s oxygen level or pulse because Defendants did not create a

log of the readings they obtained. But ZOLL monitor readings would have

been visible to people nearby like Smith, and a jury would be authorized to

believe his testimony as to both.

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19-14294 Opinion of the Court 29

acknowledged in his deposition that if Wilson’s pulse was over 100,

he should have taken additional steps to diagnose and treat him.

In addition to his critical pulse and blood oxygen levels, evi-

dence in the record, when construed in favor of Plaintiffs, indicates

that Wilson was non-responsive and perhaps unconscious when

Defendants encountered him and during the entirety of his medical

evaluation. For example, there is evidence that Wilson’s eyes were

closed when EMS arrived on the scene, and that they remained

closed throughout the EMS assessment. Further, it is undisputed

Wilson was non-responsive to any questions during the assess-

ment. Defendants apparently concluded Wilson was unwilling ra-

ther than unable to respond, but it is not clear how they arrived at

that conclusion. Defendants were advised prior to assessing Wil-

son that he had complained of difficulty breathing, which Porter-

field agreed can cause a loss of oxygen to the brain and inability to

respond. And Defendants were told just before they left the scene

that Wilson was foaming at the mouth, another indicator that his

non-responsiveness was involuntary, such that he needed further

evaluation. See Goebert, 510 F.3d at 1328 (“The problem is that

[the defendant officer] did not believe [the plaintiff’s complaints

about her medical condition], and the reason he did not believe her

smacks of deliberate indifference.”).

2. Reckless Disregard of Wilson’s Condition

Likewise, there is evidence that raises a question of fact as to

the second and third prongs of Plaintiffs’ deliberate indifference

claim—that is, that Defendants disregarded the risk to Wilson and

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30 Opinion of the Court 19-14294

that they acted recklessly in doing so. Again, there is some tension

in this Court’s precedent as to the standard of conduct that applies

to a deliberate indifference claim. See Hoffer, 973 F.3d at 1270, n.2.

Compare Melton v. Abson, 841 F.3d 1207, 1223 n.2 (11th Cir. 2016)

(describing the standard as more than “mere negligence”), abro-

gated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S.

544 (2007) and Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158

(11th Cir. 2010) (describing the standard as more than “gross negli-

gence”). Certainly, the fact that a defendant was “negligent in di-

agnosing or treating a medical condition” does not give rise to a

constitutional claim for deliberate indifference. Bingham v.

Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (quotation marks

omitted). See also Kingsley v. Hendrickson, 576 U.S. 389, 396

(2015) (“liability for negligently inflicted harm is categorically be-

neath the threshold of constitutional due process”). At the same

time, the standard does not require a defendant to act with the

“purpose of causing harm or with knowledge that harm will re-

sult.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). This Court

recently indicated that the correct standard is recklessness, and that

is the standard we apply here. See Hoffer, 973 F.3d at 1270, n.2

(analyzing Farmer and concluding that “no matter how serious the

negligence, conduct that can’t fairly be characterized as reckless

won’t meet the [governing] standard”).

The district court concluded that, at the worst, Defendants

were negligent in their treatment of Wilson, but reasonable minds

could draw a different conclusion from this record. Plaintiffs cite

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19-14294 Opinion of the Court 31

several serious lapses by Defendants in their treatment of Wilson,

including their: (1) failure to respond in any way to Wilson’s low

blood oxygen level, elevated pulse, apparently altered mental state,

and his condition of foaming at the mouth, (2) visually assessing

Wilson’s breathing rather than using a stethoscope despite Wil-

son’s complaint of difficulty breathing and apparent unconscious-

ness, (3) failure to gather adequate information about Wilson’s

condition prior to treating him, and (4) leaving the scene without

resolving Wilson’s complaint that he was having trouble breathing.

Plaintiffs’ paramedic expert testified that these lapses amounted to

a substantial deviation from the standard of care. That testimony

could support a finding that Defendants acted recklessly and with

disregard to a serious and apparent medical risk to Wilson under

the circumstances. See Patel, 969 F.3d at 1189 (observing that

“even to a layperson, unconsciousness alone should serve as a

strong indicator of the need for immediate medical attention”).

3. Clearly Established Law

Finally, and assuming Defendants recklessly disregarded a

serious medical risk to Wilson that was evident and about which

they were subjectively aware, the clearly established prong of the

qualified immunity analysis has been satisfied. This prong of the

analysis ordinarily requires a plaintiff to point to factually similar

case law that would have made it clear to a defendant that his con-

duct violated the plaintiff’s rights. See Reichle, 566 U.S. at 664 (em-

phasizing the role of “existing precedent” to ensure that “every rea-

sonable officer would have understood that what he is doing

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32 Opinion of the Court 19-14294

violates” the law). But Plaintiffs’ deliberate indifference claim in-

cludes as essential elements Defendants’ deliberate disregard of a

serious medical risk that Defendants subjectively knew to exist.

This Court held in Patel that a plaintiff who establishes those ele-

ments generally will overcome qualified immunity, explaining:

Although we haven’t identified any controlling case

with closely analogous facts, we think the novel facts

of the situation are obviously governed by a broader,

clearly established principle. The knowledge of the

need for medical care and intentional refusal to pro-

vide that care has consistently been held to surpass

negligence and constitute deliberate indifference.

See Patel, 969 F.3d at 1190 (quotation marks and citation omitted).

Per Patel and our discussion above, the clearly established prong of

the analysis is satisfied here because, construing the facts and evi-

dence in favor of Plaintiffs, Defendants: (1) knew Wilson was suf-

fering from a serious and urgent medical crisis, albeit they did not

know the exact nature of the crisis, (2) knew Wilson needed addi-

tional assessment and medical care, and (3) recklessly failed to pro-

vide the assessment and care that were indicated under the circum-

stances.

4. Causation and Damages

Nevertheless, to recover for an injury allegedly arising from

Defendants’ deliberate indifference, Plaintiffs must show that the

injury was “caused by Defendants’ wrongful conduct.” Id. at 1188

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19-14294 Opinion of the Court 33

(quotation marks omitted). See also Goebert, 510 F.3d at 1327

(“The final requirement for a deliberate indifference claim is that a

defendant have a causal connection to the constitutional harm.”).

Without Dr. Sperry’s testimony there is no evidence that Wilson’s

death was caused by Defendants. Indeed, Plaintiffs concede that

their claim to recover for Wilson’s death cannot survive the exclu-

sion of Dr. Sperry’s testimony, because that claim requires proof

that some conduct by Defendants resulted in Wilson’s death. See

Patel, 969 F.3d at 1188 (noting that the plaintiff’s claimed injury

must have been “caused by” the defendant’s wrongful conduct).

Dr. Sperry’s testimony is the only evidence Plaintiffs proffer to es-

tablish the required causal link between Defendants’ deliberate in-

difference and Wilson’s death; and that testimony was properly ex-

cluded.

Accordingly, and as Plaintiffs correctly acknowledge in their

appellate briefing, there is no evidence that Defendants caused the

death of Wilson for which Plaintiffs seeks damages. That being so,

we affirm the district court’s summary judgment order as to Plain-

tiffs’ § 1983 wrongful death claim.

The situation is somewhat different, however, as to the

claim asserted by Wilson’s estate for pre-death pain and suffering

Wilson allegedly suffered as a result of Defendants’ inaction.6

6 Georgia law controls whether this claim survives Wilson’s death. See Estate

of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041, 1043 (11th Cir.

2011) (observing that the state survivorship laws of the forum in which an ac-

tion is filed determine whether a § 1983 claim survives the death of the injured

USCA11 Case: 19-14294 Date Filed: 09/27/2022 Page: 34 of 41

34 Opinion of the Court 19-14294

Specifically, in addition to alleging that Defendants had caused Wil-

son’s death, Plaintiffs alleged in their complaint that Defendants’

conduct caused Wilson “pain and suffering while he was still alive.”

Yet, although Defendants sought summary judgment as to

the wrongful death claim, their summary judgment motion never

mentioned Plaintiffs’ claim for Wilson’s pre-death pain and suffer-

ing. Indeed, the causation argument on which their motion was

based focused entirely on Plaintiffs’ wrongful death claim. Thus,

Defendants’ summary judgment motion, on its face, failed to show

that Defendants were “entitled to judgment as a matter of law” on

the Estate’s claim for the pain and suffering Wilson allegedly expe-

rienced as a result of Defendants’ deliberate indifference. See OJ

Commerce, 34 F.4th at 1240; see also Edmondson v. Velvet Life-

style, LLC, 43 F.4th 1153, 1160 (11th Cir. 2022) (“If the moving

party fails to show that the facts underlying all the relevant legal

questions raised by the pleadings or otherwise are not in dispute,

then summary judgment should be denied—even if the non-mov-

ing party has introduced no evidence whatsoever.” (quotation

marks omitted)).

Indeed, in their summary judgment response brief, Plaintiffs

pointed out that even if the district court decided to grant summary

party). Under Georgia law, Wilson’s claim for pre-death pain and suffering

survives his death and can be recovered by his estate. See O.C.G.A. § 9-2-41

(“No action . . . or cause of action for the recovery of damages for . . . injury

to the person . . . [shall] abate by the death of either party.”).

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19-14294 Opinion of the Court 35

judgment as to the death claim—based on Plaintiffs’ failure to show

that Defendants caused Wilson’s death—that decision did not elim-

inate Plaintiffs’ claim for pre-death pain and suffering, which was

an entirely separate claim. In their summary judgment reply brief,

Defendants responded that Wilson could not have suffered any

pain because Wilson was unconscious during his interaction with

Defendants and therefore would have been unable to experience

pain. In support, Defendants noted that in the opening sentence of

Plaintiffs’ response to the summary judgment motion, Plaintiffs

stated that Defendants had “left [Wilson] unconscious in the back

of [the police officers’] patrol car.

Unfortunately, the district court’s order granting summary

judgment never sorted this matter out, but instead granted sum-

mary judgment to Defendants based on the court’s conclusion that

Defendants’ conduct did not rise to the level of deliberate indiffer-

ence. Moreover, there clearly appears to be a “genuine dispute [of]

material fact” as to one important part of the pain-and-suffering

question: specifically, whether Wilson was conscious during any

part of Defendants’ interaction with him or thereafter. That is, pre-

sumably a person cannot, in a typical situation, suffer or experience

pain if that person is unconscious. And given “Plaintiffs’ insinua-

tion Wilson was unconscious during Defendants’ assessment,” De-

fendants implicitly argue that there is no evidence supporting an

inference that Wilson was conscious—and thus would have been

able to suffer pain—during the time Defendants’ might have pro-

vided him treatment. The problem with Defendants’ argument is

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36 Opinion of the Court 19-14294

that Defendants themselves obviously believed Wilson was con-

scious—and perhaps faking his symptoms—else they otherwise

would have transported him to the hospital. Thus, the question of

Wilson’s consciousness cannot be decided as a matter of law. As

Defendants note, it is true that even if one could conclude that Wil-

son was conscious during the operative time, Plaintiffs would

nonetheless be unable to justify a claim for compensatory damages

based on pain and suffering without also proving that Defendants’

action, or inaction, caused that suffering. But this matter not being

adequately litigated at the district court level, we are disinclined to

make the first call on the question. Instead, the district court will

be empowered to determine that question upon a timely motion

for a judgment as a matter of law by Defendants at the close of

Plaintiffs’ case, pursuant to Federal Rule of Civil Procedure 50. Ac-

cordingly, we reverse the district court’s order granting summary

judgment as to Plaintiffs § 1983 claim asserted on behalf of Wilson’s

estate for pre-death pain and suffering allegedly caused by Defend-

ants’ inaction.

IV. State Claims

In addition to their § 1983 claims, Plaintiffs assert a state

claim against Defendants for “breach of ministerial duty.” That

claim is essentially a state negligence claim based on Defendants’

breach of the applicable standard of care in treating Wilson. Plain-

tiffs describe it as a claim for breach of ministerial duty because

Georgia law provides immunity to officials exercising their discre-

tionary, as opposed to their ministerial, duties. See Ga. Const. art.

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19-14294 Opinion of the Court 37

I, § 2, ¶ IX(d) (providing state officers and employees with official

immunity from suit and liability “for the performance or nonper-

formance of their official functions”). Specifically, under an excep-

tion to official immunity as applied in Georgia law, state officials

“may be subject to suit and may be liable for injuries and damages

caused by the negligent performance of, or negligent failure to per-

form, their ministerial functions.” Id.

Putting the immunity issue aside for a moment, damages

and causation are essential elements of a negligence claim under

Georgia law. See City of Richmond Hill v. Maia, 301 Ga. 257, 258

(Ga. 2017) (“It is well established that to recover for injuries caused

by another’s negligence, a plaintiff must show four elements: a

duty, a breach of that duty, causation, and damages.” (quotation

marks omitted)). To that end, a plaintiff seeking to recover on a

negligence theory under Georgia law “must prove that the defend-

ant’s negligence was both the cause in fact and the proximate

cause” of his claimed injury. Id. (quotation marks omitted). Given

the exclusion of Dr. Sperry’s testimony, and pursuant to the discus-

sion above, Plaintiffs cannot show that Wilson’s death was caused

by any action—or inaction—by Defendants. Accordingly, sum-

mary judgment is warranted on Plaintiffs’ state negligence claim

asserted on their own behalf to recover for Wilson’s wrongful

death, and we affirm the district court’s order granting summary

judgment as to the wrongful death claim on causation grounds.

As discussed above, Defendants have not shown that they

are entitled to summary judgment as to their claim for Wilson’s

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38 Opinion of the Court 19-14294

pre-death pain and suffering on causation grounds. But it is clear

that Defendants’ treatment of Wilson—which is the basis for the

pain and suffering claim—does not qualify as a “ministerial act” for

which liability can arise under Georgia law if performed negli-

gently. See Grammens v. Dollar, 287 Ga. 618, 619 (Ga. 2010) (dis-

cussing the difference between ministerial and discretionary acts

for purposes of official immunity). As the Georgia Supreme Court

explained in Grammens:

A ministerial act is commonly one that is simple, ab-

solute, and definite, arising under conditions admit-

ted or proved to exist, and requiring merely the exe-

cution of a specific duty. A discretionary act, how-

ever, calls for the exercise of personal deliberation

and judgment, which in turn entails examining the

facts, reaching reasoned conclusions, and acting on

them in a way not specifically directed.

Id. See also Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1309 (11th Cir.

2009) (citing Georgia law for the rule that “[a] ministerial act is

commonly one that is simple, absolute, and definite, arising under

conditions admitted or proved to exist, and requiring merely the

execution of a specific duty” (quotation marks omitted)). Applying

this definition, Defendants’ decisions as to the appropriate care of

Wilson under the circumstances were discretionary rather than

ministerial acts. See Harry v. Glynn County, 269 Ga. 503, 505 (Ga.

1998) (holding that a paramedic’s response to an emergency aid

call, unsuccessful treatment of a patient there, and transport of the

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19-14294 Opinion of the Court 39

patient to the hospital “were clearly discretionary”); Polk County

v. Ellington, 306 Ga. App. 193, 201 (Ga. App. 2010) (“[R]esponding

to an emergency is not a relatively simple, specific duty. Rather, it

is a discretionary task, requiring the exercise of personal judgment

to determine how best to proceed.” (internal citation and quota-

tions marks omitted and alterations adopted)); Schulze v. DeKalb

County, 230 Ga. App. 305, 308 (Ga. App. 1998) (granting official

immunity to paramedics, and explaining that they “exercised per-

sonal deliberation and judgment in delaying transportation of [the

patient] to the hospital for several minutes”).

It is undisputed that Defendants conducted a medical assess-

ment of Wilson when they were called to the scene of his arrest.

Specifically, they felt Wilson’s skin, visually assessed his breathing

by watching his chest movements, and used a ZOLL monitor to

determine his pulse and oxygen levels. Based on their assessment,

Defendants determined that no further assessment or treatment of

Wilson was necessary. As discussed above, a jury might reasonably

infer that this determination was so reckless that it amounted to a

deliberate indifference to Wilson’s obvious medical needs, particu-

larly given the additional information Defendants received at the

end of their assessment that Wilson was foaming at the mouth. But

it cannot be disputed that the determination of “what medical

treatment to provide” Wilson under the circumstances required

the exercise of clinical judgment on the part of Defendants and was

thus “an act of discretion subject to official immunity” under Geor-

gia law. Graham v. Cobb County, 316 Ga. App. 738, 742–43 (Ga.

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40 Opinion of the Court 19-14294

App. 2012). See also Barnett v. Caldwell, 302 Ga. 845, 848 (Ga.

2018) (noting that an act is ministerial only when “directives are so

clear, definite, and certain as to merely require the execution of a

specific, simple, absolute, and definite duty, task, or action in a

specified situation without any exercise of discretion”). Accord-

ingly, Defendants are entitled to official immunity as to Plaintiffs’

state negligence claim asserted on behalf of Wilson’s estate to re-

cover for his pre-death pain and suffering.

In short, Plaintiffs cannot prevail on their state negligence

claim seeking recovery for damages arising from Wilson’s death

because, given Dr. Sperry’s exclusion, there is no evidence that De-

fendants’ conduct caused Wilson’s death. 7 As to the state negli-

gence claim asserted on behalf of Wilson’s estate to recover for his

pre-death pain and suffering, that claim is precluded by official im-

munity under Georgia law. For these reasons, we affirm the dis-

trict court’s order granting summary judgment on Plaintiffs’ state

negligence claims.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

order granting summary judgment on Plaintiffs’ § 1983 wrongful

death and state negligence claims. We REVERSE the district

court’s order granting summary judgment on Plaintiff’s § 1983

7 Of course, even if Defendants’ conduct had caused Wilson’s death, the

wrongful death claim would have been precluded by the Georgia official im-

munity doctrine, just as the pre-death claim is precluded.

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19-14294 Opinion of the Court 41

claim asserted on behalf of Wilson’s estate to recover for any part

of his pre-death pain and suffering that can be attributed to Defend-

ants’ deliberate indifference. As to that claim, we REMAND this

case to the district court for further proceedings consistent with

this opinion.