Day v. Delong

• Decision Date: 09 January 2019
• Docket Number: Case No. 3:16-cv-437
• Citation: 358 F.Supp.3d 687
• Parties: Jeffery DAY, Plaintiff, v. Kim DELONG, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

358 F.Supp.3d 687

Jeffery DAY, Plaintiff,

v.Kim DELONG, et al., Defendants.

Case No. 3:16-cv-437

United States District Court, S.D. Ohio, Western Division, at Dayton.

Signed January 9, 2019

Dwight Dean Brannon, Douglas Dustin Brannon, Matthew Schultz, Brannon & Associates, Michael L. Wright, Wright & Schulte, LLC, Dayton, OH, for Plaintiff.

Dawn M. Frick, Jeffrey Charles Turner, Katherine L. Epling, Surdyk, Dowd & Turner Co., L.P.A., Alex Joseph Hale, Joseph D. Saks, Montgomery County Prosecutor's Office, John B. Welch, Arnold Todaro & Welch, Dayton, OH, Robert Joseph Byrne, Ohio Attorney General, Columbus, OH, for Defendants.

ENTRY AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT BY NAPHCARE INC. AND JACK SAUNDERS, ECF 89; GRANTING MOTION FOR SUMMARY JUDGMENT BY CITY OF TROTWOOD, OHIO, KIM DELONG AND OFFICER KEVIN WAGNER, ECF 92; GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT BY MONTGOMERY COUNTY BOARD OF COMMISSIONERS AND PHIL PLUMMER, ECF 93; DENYING MOTION FOR SUMMARY JUDGMENT BY JEFFREY DAY, ECF 91, DENYING MOTION TO STRIKE CERTAIN PORTIONS OF TESTIMONY OF PLAINTIFF'S EXPERT WITNESS JONATHAN PALEY, M.D., BY NAPHCARE INC. AND JACK SAUNDERS ECF 86; AND GRANTING MOTION TO AMEND / CORRECT DEPOSITION TRANSCRIPT BY NAPHCARE INC. AND JACK SAUNDERS ECF 87. SUMMARY JUDGMENT IS AWARDED TO CITY OF TROTWOOD, OHIO, KIM DELONG, OFFICER KEVIN WAGNER, AND PHIL PLUMMER. JEFFERY DAY, NAPHCARE INC. AND JACK SAUNDERS ARE TO PREPARE FOR TRIAL ON DAY'S CLAIMS FOR MEDICAL NEGLIGENCE. DAY, NAPHCARE INC., SAUNDERS AND MONTGOMERY COUNTY ARE TO PREPARE FOR TRIAL ON DAY'S CLAIM FOR DELIBERATE INDIFFERENCE.

THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

Pending before the Court are motions from all parties, primarily seeking summary judgment. They are: Motion for Summary Judgment by Defendant NaphCare Inc. and Defendant Jack Saunders, ECF 89, Motion for Summary Judgment by Defendant City of Trotwood, Ohio, Defendant Kim DeLong, and Defendant Officer Kevin Wagner, ECF 92, Motion for Summary Judgment by Defendant Montgomery County Board of Commissioners and Defendant Phil Plummer, ECF 93, Motion for Summary Judgment by Plaintiff Jeffrey Day, ECF 91, Motion to Strike Certain Portions of Testimony of Plaintiff's Expert Witness Jonathan Paley, M.D., by Defendant NaphCare Inc., and Defendant Jack Saunders, ECF 86, and Motion to Amend/Correct Deposition Transcript by Defendant NaphCare Inc. and Defendant Jack Saunders. ECF 87.

Background

On November 26, 2015, Thanksgiving evening, Plaintiff Jeffrey Day was in a motor vehicle accident. Day was a passenger in a car that was involved in a collision on Wolf Road in Trotwood at approximately 11:30 p.m. (Deposition of Jeffrey Day, ECF 70, PageID 437) As a result of the collision, Day suffered a fractured right acetabulum, the part of his pelvis that forms the socket of his hip. (Deposition of Jonathan J. Paley, M.D., ECF 82, PageID 1598) At the time of the collision, Day was intoxicated, and after the collision was in tremendous pain and shock as a result of the injury. (Depo. Day, ECF 70, PageID 437-38)

Defendant Sgt. Kim DeLong responded to the accident. She claims in her police report that Day provided false information to her, which delayed her investigation of the collision. (Trial Transcript at 26-27). DeLong charged Day with Obstructing Official Business. After Day signed a waiver of medical treatment, (Deposition of Jameson Kordik, at 39-40), she placed him under arrest and in the back of a police cruiser. (Trial Transcript at 36-37) Day was taken to the Montgomery County Jail by Defendant Officer Kevin Wagner where he was held until December 1, 2015. (Trial Transcript at 70)

Upon arriving at the Montgomery County Jail, Day was unable to walk from the cruiser into the booking area unassisted. (Depo. Day, ECF 70, PageID 450) The video of this process shows Day unable to walk properly, unable to stand on his right leg, and in pain. (Video 22, at 4:10-5:30; Video 1, at 0:00-2:35; Video 13, at 0:00-2:30; Video 25, at 0:25-2:05; Video 29, at 1:00-2:15) Even after someone brought a wheelchair for Day, he leaned to his left to avoid putting pressure on his right hip. (Video 27, at 0:00-0:12; Video 28, at 0:00-2:15.)

Defendant Jack Saunders, an EMT and an employee at NaphCare, Inc., was working that night performing initial medical screening/intake for inmates. (Affidavit of Jack Saunders, ¶ 4, attached hereto as Exhibit A.) While the parties do not describe NaphCare's role at the jail, the Court presumes it continues to be true that

NaphCare is a corporation that is organized under the laws of Alabama and licensed in the state of Ohio and several other states. Id. at ¶ 14, 15. One of NaphCare's primary lines of business is the provision of medical care to the residents of correctional facilities throughout the country. That is, instead of maintaining its own staff of doctors, nurses, and other health professionals, jails hire NaphCare as an independent contractor to undertake the day-to-day responsibilities of providing their inmates with medical care. The Montgomery County Jail has such an arrangement with NaphCare[.]

Walters v. NaphCare, Inc. , No. 3:09-CV-136, 2010 WL 1390383, at *1 (S.D. Ohio Mar. 31, 2010). NaphCare had a policy not to send an inmate to the hospital except for "life threatening" injuries. (Depo. Saunders, ECF 79, PageID 1339)

Saunders performed his intake screening of Day at 5:03 a.m. (Saunders Affidavit, ¶ 7.) As an EMT, Saunders does not make medical diagnoses or provide specific medical treatment; he obtains the initial intake information for medical screening and may arrange for follow up with a care provider, if necessary. (Saunders Affidavit, ¶ 5.) Saunders asked Day questions, took his vital signs, which were stable, and completed a screening/intake assessment. (ECF 79-8, PageID 1436-51; ECF 79-9, PageID 1452; Saunders Affidavit, ¶¶ 6, 17.) Day told Saunders about the pain in his leg. (Depo. Day, ECF 70, PageID 453) Day told Saunders that he had been in a motor vehicle accident and that he felt like he had broken something in his leg. (Deposition of Jack Saunders, ECF79, PageID 3170; ECF 79-7, PageID 1435) Saunders said that he would ask a nurse to examine Day, and listed it as a high priority request, but no nurse ever saw him. (Depo. Day, ECF 70, PageID 453; Depo. Saunders, ECF79, PageID 1354-55)¹ When he was being put into the jail uniform, since he was unable to change clothes himself, he repeatedly told the jail staff that his leg felt like it was broken, and that he was in horrible pain. (Depo. Day, ECF 70, PageID 455) He received no response to his pleas for help. (Depo. Day, ECF 70, PageID 457)

At the time, Saunders noted:

[S]tated was in [a motor vehicle accident with a chief complaint] of right sided hip pain. [S]tated unable to place[ ] weight on limb but walked in without assistance. [W]as given wheelchair but now is favoring limb. [S]tated shooting pain to toes but has range of motion and PMS (pulse, motor, sensory). [N]urses made contact with inmate. [A]lso claiming inner thigh pain "feels like I snapped my shit."

(ECF 79-8, PageID 1438.) Because of Day's complaints, Saunders placed Day on the sick call list to be seen by a nurse practitioner or other care provider. (Saunders Affidavit, ¶ 12.) Saunders also marked Day as a priority for follow up. (ECF 79-7, PageID 1435.) Saunders put Day on the advanced list to be seen as a priority because he knew that would bump Day to the top of the screening so that whoever was coming in would see him in the next day or two in order to determine if he needed any further care, such as x-rays, medications, etc. (Saunders Affidavit, ¶ 13; ECF 79, PageID 1355.) Saunders anticipated Day would be seen by a nurse practitioner or other care provider within a day or two or within 24 hours per the non-emergent health care policy at NaphCare. (Saunders Affidavit, ¶ 14; ECF 79, PageID 1395-96.) Saunders completed his intake screening at approximately 5:26 a.m. He had no further involvement with Day as he was taken to housing. (Saunders Affidavit, ¶ 15.)

As part of the screening process, Saunders educated Day how to access or request medical care. (Saunders Affidavit, ¶ 18; ECF 79-8, PageID 1451.) Saunders educated Day on how to access care by completing a health care request form or medical "kite" if necessary. The next Day, after not receiving any treatment after being booked in, he stood in line where medical staff was handing out medication. When his turn came, Day explained that he was not in line to receive medication, but to tell the medical staff that he needed medical care. (Depo. Day, ECF 70, PageID 457-458) The medical staff member responded by saying that Day could be in the jail for up to seventy-two hours without jail personnel having to provide him with any medical treatment. (Depo. Day, ECF 70, PageID 458-459) Day tried the same thing the next day. He stood in the medication line and once again told the medical staff member that he needed medical care, and was in horrible pain. The staff member responded that he could not give Day anything for his pain. (Depo. Day, ECF 70, PageID 459) Eventually, a fellow inmate suggested that Day submit what is known as a "kite," written request for medical care. (Depo. Day, ECF 70, PageID 460) Day never received any response to the written request, nor was it logged into the NaphCare system for addressing kites. (Depo. Day, ECF 70, PageID 460-462). In discovery, Day produced a jail request form that was not a "kite," completed by Day on November 28, 2015. (ECF 77-3, PageID 1126.)

After five days of incarceration, Day was released. (Depo. Day, ECF 70, PageID 463) He went to Miami Valley Hospital, where he was treated for his broken hip. (Depo. Day, ECF 70, PageID 464) Day's condition required immediate surgery to correctly place the broken bone so that it would heal properly. (Depo. Paley, ECF 82, PageID 1549-1550) Because of the delay in treatment, Day suffered a loss of chance...