Dukes v. Georgia, Civ.A. 1:03-CV-0406J.
| Decision Date | 30 March 2006 |
| Docket Number | No. Civ.A. 1:03-CV-0406J.,Civ.A. 1:03-CV-0406J. |
| Citation | 428 F.Supp.2d 1298 |
| Parties | Tommy DUKES, Plaintiff, v. State of GEORGIA, et al., Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Laurene C. Cuvillier, Ralph Goldberg, Attorney, Ralph S. Goldberg, Office of Ralph S. Goldberg, Decatur, GA, Thomas E. Maddox, Jr., Office of Thomas E. Maddox, Jr., Orange Park, FL, for Plaintiff.
Aaron B. Mason, State of Georgia Law Department, John C. Jones, Kathleen Mary Pacious, Nicholas G. Dumich, Thurbert E. Baker, Office of State Attorney General, S.W. Atlanta, GA, Charles Edgar Hoffecker, Christopher D. Balch, Elizabeth A. Hanlon, Swift Currie McGhee & Hiers, N.E. Atlanta, GA, Benjamin David Ladner, Beth Wendy Kanik, John E. Hall, Jr., Hall Booth Smith & Slover, Claire C. Murray, John Melton Hudgins, IV, Patrick B. Moore, Scott P. Kerew, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta, GA, for Defendants.
This matter is before the court on the motion of Defendants Coweta County, Mike Yeager, Major Blake Adcock, and Jennie Adcock for summary judgment [143] and their motion to exclude the expert testimony of Dr. Robert Greifinger pursuant to Federal Rule of Evidence 702[146]; the motion of Defendant State of Georgia for summary judgment [148]; the motion of Defendants Integrated Regional Laboratories, E.C.H.A. Peachtree, L.L.C., and E.C.H.A., L.L.C., for leave to file excess pages [142], their motion for summary judgment [150], and their final motion to exclude testimony of Robert Greifinger, M.D., and Michael McGinnis, Ph.D. [151]; the motion in limine of Defendants Miriam J. Burnett and MJB Health Services, Inc., to exclude the testimony of Robert Greifinger, M.D. [153], and their motion for summary judgment [154], their motion to compel payment of expert deposition fees pursuant to Federal Rule of Civil Procedure 26, Federal Rule 37 and 28 U.S.C. § 1927[219], their motion to strike, their motion to compel payment of expert deposition fees pursuant to Federal Rule of Civil Procedure 26, Federal Rule 37 and 28 U.S.C. § 1927[220], and their motion to compel payment of expert deposition fees pursuant to Federal Rule of Civil Procedure 26, Federal Rule of Civil Procedure 37 and 28 U.S.C. § 1927[221]; and Plaintiff's motion to bring additional authority [188], his motion for oral argument [189], and his motion to strike [187] reply to response to motion, argument I[190].1
On February 12, 2003, Tommy Dukes (hereinafter "Plaintiff') filed suit against Defendants, State of Georgia (hereinafter "Defendant Georgia"), Coweta County (hereinafter "Defendant Coweta"), Integrated Regional Laboratories (hereinafter "Defendant IRL"); E.C.H.A. Peachtree, L.L.C., and E.C.H.A., L.L.C. (hereinafter collectively "Defendant Emory"), Sheriff Mike Yeager (hereinafter "Defendant Yeager"), Major Blake Adcock (hereinafter "Defendant Blake Adcock"), Nurse Jennie Adcock (hereinafter "Defendant Jennie Adcock"), Dr. Miriam J. Burnett and Dr. Miriam J. Burnett, P.C. (hereinafter together as "Defendant Burnett"), and Sgt. Bobby Stozier. Later, on April 28, 2003, Plaintiff amended his complaint to substitute MJB Health Services for Defendant Dr. Miriam J. Burnett, P.C. Plaintiff brought claims against Defendant Stozier for unreasonable seizure and false imprisonment. On August 31, 2004, the court denied Plaintiff's motion for summary judgment and granted Defendant Strozier's motion for summary judgment. Pursuant to that order Defendant Strozier was dismissed as a defendant in this action. At the close of discovery, Defendants filed the instant motions for summary judgment and motions to exclude the expert testimony of Dr. Robert Greifinger and Dr. Michael McGinnis.
In setting forth the facts, this court resolves all issues of material fact in favor of the plaintiff, and then, under that version of the facts, determines the legal question of whether various defendants are entitled to judgment as a matter of law. McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir.2004) (citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir.2003)).
Plaintiff was arrested by City of Newnan police on February 21, 2001, and booked into the Coweta County Jail. At the time of his incarceration, Plaintiff was HIV positive; he had been HIV positive for approximately six years. Upon his incarceration Plaintiff was asked a series of medical questions as part of the booking process in order to identify any existing medical needs. At that time he did not inform jail personnel that he was HIV positive.
On February 22, 2001, Plaintiff completed a request for medical services complaining that he had "the flu real bad," that he could not breathe, and that he had a "really bad toothache." The next day he was seen by Defendant Jennie Adcock, the head nurse and infirmary supervisor. He had a temperature of 102.5 degrees, dry scaly flushed skin, yellow drainage from his nose, a dry cough, and a red throat. Defendant Jennie Adcock called Defendant Burnett, the jail physician, who prescribed Bactrim (an antibiotic), Robitussin, Tylenol, and Chlor-Trimeton (an antihistamine and decongestant). Plaintiff took this medication from February 23 to February 27. On February 27, the medication was discontinued due to an "allergic reaction."
On March 8, Defendant Burnett was at the jail on one of her regular clinic days. It was Defendant Burnett's custom to be at the jail for four hours one day a week. At all other times she was on call and able to be reached by jail personnel. Defendant Jennie Adcock saw Plaintiff on March 8 and reported to Defendant Burnett that Plaintiff's temperature was 99.2 degrees and that he still had a non-productive cough. Without examining Plaintiff, Defendant Burnett prescribed a different antibiotic, Amoxil.
On March 18, Plaintiff prepared a request for medical services complaining of "Himrods" [hemorrhoids] and that he could not use the bathroom. He was scheduled to see Defendant Burnett on her next clinical day, March 22. On March 22, Defendant Burnett personally examined Plaintiff for the first time. Defendant Burnett noted that Plaintiff had small patches of "macular" rash on his arms. As a result of this visit she noted "cold symptoms resolving." She prescribed Anusol for the hemorrhoids.
On April 15, Plaintiff prepared a request for medical services stating, Defendant Jennie Adcock scheduled him to see Dr. Burnett. Four days later, on April 19, Plaintiff was examined by Defendant Burnett. On April 19, Plaintiff had a fever of 102.9, a rapid pulse, a slightly yellow productive cough (which had started on April 12). Defendant Burnett infused Plaintiff with one liter of I.V. fluids, prescribed Biaxin (an antibiotic) and Tylenol, and ordered a recheck on the following Tuesday, April 24. Further, Defendant Burnett ordered Plaintiff to be sent to the hospital for a chest x-ray and lab work. The x-ray taken on April 19 indicated pneumonia, and the lab work revealed anemia. Plaintiff's symptoms associated with this pneumonia abated within forty-eight hours of his being placed on antibiotics. Plaintiff Ex. 30. Defendant Burnett planned to have another set of x-rays taken in thirty days, the time after a patient starts taking antibiotics that, in her medical opinion, it could take for an x-ray to show clear lungs.
On April 26, a nurse at the jail, Nurse Adams, asked Plaintiff whether he had HIV. Plaintiff admitted that he had been diagnosed as HIV positive in 1995. The same day the information reached Dr. Burnett. Dr. Burnett immediately contacted Positive Response, an organization that evaluates and treats HIV positive patients, and scheduled Plaintiff to have a HIV evaluation on May 30, the first available opening. Defendant Burnett also examined Plaintiff and found that the symptoms of pneumonia had cleared.
On May 4, Plaintiff complained of headaches, lack of appetite, high blood pressure, and an oral thrush, a fungal infection of the mouth and gastrointestinal tract. At this time, Defendant Burnett prescribed a specialized diet and Zantac for the lack of appetite and Diflucan for the oral thrush. She also asked the jail nurses to inquire whether Plaintiff could be seen by Positive Response on an earlier date. They did so, but Defendant Burnett was informed that no earlier appointment was available.
On May 5, Plaintiff's condition worsened. On May 6, Plaintiff had a fever of 102.9 and Defendant Burnett immediately sent Plaintiff to the emergency room. Plaintiff received a chest x-ray. The hospital radiologist noted improvement in the lung infiltrate with "somewhat of a cavitated appearance" and suggested a continued follow-up examination. The same day, Dr. Morgan, the emergency room physician who had examined Plaintiff, noted that Plaintiff had a continued, non-productive cough and a scaly erythematous rash on his face. He noted also that Plaintiff's xray showed "persistent scarring or infiltrate in the left upper lobe" of the lung. In the section of his notes labeled "Plan," Dr. Morgan stated:
The patient was rehydrated with one liter of normal saline in the Department. He will receive [an antibiotic] in the Department. Discussed with the jail nurse. She will arrange a follow up with the jail physician. They will consider a follow up with a pulmonologist. He has an appointment with an HIV clinic in two weeks. We will continue Diflucan [for oral thrush]. Antibiotic selection by jail physician tomorrow.
On May 10, Defendant Burnett examined Plaintiff. She noted that he "feels much better" and his oxygen saturation was good. She checked the x-ray report from the hospital emergency room and...
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