Ford-Sholebo v. United States

• Decision Date: 03 September 2013
• Docket Number: No. 09 C 2287.,09 C 2287.
• Citation: 980 F.Supp.2d 917
• Parties: Dominique FORD–SHOLEBO, individually and as administrator of the estate of Habib Solebo, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

980 F.Supp.2d 917

Dominique FORD–SHOLEBO, individually and as administrator of the estate of Habib Solebo, Plaintiff,

v.The UNITED STATES of America, Defendant.

No. 09 C 2287.

United States District Court,

N.D. Illinois,

Eastern Division.

Sept. 3, 2013.

Cindy Gale Fluxgold, Lorenzo Valladolid, Michael James Baron, Scott G. Goldstein, Goldstein, Fluxgold & Baron, P.C., Chicago, IL, for Plaintiff.

Jonathan C. Haile, United States Attorney's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, Chief Judge.

Plaintiff Dominique Ford–Sholebo, individually and as administrator of the estate of her deceased husband, Habib Solebo (“Solebo”), brings this wrongful death action against the United States pursuant to the Federal Tort Claims Act (the “Act” or “FTCA”), 28 U.S.C. §§ 1346, 2671 et seq. (R. 101, Fifth Am. Compl. at 2–8.) Solebo, Plaintiff's decedent, died on May 1, 2007, while incarcerated at the Metropolitan Correctional Center (the “MCC”) pending criminal trial proceedings. Plaintiff alleges that the United States, by and through the MCC and MCC physicians, staff, supervisors, employees, agents, and apparent agents, negligently failed to provide Solebo with proper and adequate medical attention, thereby proximately causing Solebo's death. ( Id. at 2–8.) Plaintiff seeks a total of $1,650,000.00 in wrongful death damages for loss of consortium, loss of society, companionship, money, benefits, goods, services, grief, sorrow, and mental suffering. (R. 93, Proposed Pretrial Order, Ex. G: Statement of Damages at 1.)

In February 2012, this Court voluntarily accepted the transfer of this lawsuit to its docket during the unfortunate illness of its friend and judicial colleague, the Honorable William J. Hibbler, who prematurely passed away on March 19, 2012, at the age of 65. Thereafter, it was brought to this Court's attention that it had also presided over Solebo's criminal proceedings and the less than successful criminal prosecution of Solebo's co-defendant in those proceedings. Nevertheless, this Court is confident that it approached these trial proceedings from a neutral standpoint; not favoring one side or the other. Unfortunately, the bottom line is that this Court must conclude that the repeated negligence of officials at the MCC caused Solebo's premature death.

After bifurcating the proceedings, this Court conducted a five-day bench trial on liability beginning in late February 2012. (R. 102, Min. Entry; R. 103, Min. Entry; R. 104, Min. Entry; R. 105, Min. Entry; R. 106, Min. Entry.) On March 15, 2012, this Court ruled that Plaintiff established by a preponderance of the evidence that the United States negligently violated the appropriate standard of care for treating Solebo's seizure disorder and that its negligence proximately caused his death in a reasonably foreseeable manner during his ongoing treatment for seizure disorder. (R. 109, Order on Liability at 1; R. 108, Min. Entry.) On May 16, 2012, this Court issued an order on comparative fault, finding that the United States bore 67% of the responsibility for Solebo's death and that Solebo's contributory fault was 33%. (R. 117, Order on Comparative Fault at 1.) On June 4, 2012, this Court held the damages phase of the trial. (R. 118, Min. Entry.) That same day, the case was referred to the Honorable Morton Denlow for one final settlement conference, which proved to be unsuccessful, and on July 16, 2012, the case was referred back to this Court for a ruling. (R. 125, Min. Entry.)

In this memorandum opinion and order, this Court explains its findings of fact and conclusions of law. Pursuant to Federal Rule of Civil Procedure 52, this Court hereby enters the following written Findings of Fact and Conclusions of Law, which are based upon consideration of all the admissible evidence as well as this Court's own assessment of the credibility of the trial witnesses. To the extent, if any, that Findings of Fact, as stated, may be considered Conclusions of Law, they shall be deemed Conclusions of Law. Similarly, to the extent that matters expressed as Conclusions of Law may be considered Findings of Fact, they shall also be deemed Findings of Fact.

FINDINGS OF FACT

This Court concludes that Plaintiff established through both direct and circumstantial evidence, as well as reasonable inferences drawn therefrom, the following facts by a preponderance of the evidence:

I. General Background

1. Habib Solebo was born on June 10, 1983. (Pl.'s Ex. A at 84; June 4, 2012 Tr. 9, June 4, 2012.) ¹ He and Plaintiff were married on October 4, 2005. (June 4, 2012 Tr. 2.) On October 8, 2006, while Solebo was incarcerated at the MCC, their daughter, Jadesola Sholebo was born. (June 4, 2012 Tr. 5–6.)

2. Solebo was arrested on January 25, 2006. (Stip. Ex., United States v. Mustapher, No. 06 CR 61–2, Excerpt of Trial Tr. 61–62 (Jan. 24, 2007, J. Castillo); Stip. Ex., Arrest and Interview of Habib Solebo Jan. 25, 2006.) The next day, he was taken to the Kankakee County Detention Center/Jerome Combs Detention Center (“Kankakee”). ( See Jt. Ex. 3 at 1–3.) On August 28, 2006, Solebo was transferred to the MCC in Chicago, Illinois. (Def.'s Ex. 22 at 1.) Following his arrest, he was indicted for conspiracy to distribute and to possess with intent to distribute 100 grams or more of a substance containing heroin in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 (Count I), and distribution of a substance containing .33 grams of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count II), and possession with the intent to distribute and distribution of 99.4 grams of a substance containing heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count III). (Def.'s Ex. 8, Indictment at 1–3, United States v. Solebo and Mustapher, No. 06 CR 61 (N.D.Ill. Feb. 23, 2006).) ²

3. Solebo was found dead in his cell at the MCC in the early morning of May 1, 2007. (R. 93, Proposed Pretrial Order, Ex. A: Stip. of Uncontested Facts ¶¶ 1–2.) At the time of his death, he was 23 years old. (Pl.'s Ex. A at 58.) He is survived by his wife and his minor daughter, (R. 93, Proposed Pretrial Order, Ex. A: Stip. of Uncontested Facts ¶ 3), who was six months old at the time of his death, (June 4, 2012 Tr. 17).

II. Solebo's time at the Kankakee County Detention Center: January 2006 to August 2006

4. On January 26, 2006, Solebo was incarcerated at Kankakee. ( See Jt. Ex. 3 at 1–2.) At this time, Solebo reported that he did not have an individual or family history of seizures and that he was not taking any medications. ( Id.) A report of Solebo's past medical history indicated that Solebo had a history of smoking and that he did not have a history of seizures. ( Id. at 3.)

5. On February 17, 2006, Solebo experienced his first episode of loss of consciousness and was admitted to the emergency room at Provena St. Mary's Hospital (“Provena”). ( Id. at 24, 41–43.) Although Solebo's chief complaint was described as a fall, the medical note from the emergency room visit provides, “? [seizure] prior to fall?” ( Id. at 45.) A February 23, 2006 progress note from Solebo's Kankakee medical records describing this episode states: “In ER on 2/17. Was laying in bed sleeping. Next thing he knew he was being brought to hospital. The roommate says he was shaking. No incontinence. No personal or [family] history of [seizures]. Stated head injury ... [with] blowout [fracture].” ( Id. at 24; see also Trial Tr. 578–79.)

6. While at Provena, Solebo underwent a Computed Tomography scan (“CT scan”). (Jt. Ex. 3 at 39.) The CT scan impression stated, in part: “No hemorrhage, mass effect or contusion in the brain. Blow out fracture of the left lamina papyracea of indeterminate age. Minimally displaced fracture of the nasal bones.” ( Id. at 39.) This was not a normal CT scan in that there were some findings. (Trial Tr. 365.)

7. On February 23, 2006, Dr. Jeffrey Long of the Medical Group of Kankakee County (“Kankakee Medical”) saw Solebo after he returned to Kankakee. (Jt. Ex. 3 at 24.) Dr. Long's assessment at this time was “loss of consciousness [with] shaking activity.” ( Id.; Trial Tr. 271.) Dr. Long's recommendations and treatment plan provided that if Solebo had “further [seizures] empiric RX [with] Dilantin or phenobarbital” should be commenced. (Jt. Ex. 3 at 24; see also Trial Tr. 271–72, 578.) Dr. Long also ordered that Solebo undergo an electroencephalogram (“EEG”) test for possible seizures. (Jt. Ex. 3 at 24, 36; Trial Tr. 364.)

8. On February 24, 2006, Solebo underwent an EEG at Provena. (Jt. Ex. 3 at 38.) The EEG results state: “[t]his is a case of a patient with possible seizures.” ( Id.) The EEG was “within normal limits,” and no epileptiform activity was detected. ( Id.)

9. On April 17, 2006, Dr. Abigail Martinez of Provena prescribed Solebo 100 milligrams of Dilantin to be taken twice a day. (Jt. Ex. 3 at 14, 40.) Dilantin, also known as Phenytoin, (Trial Tr. 409), is an anti-seizure medication that lowers the risk of having seizures, (Trial Tr. 497, 504; Trial Tr. 758), and is customarily administered in the form of pills, (Trial Tr. 223).

10. Three days later, on April 20, 2006, Physician Assistant K. Patterson of Kankakee Medical saw Solebo to follow up on an emergency room visit and discontinued his Dilantin. (Jt. Ex. 3 at 14, 20, 31.) A progress note for this visit provided: “Habib states woke up in am with correctional officers standing over him, they had called ambulance. He has no other recollection of event and I have no history from [correctional officers]. I have no ER paperwork. Came back [with prescription] for Dilantin. Habib refuses [medications], states he does [not] have seizures. Does not want to be housed in this building, wants to return to old jail.” ( Id. at 20; see also Trial Tr. 582.) The progress note also stated that Solebo did not have a history of seizures. (Jt. Ex. 3 at 20.) The assessment at this time was “Questionable episode [loss of...