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Ball v. Kootenai County

United States District Court, D. Idaho

September 16, 2016

MARVIN L. BALL, JR.; and CORY BALL, in his personal capacity and as Caretaker of MARVIN L. BALL, Plaintiffs,
v.
KOOTENAI COUNTY; KOOTENAI COUNTY SHERIFF'S OFFICE; CITY OF POST FALLS; CORRECTIONAL HEALTHCARE COMPANIES, INC., a Colorado corporation; CORRECTIONAL HEALTHCARE MANAGEMENT, a Delaware corporation; SCOT HAUG, Chief of the City of Post Falls Police Department; JASON DeWITT; ALANNA VESSER; and DOES I-X, each in their personal and representative capacities, Defendants.

          MEMORANDUM DECISION AND ORDER RE: MOTION TO STRIKE (DKT. 93)

          Honorable Candy W. Dale United States Magistrate Judge

         INTRODUCTION

         Pending before the Court is the Motion to Strike Standard of Care Opinions by Donald Chilson, M.D., submitted in support of Plaintiff Marvin Ball's objection to motion for summary judgment (Dkt. 60), filed by Defendants Correctional Healthcare Companies, Inc., Correctional Healthcare Management, and Alanna Vesser.[1] (Dkt. 93.) The motion is fully briefed and ready for review. In the interest of avoiding delay, and because the Court conclusively finds the decisional process would not be significantly aided by oral argument, the motion will be decided on the record and without oral argument. Dist. Idaho. L. Rule 7.1(d).

         FACTUAL BACKGROUND[2]

         On June 28, 2012, Officer Jason DeWitt tasered and arrested Ball in the parking lot of Ball's apartment complex.[3] At the time of his arrest, Ball was sixty-one years of age and allegedly had a history of arthritis, stroke, and chronic respiratory and cardiac conditions. When transporting Ball to the Kootenai County Jail, DeWitt allegedly observed a change in Ball's demeanor, profuse sweating and a blank stare and notified jail personnel of these observations upon arrival.

         When Ball arrived at the jail, he was placed into a “safety cell, ” which Defendants allege, was for security reasons. Alanna Vesser, a Licensed Practical Nurse (LPN), was assigned to assess Ball. However, Vesser's attempt to assess Ball was interrupted and she was ordered to leave his cell. Vesser allegedly did not resume her physical examination of Ball that evening. Over the next few days, Medical Defendants observed Ball on a daily basis; however, he was not assessed, evaluated, examined, or referred for further treatment until July 2, 2012, when Abby Larson, LPN, conducted an assessment of Ball in his cell and allegedly concluded Ball exhibited symptoms of a stroke.

         Ball was transported to Kootenai Medical Center for evaluation, where it was later confirmed that he had had a stroke. Today, Ball, who is no longer incarcerated, requires around the clock assistance. Ball cannot talk, is incontinent, cannot walk without the aid of a walker and his right hand is paralyzed. Marvin Ball's son, Corey Ball, acts as his father's full time caretaker.

         On July 27, 2015, Ball filed his Second Amended Complaint alleging, among other violations of 42 U.S.C. Section 1983, that the Medical Defendants acted with deliberate indifference by failing to provide Ball with immediate medical care upon his arrival at the Kootenai County Jail on June 28, 2012, and by delaying medical care and treatment to him until he was transported to Kootenai Medical Center on July 2, 2012. Ball claims these acts or omissions violated his rights under the Eighth Amendment to the Constitution of the United States. There are no professional negligence or other state law claims asserted against any of the Medical Defendants in the Second Amended Complaint.[4] (Dkt. 46.)

         PROCEDURAL BACKGROUND

         Pursuant to the Court's second and third amended scheduling orders, Ball's expert witness disclosures and expert reports were due July 6, 2015, Defendants' expert witness disclosures and expert reports were due October 4, 2015, and the rebuttal expert witness disclosure deadline was November 3, 2015. (Dkts. 31, 51.)

         On July 10, 2015, Ball served his initial expert witness disclosures.[5] Within his initial disclosure, Ball disclosed Donald Chilson, M.D., a cardiologist, as an expert witness. Ball's initial disclosures did not expressly include a correctional nurse expert, nor were Ball's expert witness disclosures supplemented to include one. Defendants filed their initial expert witness disclosures on October 2, 2015, disclosing Kathy Wild as a correctional nursing expert. (Dkt. 93-3 at 3.) On December 7, 2015, Defendants filed a motion for summary judgment seeking to dismiss all claims asserted against them by Ball in the Second Amended Complaint. (Dkt. 60.)

         On January 20, 2016, Defendants conducted a deposition of Ball's expert witness, Dr. Chilson. On March 9, 2016, when Ball filed his response to Defendants' motion for summary judgment, [6] Ball submitted certain excerpts from Dr. Chilson's deposition in support of his response. Specifically, Ball cites to and relies upon certain testimony and opinions expressed by Dr. Chilson in his deposition, summarized in Ball's response brief as follows:

Dr. Chilson is board certified in cardiology and internal medicine, and has practiced in this jurisdiction for 22 years. In pertinent part, Dr. Chilson stated the following: (1) the signs and symptoms exhibited by Marvin Ball, Jr. upon his arrival at the Kootenai County Jail on June 28, 2012 required immediate evaluation at a medical facility, regardless of the genesis of those signs and symptoms; (2) the signs and symptoms exhibited by Mr. Ball were such that even a lay person would suspect he was suffering a stroke; (3) the signs and symptoms exhibited by Mr. Ball required immediate neurological assessment by Ms. Vesser; (4) placing an oximeter on Mr. Ball's finger or looking at him through the cell window was an insufficient assessment; and (5) failing to perform an adequate neurological assessment prior to July 2, 2012 was profoundly negligent.

(Dkt. 92 at 9.)

         On March 28, 2016, the Medical Defendants filed a motion to strike Dr. Chilson's deposition testimony and opinions to the extent they relate to the conduct or omissions of the Medical Defendants. (Dkt. 93.) At issue is the admissibility of the excerpts of Dr. Chilson's deposition testimony filed by Ball in support of his response to the motion for summary judgment.

         STANDARD OF LAW

         On summary judgment, to support their claim or defense, a party asserting that a fact cannot be or is genuinely disputed must cite to particular parts of materials in the record, including depositions, documents, affidavits or declarations, admissions, interrogatory answers, or other materials. Fed.R.Civ.P. 56(c)(1)(A). Alternatively, an adverse party can demonstrate that the other party cannot produce admissible evidence to support a fact. Fed.R.Civ.P. 56(c)(1) (B). An opposing party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

         As to the parties filing motions to strike as a means of objecting to the evidence submitted in support of or against a pending motion for summary judgment, the Advisory Committee Notes to the 2010 amendments to Rule 56 provide that a Rule 56(c)(2) objection “functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike.” Fed.R.Civ.P. 56 advisory committee's note (2010 Amendments).

         Motions to strike are limited to pleadings, which are defined by Federal Rule 7(a); statements made in depositions used in support of, or in opposition to, a motion for summary judgment are not pleadings. See Albertson v. Fremont County, Idaho,834 F.Supp.2d 1117, 1123 n. 3 (D. Idaho 2011). Accordingly, the motion to strike filed by the Medical Defendants will be construed as an objection to the excerpts of Dr. Chilson's deposition testimony filed by Ball in support of his response to the motion for summary judgment filed by ...


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