A recent case, in which Parsons Behle & Latimer successfully defended two prison doctors and the medical company they worked for in Merchant v. Corizon Health, Inc., 993 F.3d 733 (9th Cir. 2021), sent a cautionary tale that following court deadlines is critical to a successful outcome for clients.
The case involved serious claims that an Idaho inmate swallowed a razor blade to force prison officials to transport him to the hospital after a fast-moving, fleshing eating infection in his left leg was allegedly ignored, thereby resulting in an above-the-knee amputation to save his life. There was no dispute that the inmate developed a necrotizing fasciitis infection that ultimately led to the leg amputation. However, the physicians’ medical experts had different opinions that the medical care at the prison was appropriate and that the inmate’s actions and his prior medical conditions led to the infection and resulting amputation.
What Led to the Amputation?
In the weeks leading up to the hospitalization and amputation, the inmate repeatedly requested medical care. The inmate presented with a complex medical case because he had numerous serious comorbidities to be managed, including congestive heart failure, atrial fibrillation, hypertension, chronic obstructive pulmonary disease and Crohn’s Disease (a chronic disease that causes inflammation and irritation in the digestive tract). During the time-period at issue in the case, the inmate began complaining about a Crohn’s flare up (essentially abdominal pain and diarrhea). The prison physician assessed him, prescribed prednisone and ordered Humira every two weeks to manage his Crohn’s-related pain. The inmate later did complain about left leg pain and swelling. While swelling should not be ignored, it is also a common side effect of some of the medications the inmate was taking. A nurse then assessed equal swelling in both legs and scheduled an appointment with the doctor the following day. However, the inmate refused to see the doctor for unknown reasons. The doctor reviewed the inmate’s chart and prescribed Lasix (a diuretic) to help the leg swelling.
A couple days later, the inmate complained of diarrhea and swelling in his ankles that he felt required emergency medical attention. The doctors and medical staff determined that these conditions did not constitute a medical emergency that required immediate attention. Rather, the inmate was instructed to request a regular medical appointment. The inmate may have refused another appointment earlier that day as well. The inmate then swallowed a razor blade and was transported to the hospital. At the hospital, the ER doctors did not initially diagnose an infection, but admitted the inmate to the hospital for risk of an intestine laceration due to swallowing the razor blade and potential related bleeding, atrial februation and a Crohn’s flare up. The inmate was not initially admitted to the hospital for leg pain, swelling, or an infection. The inmate was not diagnosed with a necrotizing fasciitis infection until several hours after being admitted to the ICU. At that point, it was determined that a leg amputation was necessary. It appeared the infection first presented in the hospital.
The inmate then filed a lawsuit in federal court claiming the medical care by the physicians and their company was deliberately indifferent under the Eighth Amendment of the U.S. Constitution and also constituted medical malpractice under state law.
What Happened with the Experts?
During the lawsuit, counsel for the defendant physicians timely and properly disclosed medical experts in the case who opined that the medical care at the prison was appropriate, and the treatment provided was within the applicable standard of medical care. Further, the medical providers disclosed an infectious disease expert who opined that the inmate caused the serious infection and resulting amputation by his act of swallowing the razor blade. The razor blade, the expert determined, carried streptococcus bacteria from his throat to his intestines that then entered his bloodstream due to intestine lacerations caused by the razor blade. The bacteria then moved to his swollen left leg and ultimately became a serious infection. The physicians’ experts also concluded that the inmate’s comorbidities and the medications he had taken to control them contributed to this rare infection developing at no fault of the prison medical providers.
The inmate’s counsel attempted to disclose medical experts to opine to the contrary; that the prison medical care was not appropriate and to refute the physicians’ infectious disease expert. Previously, the court had issued an order in the case requiring the parties to disclose experts by specific dates. Significantly, the inmate’s counsel repeatedly failed to disclose his expert opinions and the required supporting expert information by the court’s deadlines and in a manner required by court rules. The physicians’ counsel then filed motions asking the court to exclude and not consider the inmate’s experts and to dismiss the case because the inmate had no evidence to prove his claims that the medical care at the prison was deficient. The inmate’s attorney downplayed the late expert disclosures as insignificant “minor violations,” arguing the late disclosures did not cause any harm (prejudice) to the physicians’ ability to defend their case, and argued the late disclosure was justified because the inmate’s counsel was out of the country. The physicians disagreed, and so did the court.
Trial Court Dismisses the Entire Case
Federal Rule of Civil Procedure 37(c)(1) is an “automatic” sanction that prohibits the use of improperly disclosed evidence (such as untimely and improper expert disclosures) unless the discovery violations were substantially justified or harmless. The trial court excluded the inmate’s experts under this rule because of the inmate’s repeated late and incomplete expert disclosures in violation of court rules and court ordered deadlines. The trial court then dismissed the case, in large part, because the inmate had not timely disclosed expert medical evidence to prove his claims. The court also determined that counsel’s failure to timely disclose his experts was not substantially justified (his attorney’s vacation was an insufficient excuse and could have been planned around) and was prejudicial to the physicians and the medical company they worked for because they had worked their case, developed their theories and defenses and filed a motion seeking dismissal.
Ninth Circuit Court of Appeals Agrees with the Trial Court Dismissal
The inmate appealed the trial court’s decision to dismiss his case. On appeal, he argued that the exclusion of his experts was unjustifiably harsh, and he should have been able to present his case with his experts, especially since the violations were minor and justified. The Ninth Circuit disagreed and observed, among other things, that while some of his expert disclosures were only a few days late, they were still incomplete under court rules. Other expert evidence was disclosed 61 and 134 days past the court’s deadlines. Nevertheless, the inmate argued that since the trial court’s exclusion of his experts resulted in the harsh sanction of his entire case being dismissed, the court failed to consider whether the non-compliance involved “willfulness, bad faith, or fraud” and failed to consider lesser sanctions. The Court of Appeals, however, made new law in the Ninth Circuit and held that where a party does not formally request lesser sanctions (i.e., by filing a motion), “the party is not allowed to use [the excluded] information or witness to supply evidence on a motion, at a hearing, or at a trial.” Indeed, in this case, the inmate never formally requested lesser sanctions. The inmate, for example, could have tried to request the court issue an order requiring him to pay attorney’s fees and costs for the violations, rather than excluding all his experts and dismissing the case. (Although there arguably were no adequate and just lessor sanctions under the circumstances of this case.) In any event, the Court of Appeals affirmed the trial court and upheld the dismissal of the case.
Lesson Learned
The Ninth Circuit Court of Appeals made a statement in this case by offering the stern warning “that flouting generally applicable procedural rules – the rules of the game that all parties are entitled to rely upon and expect courts to enforce – has consequences. Sometimes even case-ending consequences.”
In lawsuits challenging medical care, the parties to the lawsuit (and their counsel) should generally retain qualified experts to support their case and ensure the experts and their opinions are timely and properly disclosed by the court ordered deadlines. Failure to do so could not only leave a party without any experts, but also result in completely losing the case.
For more information about this matter or related issues, contact Dylan Eaton, lead defense counsel in the above discussed case, by calling 208.562-4911, or send an email to deaton@parsonsbehle.com.
