Estate of Dustin Barnwell v. Mitchell Grigsby ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0031n.06
No. 18-5480
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ESTATE OF DUSTIN BARNWELL, ) FILED
) Jan 21, 2020
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
MITCHELL GRIGSBY; RICHARD )
DISTRICT OF TENNESSEE
STOOKSBURY; DAVID RANDLE; ROBERT )
COOKER, )
)
Defendants-Appellees. )
BEFORE: MERRITT, GIBBONS, and NALBANDIAN, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. On November 11, 2011, Dustin Barnwell
took eight prescription muscle relaxant pills and lost consciousness. Barnwell’s girlfriend, Shasta
Gilmore, called 911 to report that Barnwell was possibly overdosing and trying to fight her. Two
police officers and four paramedics responded to the call. The officers held Barnwell down while
the paramedics treated him. Pursuant to their intubation protocols, the paramedics administered a
series of drugs, including a paralytic called succinylcholine. After the paramedics intubated him,
Barnwell was transported to the hospital and died soon after.
Gilmore, on behalf of Barnwell’s estate, sued the paramedics, officers, and Roane County,
Tennessee. Her complaint alleged federal claims under 42 U.S.C. §§ 1983 and 1985, health care
liability claims, and state-law battery claims. The district court dismissed each of Gilmore’s claims
Case No. 18-5480, Estate of Barnwell v. Grigsby
at various stages of the litigation, culminating in the entry of judgment as a matter of law in favor
of the defendants after three days of trial.
On appeal, Gilmore challenges the district court’s grant of summary judgment in favor of
the defendants on her § 1983 unlawful-restraint claim and related state-law battery claim; dismissal
of her health care liability claim for failure to comply with statutory filing requirements; and grant
of judgment as a matter of law in favor of the defendants on her § 1983 excessive-force claim and
related state-law battery claim. Gilmore also raises Fifth Amendment and Seventh Amendment
claims on appeal. For the following reasons, we affirm.
I.
A.
On November 11, 2011, Barnwell, Gilmore, and their daughter visited Barnwell’s friend,
Aaron Sweat, around 4:30 or 5:00 p.m. Sweat gave Barnwell Flexeril pills (cyclobenzaprine
hydrochloride), a prescription muscle relaxant. Barnwell took the pills and later collapsed on his
couch, having lost consciousness. When Gilmore could not wake Barnwell, she grew concerned
that he had overdosed. Gilmore contacted her mother, Cherry Turner, and Sweat for help.
According to Sweat, Barnwell started kicking him and became combative when Sweat tried to
wake him. Turner confirmed as much in her signed statement to the police, noting that Barnwell
was kicking and trying to bite them.
A few minutes after 8:00 p.m., Gilmore called 911. She told the dispatcher that Barnwell
had taken Flexeril. Gilmore emphasized Barnwell’s combative behavior to the dispatcher and
noted that he kept trying to fight her.
Officers Mitch Grigsby and Richard Stooksbury were the first of the defendants to respond.
Gilmore informed Grigsby and Stooksbury that Barnwell had obtained eight Flexeril pills earlier
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that day and passed out around 7:00 p.m. She warned them both that Barnwell was very combative.
Stooksbury tried to wake Barnwell verbally and, when that failed, by shaking his foot.
The parties recount what happened next differently.
Grigsby and Stooksbury attested that Barnwell woke up and immediately started kicking
Stooksbury. The officers tried to control Barnwell using “soft-arm techniques” on his arms and
legs. DE 99-5, Stooksbury Aff., Page ID 597. Barnwell continued to be combative, tried to bite
the officers and Turner, and refused to tell them what drugs he took. After Barnwell cycled in and
out of consciousness several times, Stooksbury and Grigsby put Barnwell on the floor facedown
and held him there until the paramedics arrived.
Gilmore, on the other hand, testified that the two officers were pushing Barnwell down on
the couch and slamming his legs down each time he tried to sit up or move. According to Gilmore,
one of the officers grabbed Barnwell’s arm and threatened to break it if Barnwell tried to bite him.
She recalls Grigsby and Stooksbury being so rough that she asked them to “please stop before
[they] kill him.” DE 365, Trial Tr. Vol. II, Page ID 9632. The officers then flipped Barnwell off
the couch and pinned him to the floor. According to Gilmore, Barnwell did not try to bite, kick,
or punch anyone during this time. Despite her 911 call stating Barnwell was combative, Gilmore
later backtracked, claiming that she “miscommunicated” Barnwell’s combativeness. Id. at 9640.
In Turner’s courtroom testimony, she also denied seeing Barnwell try to bite, kick, spit on, or
injure the officers in any way. Her initial statement to the police in 2011, however, told a different
story.
Around the time that the officers moved Barnwell to the floor, paramedics David Randle
and Mike Myers arrived. Based on Barnwell’s “very combative” condition and the need to treat
him, Randle and Myers asked the officers to handcuff Barnwell. DE 99-6, Randle Aff., Page ID
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694. Shortly thereafter, two more paramedics, Robert Cooker and Mark Carter, joined the fray.
The paramedics observed that Barnwell had a highly elevated blood pressure and heart rate and
seemingly could not control his movements, including banging his head against the floor.
Barnwell’s breathing was also irregular. Based on their assessment of Barnwell’s condition and
what they had discerned from Gilmore, the paramedics’ diagnosis was that Barnwell was suffering
from an overdose or cerebral hemorrhage.
The paramedics then decided “to place an IV so that [they] could administer medications
intended to control [Barnwell’s] involuntary movements . . . by causing paralysis and loss of
reflexes.” Id. at Page ID 695. They needed to control Barnwell’s movements in order to intubate
him to assist with his breathing and heart function. It was at this point that Gilmore recalls
Stooksbury turning to her and saying “We’re about to knock him out.” DE 365, Trial Tr. Vol. II,
Page ID 9648. The officers then instructed Gilmore and Turner to go outside while the paramedics
continued to treat Barnwell.
The paramedics began the intubation sequence. The Roane County Rapid Sequence
Paralysis and Intubation (“RSI”) Protocol’s “Assessments and Indications” call for RSI on patients
who are “[s]everely combative” or those for whom “[all] standard attempts to establish an airway
have failed.” DE 202-1, RSI Protocol, Page ID 3319. The RSI Protocol involves the
administration of multiple drugs for sedation and paralysis, including succinylcholine.
Succinylcholine works to paralyze the muscles, including the lungs and diaphragm. A patient who
is administered succinylcholine requires assistive ventilations. To perform the RSI, Randle
established an IV line, and Cooker administered four drugs in sequence, including 150 milligrams
of succinylcholine. Once they achieved paralysis, Randle and Cooker intubated Barnwell—that
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is, they placed a tube in his trachea to assist with breathing. By this time, the officers had removed
the handcuffs.
Barnwell went into cardiac arrest. The paramedics administered another drug to counter
the loss of heart function and started CPR. Randle and Cooker continued to provide CPR while
transporting Barnwell to the hospital. During transport, they noticed a brown fluid in the
endotracheal tube. The paramedics then removed the tube, placed an oral airway, and manually
ventilated Barnwell. When they arrived at the hospital, an emergency room doctor took over.
Thirty minutes later, Barnwell died.
According to the autopsy report, the cause of death was Excited Delirium Syndrome1
(“EDS”) associated with cyclobenzaprine overdose. The report noted that Barnwell’s underlying
heart disease contributed. The supplemental toxicology report indicated cyclobenzaprine in
Barnwell’s blood at toxic levels. The medical examiner concluded that Barnwell’s Flexeril
(cyclobenzaprine) overdose led to his EDS state, which ultimately caused his death.
B.
In November 2012, Gilmore filed a complaint in state court, naming two officers, four
paramedics, and Roane County as defendants. Based on the officers’ restraint of Barnwell and the
paramedics’ institution of RSI Protocol, Gilmore asserted claims under 42 U.S.C. §§ 1983–1985
and under the Tennessee Health Care Liability Act (“THCLA”), as well as state-law claims for
battery. The defendants removed the case to federal court.
In 2013, the defendants moved to dismiss the THCLA claim based on Gilmore’s failure to
comply with the statutory filing requirements. The defendants moved for summary judgment on
1
EDS generally involves an “altered mental status with severe agitation and combative or assaultive behavior.” DE
200-9, Journal Article, Page ID 2689. EDS can be caused by drug toxicity, most often due to methamphetamine or
cocaine consumption.
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the same basis after Gilmore filed an amended complaint. The district court entered summary
judgment in favor of the defendants and dismissed Gilmore’s THCLA claim with prejudice.
In 2016, the defendants moved for summary judgment on the remaining claims. The
district court granted summary judgment in favor of Grigsby, Stooksbury, and Myers based on
qualified immunity and dismissed Gilmore’s unlawful-restraint claim against these three
defendants. The district court denied qualified immunity to Grigsby, Stooksbury, Cooker, and
Randle on the § 1983 excessive-force claim premised on their administering succinylcholine to
Barnwell. Roane County and paramedics Myers and Carter were dismissed.2
Grigsby, Stooksbury, Cooker, and Randle appealed the 2016 order denying them qualified
immunity. A panel of this court dismissed the appeal for lack of jurisdiction because the
defendants’ arguments relied on their own versions of the facts. Estate of Barnwell v. Grigsby,
681 F. App’x 435, 440–42 (6th Cir. 2017).
On remand, only Gilmore’s § 1983 excessive-force claim and related state-law battery
claim remained.
Trial began on October 3, 2017 and ended on October 6, 2017, after the conclusion of
Gilmore’s proof. The defendants moved for judgment as a matter of law under Fed. R. Civ. P. 50.
Finding insufficient evidence upon which a reasonable jury could find in Gilmore’s favor, the
district court granted the motion and dismissed the case. On April 10, 2018, the district court
denied Gilmore’s motion for reconsideration. Gilmore timely appealed.
2
Roane County was not officially dismissed as a party until September 20, 2017. The docket indicates that Roane
County was dismissed per the district court’s April 9, 2015 order, which granted summary judgment in favor of the
County on Gilmore’s state-law claims. However, Gilmore’s Monell claim against the County survived until June 16,
2016, when the district court entered an order granting summary judgment in favor of the County on that claim. In
any event, Roane County was no longer a party to this case by the time it went to trial on October 3, 2017.
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II.
A.
In its October 25, 2013 order, the district court dismissed Gilmore’s THCLA claim against
Roane County and paramedics Randle, Cooker, Carter, and Myers. The district court found that
Gilmore failed to comply with the statutory requirements for pre-suit notice under Tenn. Code
Ann. § 29-26-121 and the filing of a certificate of good faith under Tenn. Code Ann. § 29-26-122.
Because Gilmore failed to demonstrate extraordinary cause to excuse such noncompliance, the
district court granted the defendants’ motion for summary judgment and dismissed Gilmore’s
THCLA claim with prejudice.3 The district court later denied Gilmore’s motion for
reconsideration of its decision.
This court reviews de novo a district court’s grant of summary judgment. Tysinger v.
Police Dep’t of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). Summary judgment is proper where
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). We view the record in the light most favorable to and draw all
reasonable inferences in favor of the nonmovant. Blackmore v. Kalamazoo County, 390 F.3d 890,
895 (6th Cir. 2004).
Gilmore did not sufficiently comply with the THCLA’s pre-suit notice requirement.
Because failure to comply with this requirement ordinarily results in dismissal without prejudice,
however, it is necessary for us to address Gilmore’s noncompliance with the statutory requirement
3
The district court’s order addressed multiple of the defendants’ motions—motion for summary judgment and motions
to dismiss—that were pending on overlapping grounds. The district court noted that, in entertaining either the motions
to dismiss or the motion for summary judgment, it reached the same conclusion. Further, the district court noted that
Tenn. Code Ann. § 29-26-122 mandates dismissal with prejudice for noncompliance with its requirements, so such an
order was required here, and, although Tenn. Code Ann. § 29-26-121 does not bar re-filing after a dismissal for
noncompliance with the requirements of its section, the applicable statute of limitations had run. See Tenn. Code Ann.
§ 29-26-116(a)(1) (prescribing a one-year limitations period). The district court denied Gilmore’s motion for leave to
file a limited nonsuit of her THCLA claim for presumably the same reasons.
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of filing a certificate of good faith, as well. While the law is less clear as to what standard of
compliance will satisfy such requirement, Gilmore’s certificates—she filed multiple—fall short
and warrant dismissal of her THCLA claim with prejudice.4 And because Gilmore failed to show
extraordinary cause to excuse her noncompliance, we affirm the district court’s decision to dismiss
her THCLA claim.
1. Pre-Suit Notice Requirement
A THCLA plaintiff must provide “written notice of the potential claim to each health care
provider that will be a named defendant at least sixty (60) days before the filing of a complaint.”
Tenn. Code Ann. § 29-26-121(a)(1). The content requirements of the notice include:
(A) The full name and date of birth of the patient whose treatment is at issue;
(B) The name and address of the claimant authorizing the notice and the
relationship to the patient, if the notice is not sent by the patient;
(C) The name and address of the attorney sending the notice, if applicable;
(D) A list of the name and address of all providers being sent a notice; and
(E) A HIPAA compliant medical authorization permitting the provider receiving
the notice to obtain complete medical records from each other provider being
sent a notice.
4
This court recently addressed whether Ohio’s similar affidavit of merit requirement applied to a medical malpractice
action brought in federal court. Gallivan v. United States, 943 F.3d 291, 293 (6th Cir. 2019). In Gallivan, this court
held that Ohio Rule 10(D)(2), which contains the affidavit of merit requirement, did not apply to a claim of medical
negligence under the Federal Tort Claims Act because the Federal Rules of Civil Procedure do not require such an
affidavit. Id. at 293–94. Following the Supreme Court’s two-part analysis in Shady Grove Orthopedic Assoc., P.A.
v. Allstate Ins. Co., 559 U.S. 393, 398 (2010), this court found that (1) the Federal Rules answered the question of
whether Gallivan had to file an affidavit and (2) the Federal Rules were valid. Id. at 294. Gallivan, therefore, did not
need to file a medical affidavit with his complaint. Id. Although Tennessee’s certificate of good faith requirement is
arguably similar to Ohio’s affidavit of merit requirement, Gilmore does not raise this argument or otherwise suggest
that the requirements under Tenn. Code Ann. §§ 29-26-121 and 29-26-122 are inapplicable in light of the Federal
Rules. She has therefore waived the issue of whether these requirements should apply to her THCLA claim. See
Edward Lewis Tobinick, MD v. Novella, 848 F.3d 935, 944 (11th Cir. 2017) (noting that the plaintiffs “waived their
challenge to the district court’s application of California’s anti-SLAPP statute based on the Erie doctrine”); see also
Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1349 (11th Cir. 2018) (distinguishing Novella and explaining
that the California statute only applied in Novella because the plaintiff waived the Erie issue).
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Id. § 29-26-121(a)(2). The complaint itself must include a statement of compliance with the pre-
suit notice requirements and must be accompanied by documentation certifying proof of service.
Id. § 29-26-121(a)(3)–(4), (b). This “statute is very specific about how and when the notice must
be sent and the information the notice must contain.” Conrad v. Washington County, No. 2:11-
CV-106, 2012 WL 554462, at *2 (E.D. Tenn. Feb. 21, 2012). The court has discretion to excuse
a plaintiff’s failure to comply with the pre-suit notice requirements, but “only for extraordinary
cause shown.” Tenn. Code Ann. § 29-26-121(b).
When the district court dismissed Gilmore’s THCLA claim in 2013, Tennessee law
required strict compliance with the pre-suit notice requirement. See Myers v. AMISUB (SFH),
Inc., 382 S.W.3d 300, 304 (Tenn. 2012) (holding that the pre-suit notice requirement under Tenn.
Code Ann. § 29-26-121 was mandatory and not subject to substantial compliance); Moses v.
Dirghangi, 430 S.W.3d 371, 380–83 (Tenn. Ct. App. 2013) (acknowledging the same).
Accordingly, the district court applied a strict-compliance standard and found Gilmore’s pre-suit
notice lacking.
Since then, however, Tennessee has relaxed its standards regarding the pre-suit notice
requirements.5 Courts will forgive “[n]on-substantive errors and omissions,” and substantial
compliance will satisfy the statute. Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs.,
Inc., 418 S.W.3d 547, 555–56 (Tenn. 2013). In particular, the content requirements of subsections
5
See, e.g., Bray v. Khuri, 523 S.W.3d 619, 624 (Tenn. 2017) (holding that plaintiff need not provide the statutorily-
required HIPAA-compliant medical authorization when a single health care provider is given pre-suit notice of a
health care liability claim); Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512,
520–21 (Tenn. 2014) (holding that failure to file with the complaint an affidavit of the person who had sent pre-suit
notice by certified mail is not fatal, if such failure does not prejudice the opposing litigant); Hamilton v. Abercrombie
Radiological Consultants, Inc., 487 S.W.3d 114, 118 (Tenn. Ct. App. 2014) (holding that plaintiff’s omission of a
date on her HIPAA authorization was a “minor shortcoming” and not fatal); cf. Stevens ex rel. Stevens v. Hickman
Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 554–56 (Tenn. 2013) (noting that the statute requires substantial
compliance and holding plaintiff’s HIPPA authorization noncompliant when it failed to satisfy three of the six
requirements).
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(a)(2), (3), and (4) can be satisfied through substantial compliance. Arden v. Kozawa, 466 S.W.3d
758, 763 (Tenn. 2015). Despite less stringent standards for the contents of the pre-suit notice, the
requirement of pre-suit notice itself is still “‘fundamental,’ ‘mandatory,’ and ‘not subject to
satisfaction by substantial compliance.’” Thurmond v. Mid-Cumberland Infectious Disease
Consultants, PLC, 433 S.W.3d 512, 519 (Tenn. 2014) (quoting Myers, 382 S.W.3d at 309–10). In
its later order denying reconsideration, the district court concluded that Gilmore failed to meet the
substantial-compliance standard because it found she wholly failed to timely provide pre-suit
notice to the individual paramedic defendants.
The issue of whether each defendant received pre-suit notice has grown convoluted
throughout this case’s extensive procedural history. The district court, in its latest order, and the
defendants, on appeal, call it “undisputed” that Gilmore only provided pre-suit notice to Roane
County, and not to the individual paramedic defendants. DE 372, Mem. Op. & Order, Page ID
10098; CA6 R.18, Appellee Br., at 36. Yet it is unclear how this came to be so. Gilmore’s trial
counsel certified in the original complaint that he delivered timely notice personally to Roane
County officials, and “via certified mail to each individual defendant.” DE 1-1, Compl., Page ID
36 (emphasis added). He added that he received a return of receipt “on all but one” of the mailed
notices, implying that at least three of the four paramedic defendants properly received notice. Id.6
Nevertheless, Gilmore failed to establish compliance with the notice requirement, such as by
providing a certificate of mailing, in violation of § 29-26-121(a)(4).
Regardless of whether Gilmore provided notice to each defendant, it is clear that Gilmore
failed to provide HIPAA-compliant medical authorizations to the four paramedic defendants. The
6
In fact, none of the individual paramedic defendants in their motion for summary judgment even challenged their
actual receipt of notice. Rather, they argued that Gilmore’s pre-suit notice did not comply with certain statutory
requirements.
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failure to provide a HIPAA-compliant medical authorization is not fatal if the authorization
provided is “sufficient to enable defendants to obtain and review a plaintiff’s relevant medical
records.” Stevens, 418 S.W.3d at 555; see also Hamilton v. Abercrombie Radiological
Consultants, Inc., 487 S.W.3d 114, 122 (Tenn. Ct. App. 2014) (holding that plaintiff’s omission
of a date on her HIPAA authorization was a “minor shortcoming” and not fatal). Unless there is
only one named health care provider defendant, it is essential that the HIPAA authorization
identify “the person(s), or class of persons,” to whom medical records may be disclosed. 45 C.F.R.
§ 164.508(c)(1)(iii); see Bray v. Khuri, 523 S.W.3d 619, 624 (Tenn. 2017) (holding that a plaintiff
need not provide the statutorily required HIPAA-compliant medical authorization when the suit
only includes a single health care provider that is given pre-suit notice of a health care liability
claim); Wenzler v. Xiao Yu, No. W2018-00369-COA-R3-CV, 2018 WL 6077847, at *11 (Tenn.
Ct. App. Nov. 20, 2018) (holding that a HIPAA authorization does not substantially comply when
it does not identify any person or class of persons to whom medical records may be disclosed).
“[A] name is not required so long as there is specific identification of the entity, person, or class
of persons authorized to receive the protected health records.” Rush v. Jackson Surgical Assocs.
PA, No. W2016-01289-COA-R3-CV, 2017 WL 564887, at *4 (Tenn. Ct. App. Feb. 13, 2017).
Gilmore, in her HIPAA release form, authorized Roane County “and its affiliates, its
employees and agents” to release Barnwell’s pertinent medical records to “any Roane [County]
Agency.” DE 48-2, HIPAA Authorization, Page ID 298. Gilmore failed to identify any of the
individual paramedic defendants in the HIPAA release. Bray does not excuse Gilmore’s deficient
HIPAA release because, unlike Bray which involved only one named health care provider,
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Gilmore’s suit named multiple health care provider defendants.7 Gilmore’s omission of the
paramedic defendants was not a “minor shortcoming” like the omission of a date in Hamilton.
487 S.W.3d at 122. She failed to specifically identify the individuals authorized to receive the
relevant health records and thus did not substantially comply with the HIPAA release requirement.
Beyond her HIPAA release deficiencies, Gilmore’s pre-suit notice failed to comply with
several other statutory requirements. Subsection (a)(2)(D) requires that the notice include the
names and addresses of each health care provider being sent notice as a named defendant.
Gilmore’s notice letter does not. Subsections (a)(3)(B) and (a)(4) require that proof of service by
certified mail be filed with the complaint, along with an affidavit and copy of the notice. Neither
Gilmore’s complaint nor her separately-filed certificate of notice include the requisite postal
receipt or a copy of the notice letter itself. In fact, Gilmore’s amended complaint does not even
state its compliance with subsection (a), as required by subsection (b). Subsection (b) also requires
filing of the HIPAA authorization form required by subsection (a)(2)(E). While Gilmore provided
the HIPAA authorization with her notice letter, she failed to include such documentation in the
pleadings. These defects in the aggregate are beyond “[n]on-substantive errors and omissions,”
and Gilmore’s notice falls far shorter than permissible “less-than-perfect compliance.” Stevens,
418 S.W.3d at 555. Therefore, Gilmore did not satisfy the pre-suit notice requirement under Tenn.
Code Ann. § 29-26-121, and the district court correctly dismissed Gilmore’s THCLA claim.8
7
The THCLA’s definition for “health care provider” extends to “technicians . . . employed by a governmental health
facility.” Tenn. Code Ann. § 29-26-101(a)(2)(D). The paramedic defendants—Randle, Carter, Cooker, and Myers—
qualify as such.
8
To be clear, the district court dismissed her THCLA claim with prejudice. And dismissal without prejudice now
would have the practical effect of a dismissal with prejudice because Gilmore’s claims are barred by the applicable
statute of limitations and statute of repose. See Tenn. Code Ann. § 29-26-116(a)(1), (3) (prescribing a one-year
limitations period and a three-year repose period).
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2. Certificate of Good Faith Requirement
Under the THCLA, a plaintiff bringing a health care liability claim in which expert
testimony is required must file a certificate of good faith with the complaint. Tenn. Code Ann. §
29-26-122(a). Failure to file the certificate with the complaint mandates dismissal, with limited
exceptions. Id. The statute details the content that must be included in the certificate. See id. §
29-26-122(a)(1)–(2). Relevant here, the required content includes: (1) a disclosure by the plaintiff
of the number of (if any) prior violations of this statutory section by the plaintiff; and (2) a
statement that the plaintiff or plaintiff’s counsel has consulted with a competent expert who has
provided a signed written statement confirming that the expert believes, based on the available
medical records, that there is a good faith basis to maintain the action. Id. § 29-26-122(a)(1)(A)–
(B), (d)(4).
Whether Tennessee requires strict compliance with the good-faith certification
requirements of this section—or permits substantial compliance—has been a lingering question in
this court. In 2015, we certified the question to the Tennessee Supreme Court. Eiswert v. United
States (Eiswert I), 619 F. App’x 483 (6th Cir. 2015). After the Tennessee Supreme Court declined
to answer the certified question, this court remanded to the district court for consideration of
whether § 29-26-122 permits substantial compliance, in light of intervening cases. Eiswert v.
United States (Eiswert II), 639 F. App’x 345 (6th Cir. 2016). On remand, the district court
concluded that, based on Tennessee case law and the plain language of the statute, § 29-26-122
“cannot be satisfied by substantial compliance when the plaintiffs fail to file a certificate of good
faith along with the complaint.” Eiswert v. United States (Eiswert III), 322 F. Supp. 3d 864, 878
(E.D. Tenn. 2018). The district court did not hold that all aspects of this statutory section are
subject to strict compliance, but its reasoning supports that assumption until Tennessee courts
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resolve this question. See id. (noting that, because § 29-26-121 does not provide a penalty for
noncompliance and § 29-26-122 does, the court should presume that the Tennessee legislature
intended the sections to function under different standards and carry different sanctions).
Therefore, we must evaluate whether Gilmore’s good-faith certificate strictly complied with the
requirements of § 29-26-122.
The first alleged defect in Gilmore’s certificate is the nondisclosure of prior violations, if
any, of § 29-26-122 by Gilmore or her attorney, as required by subsection (d)(4). In Gilmore’s
original complaint, the certificate of good faith provided, in its entirety, “I hereby certified [sic]
that I have consulted with one or more experts who have provided a written statement that there is
a good faith basis to maintain this action.” DE 1-1, Compl., Page ID 35. In her amended
complaint, Gilmore tacked on the following statement in the certificate of good faith: “I have been
found in violation of [Tenn. Code Ann.] § 29-26-122 0 prior times.” DE 20, Am. Compl., Page
ID 162. While the latter certificate satisfies subsection (d)(4) on its face, the former is lacking.
But in 2015, the Tennessee Supreme Court held that the statute “does not require disclosure of the
absence of any prior violations of the statute.” Davis ex rel. Davis v. Ibach, 465 S.W.3d 570, 574
(Tenn. 2015) (emphasis omitted).9 Thus, under current law, Gilmore’s nondisclosure of her lack
of prior violations in the initial certificate of good faith is not fatal.
The second alleged defect in Gilmore’s certificate concerns subsection (a)(1)(A), which
requires a statement that an expert has been consulted and has provided a signed written statement
confirming that he or she is competent under Tenn. Code Ann. § 29-26-115 to express an opinion
in Gilmore’s case. Tenn. Code Ann. § 29-26-122(a)(1)(A).
9
The Tennessee Supreme Court reached this conclusion based on statutory interpretation, not substantial compliance.
See Davis, 465 S.W.3d at 574. We do not read Davis as suggesting that Tennessee has adopted a substantial-
compliance standard for meeting the requirements of Tenn. Code Ann. § 29-26-122.
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It is undisputed that Gilmore’s initial complaint was defective with respect to the expert
competency statement requirement. Gilmore argues that her amended complaint and second
certificate of good faith corrected any defects. Gilmore’s amended complaint attempted to add the
required statements under Tenn. Code Ann. § 29-26-122(a)(1)(A) and (d)(4). In its 2018 order
denying reconsideration, the district court concluded that dismissal was proper because Gilmore’s
“certificate was and remain[ed] deficient for its failure to strictly comply with § 29-26-
122(a)(1)(A), which requires confirmation that the expert consulted is competent to express an
opinion in the case.” DE 372, Mem. Op. & Order, Page ID 10101. The district court was correct
in that, “under the law as it currently stands, failure to include this provision subjects [Gilmore]’s
complaint to dismissal with prejudice” because that would not meet the strict-compliance standard.
Id. While Gilmore’s second certificate included a competency statement, the statement and
certificate still fell short of the mark. As the district court explained, “[a]lthough [Gilmore]’s
amended complaint included a more detailed certificate, counsel failed to check the appropriate
subsection to indicate the particular steps that counsel had taken to ensure that the action had a
good faith basis.” Id. at 10100 n.3.10 This fails to meet strict-compliance muster and justified the
district court’s dismissal with prejudice, according to the statutory directive. See Tenn. Code Ann.
§ 29-26-122(c).
Gilmore argues that, despite her failure to satisfy the good-faith certificate requirement of
Tenn. Code Ann. § 29-26-122, her claim should not have been dismissed for two reasons:
(1) Roane County failed to provide copies of medical records; and (2) the “common knowledge”
exception applied. Neither of these arguments has merit.
10
Gilmore’s second certificate explicitly includes an acknowledgement that “Failure to check item 1 or 2 and/or not
signing item 1 or 2 will make this case subject to dismissal with prejudice.” DE 20, Am. Compl., Page ID 161. Item
1 or 2 refers to alternative ways to satisfy the requirement for the expert competency statement.
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Case No. 18-5480, Estate of Barnwell v. Grigsby
First, Gilmore provides no explanation for how Roane County failed to timely provide
copies of Barnwell’s autopsy report and other records. She merely states that this exception should
apply and faults the “absence of findings of fact” by the district court on this issue. CA6 R. 15,
Appellant Br., at 39. The district court did not address this issue because Gilmore did not raise it
in the district court. In Gilmore’s response to the defendants’ motion for summary judgment on
her THCLA claims, she did not argue that the exception applied or even mention the provision of
medical records. Therefore, she has waived this argument.
Second, the whole of Gilmore’s argument for the applicability of the common knowledge
exception is that “it is within the common knowledge of a layman that no person should
purposefully shut down breathing lungs.” Id. at 40. Gilmore’s expert attested to the same in his
affidavit, explaining that “[t]here is no rational theory in the health sciences for paralyzing the
lungs” of a man who was able to breathe on his own and that this “is easily within the common
knowledge of the ordinary lay person.” DE 34, Perlaky Aff., Page ID 208. Outside these
conclusory statements, Gilmore provides no explanation of how the alleged negligence in
administering succinylcholine to Barnwell falls within the common knowledge of a layperson,
such that expert proof would not be required. Indeed, the plaintiff “in most medical negligence
cases must provide expert testimony to establish the required elements” of a THCLA claim.
Shipley v. Williams, 350 S.W.3d 527, 550 (Tenn. 2011). This is because “most medical claims
involve complicated and technical information which is beyond the general knowledge of a lay
jury.” Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 92 (Tenn. 1999). This is not
one of the rare cases that “typically involve unusual injuries such as a sponge or needle being left
in the patient’s abdomen following surgery or where the patient’s eye is cut during the performance
of an appendectomy.” Id. As such, the common knowledge exception is inapplicable and cannot
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Case No. 18-5480, Estate of Barnwell v. Grigsby
excuse Gilmore’s failure to comply with the good-faith certificate requirement of Tenn. Code Ann.
§ 29-26-122.
3. Extraordinary Cause for Noncompliance
The THCLA provides that the court has discretion to excuse a plaintiff’s failure to comply
with the procedural and filing requirements for extraordinary cause. Tenn. Code Ann. §§ 29-26-
121(b), 29-26-122(a). Whether Gilmore demonstrated extraordinary cause is a mixed question of
law and fact, and the panel’s review of that determination is de novo with a presumption of
correctness applying only to the trial court's findings of fact and not to the legal effect of those
findings. Myers, 382 S.W.3d at 307–08 (citing Starr v. Hill, 353 S.W.3d 478, 481–82 (Tenn.
2011)). “Tennessee courts have interpreted ‘extraordinary cause’ as ‘going beyond what is usual,
regular, common, or customary.’” Reed v. Speck, 508 F. App’x 415, 423 (6th Cir. 2012) (quoting
Myers, 382 S.W.3d at 311). These courts have also “equated ‘extraordinary cause’ with ‘excusable
neglect,’” but “forces within a party’s control will not substantiate a claim of excusable neglect.”
Id.
Before ruling on the defendants’ motions to dismiss and motion for summary judgment on
Gilmore’s THCLA claims, the district court ordered Gilmore’s attorney, John Wolfe, to submit an
affidavit demonstrating extraordinary cause to excuse Gilmore’s noncompliance with the statutory
requirements. Wolfe filed an affidavit that simply restated Gilmore’s theories of liability. It did
not offer any explanation of why Gilmore’s noncompliance with the statutory requirements should
be excused.11 The district court properly concluded that Gilmore failed to demonstrate
11
The only statement in the affidavit that resembles an attempt to show extraordinary cause is Wolfe’s assertion that
the defendants “have made it difficult to get records or interview witnesses.” DE 63, Wolfe Aff., Page ID 418.
Gilmore argues on appeal that this non-provision of records should constitute extraordinary cause. What Gilmore
never explains, however, is how the availability of such records affected her ability to comply with the pre-suit notice
requirement and good-faith certificate requirements of the THCLA.
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extraordinary cause, noting that “[i]nstead of providing new information for the Court’s
consideration, Plaintiff’s affidavit merely restates facts and allegations that are already contained
in the record.” DE 66, Mem. Order, Page ID 447.
We agree with the district court and hold that Gilmore failed to demonstrate extraordinary
cause to excuse her noncompliance with the THCLA requirements of pre-suit notice and certificate
of good faith. Gilmore has not shown why her noncompliance was due to excusable neglect or
something “beyond what is usual, regular, common, or customary.” Reed, 508 F. App’x at 423.
Before the district court dismissed her THCLA claims, Gilmore had ample opportunity to
demonstrate extraordinary cause. Yet, her attorney chose to simply restate the theories of liability
rather than offer any explanation for noncompliance. Therefore, we affirm the district court’s
decision to dismiss Gilmore’s claims with prejudice.
III.
A. Section 1983 Claim – Unlawful Restraint
The district court disposed of Gilmore’s § 1983 and state-law battery claims based on
unlawful restraint in its June 16, 2016 order granting partial summary judgment to the defendants.
The court concluded that Officers Grigsby and Stooksbury and paramedic Myers were entitled to
qualified immunity because they were not acting in a law-enforcement capacity and noted that,
even if they were, “the tactics used by [them] were objectively reasonable under the circumstances
and thus do not rise to the level of a Fourth Amendment violation.” DE 250, Mem. & Order, Page
ID 4324.
We review a district court’s order granting summary judgment de novo. Tysinger, 463
F.3d at 572. Summary judgment is proper if there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. The burden is
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Case No. 18-5480, Estate of Barnwell v. Grigsby
on the non-moving party to show that there is “sufficient evidence to create a genuine issue of
material fact.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). A dispute is
“genuine” when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the
grant of summary judgment, “[t]he court must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in its favor.” Id.Gilmore barely argues the viability of her § 1983 unlawful-restraint claim and related
battery claim. Instead, she attacks the district court’s treatment of the facts at summary judgment.
As explained below, the district court did not improperly view the facts for the purpose of deciding
the defendants’ motion for summary judgment. Further, the law is clear that the individual
defendants are entitled to qualified immunity, regardless of the alleged factual dispute. The
viability of Gilmore’s battery claim—based on the same conduct as her § 1983 claim—directly
depends on the survival of her § 1983 unlawful-restraint claim. Therefore, we affirm the district
court’s grant of summary judgment and dismissal of her § 1983 unlawful-restraint and related
state-law battery claim.
On appeal, Gilmore argues that the district court did not employ the proper standard for
summary judgment.12 In two paragraphs supporting this argument, Gilmore cites only a single
case, and it simply stands for the general proposition that “courts may not resolve genuine disputes
of fact in favor of the [movant].” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). Gilmore argues
that the parties propounded “two contrasting versions” of the events surrounding the restraint of
12
In her brief, Gilmore alleges two errors in the district court’s grant of summary judgment on her unlawful-restraint
claim. One of her arguments, though, was the district court’s “bifurcation of the facts” between those giving rise to
the unlawful restraint claim and those surrounding the administration of succinylcholine. This argument occupies a
single paragraph and includes not a single citation to legal authority. Because the district court appropriately
considered those facts giving rise to the unlawful-restraint claim, we see no merit in this argument and do not address
it further.
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Barnwell and that the district court adopted the defendants’ version. Gilmore does not explain
what these “contrasting versions” are. She quotes a summary of the facts13 from the district court’s
order and instructs this court to “[c]ompare this version to that of Gilmore, her mother, and two of
Barnwell’s friends that is examined in detail above.” CA6 R. 15, Appellant Br., at 41–42.
Presumably, Gilmore is referring to Turner’s and her own statements denying Barnwell’s
combativeness. We need not address this argument, however, because Gilmore presented no
admissible evidence that the defendants acted in a law-enforcement capacity—or with a punitive
purpose—when they restrained Barnwell.
As the district court noted in its order denying reconsideration and as Gilmore herself
recognizes in her brief, the defendants’ entitlement to qualified immunity turns on whether they
restrained Barnwell in order to punish or incarcerate him or in order to assist the paramedics in
their provision of emergency medical care. This is because “whether the [defendants are] entitled
to qualified immunity depends on whether they acted in a law-enforcement capacity or in an
emergency-medical-response capacity when engaging in the conduct that” was allegedly violative
of Barnwell’s constitutional rights. McKenna v. Edgell, 617 F.3d 432, 439–40 (6th Cir. 2010).
And there is no clearly established right to be free from unintentional, invasive medical care
provided by a defendant-officer acting in an emergency-medical-response capacity. Roth v.
Viviano, 704 F. App’x 548, 551 (6th Cir. 2017).
In Peete v. Metropolitan Government of Nashville, the plaintiff brought a § 1983 claim
against firefighters and paramedics alleging that they used excessive force in restraining the
decedent when responding to a 911 call. 486 F. 3d 217, 219 (6th Cir. 2007). This court noted that
13
The excerpt from the district court’s June 16, 2016 order describes the defendants’ arrival to Barnwell’s house
following Gilmore’s 911 call. The court noted that the officers found Barnwell “combative” after trying to wake him.
The court noted the officers’ takedown of Barnwell and Myers’s assistance in restraining Barnwell so that he could
be handcuffed and treated by the paramedics. DE 250, Mem. & Order, Page ID 4321.
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“[t]he result must turn on the specific purpose14 and the particular nature of the conduct alleged in
the complaint.” Id. at 220 (emphasis added). The plaintiff did not present any evidence, or even
allege, that the defendants “acted purposely to harm” the decedent. Id. This court held that the
defendants did not seize the decedent when they restrained him in order to administer emergency
medical treatment and thus did not violate clearly established law. Id. at 219. To be sure, “where
the purpose is to render solicited aid in an emergency rather than to enforce the law, punish, deter,
or incarcerate, there is no federal case authority creating a constitutional liability for the
negligence, deliberate indifference, and incompetence alleged in the instant case.” Id. at 221.
Like the defendants in Peete, the paramedic and officers who restrained Barnwell “did not
unreasonably seize him for the purpose of interfering with his liberty” and “were not acting to
enforce the law, deter or incarcerate.” Id. at 222. Rather, Stooksbury, Grigsby, and Myers held
Barnwell down and handcuffed him because he was resisting their attempts to help him in a
medical emergency. True, the court in Peete noted that the decedent’s unconscious state was
relevant to the seizure inquiry because he was unaware of any interference with his liberty. Id. at
220–21. Central to the Peete holding, however, is the lack of a punitive purpose. Id.In McKenna, we held that a defendant-officer’s entitlement to qualified immunity depends
on whether the officer acted in a law-enforcement capacity or emergency-medical response
capacity, which is an objective inquiry. 617 F.3d at 439–40 (“It is not relevant . . . whether [the
officers] had a law-enforcement or a medical-response intent; the focus must be on what role their
actions reveal them to have played.”) We also held that this objective characterization of the
defendant’s role is a jury question. Id. at 441.
14
The Sixth Circuit later clarified Peete’s holding and explained that determining a defendant’s “purpose” must be an
objective inquiry. McKenna, 617 F.3d at 440. Indeed, the analysis must focus on a defendant’s objective function,
purpose, or capacity. Id.- 21 -
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Even if the question were not reserved for the jury, the McKenna court concluded that the
defendants were not entitled to qualified immunity because, based on the objective facts, the
defendants acted in a law-enforcement capacity. Id. at 443. Notably in that case, the defendant-
officers (1) restrained the plaintiff despite being “[c]ompletely unprovoked by any aggressive or
dangerous behavior,” (2) searched the house after the plaintiff was taken to the hospital, (3) ran a
check on the plaintiff’s vehicle registration, and (4) questioned others present about the plaintiff’s
possible drug use and domestic violence. Id. In its objective analysis of the officers’ conduct, the
court found that “[a]ll together, their treatment of [the plaintiff] was consistent with their treatment
of a criminal suspect.” Id. at 444. That is to say, the officers acted in a law-enforcement capacity
and were thus not entitled to qualified immunity.
Here, however, the evidence clearly indicates that the defendants’ conduct served a
medical-emergency function, rather than a law-enforcement function. The paramedics requested
that Stooksbury and Grigsby place Barnwell in handcuffs so that they could better treat Barnwell.
In contrast, the defendants in Roth handcuffed the plaintiff even though the plaintiff was already
strapped into a stretcher and the paramedics did not ask the officers to handcuff him. 704 F. App’x
at 553. Additionally, the defendants in the instant case did not search Barnwell’s house, which
would be indicative of an investigatory purpose and a “law-enforcement posture.” McKenna, 617
F.3d at 444. The defendants did inquire repeatedly about Barnwell’s drug use, which can be
“equally suggestive” of an emergency-medical-assistance function as a law-enforcement function.
Id. Here, the officers’ and paramedic’s questions about Barnwell’s drug use look more like the
former. Unlike the defendants in McKenna who responded to a 911 call about a seizure, the
defendants in the case at bar were responding to Gilmore’s call that specifically indicated
Barnwell’s possible drug overdose.
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While the determination of the capacity in which the defendants acted when restraining
Barnwell is a “jury question” according to McKenna, the district court did not err in granting
summary judgment. Gilmore presented no admissible or probative evidence that the defendants
restrained Barnwell for punitive purposes or in a law-enforcement capacity, so there was no
genuine dispute as to that critical, material fact. See Tolan, 134 S. Ct. at 1863. Gilmore alleges
that Cooker had previously acted in a punitive manner toward other Roane County EMS patients,
but that is irrelevant for several reasons. First, Gilmore’s unlawful-restraint claim only pertains to
the conduct by Stooksbury, Grigsby, and Myers. Second, that allegation does not bear on the
purpose of the defendants’ conduct in restraining Barnwell on November 11, 2011. Gilmore also
proffered evidence of previous interactions between Barnwell and Stooksbury. Her evidence of
two such interactions is inadmissible hearsay,15 and her own recollection of one exchange16 does
not indicate that Stooksbury acted with a punitive purpose in restraining Barnwell on the night in
question.
In our analysis of the defendants’ conduct pertaining to the restraint of Barnwell, there is
no evidence or facts indicating that they acted in a law-enforcement role or with a punitive purpose,
and Gilmore’s mere speculation is insufficient to create a genuine dispute and withstand summary
judgment. Viewing the facts in the light most favorable to Gilmore and drawing reasonable
inferences in her favor, the defendants are entitled to qualified immunity, and the district court’s
decision to grant summary judgment was proper.
15
Gilmore submits Sweat’s statements about what Barnwell told him concerning an interaction between Barnwell and
Stooksbury while Barnwell was incarcerated. She also submits statements by a former Roane County paramedic,
Karen Human, about what Barnwell told her concerning Stooksbury.
16
Gilmore testified that, two years prior to Barnwell’s death, Stooksbury stopped Barnwell’s car, pulled his gun on
Barnwell and Gilmore, and then let them go.
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Because Gilmore’s § 1983 unlawful-restraint claim fails, so too must her state-law battery
claim arising from the same event. “Where a plaintiff asserts a battery claim under Tennessee law
that arises out of the same use of force as her § 1983 excessive-force claim, the analysis is the
same for both causes of action.” Griffin v. Hardrick, 604 F.3d 949, 956 (6th Cir. 2010). That is
to say, a defendant entitled to summary judgment on a plaintiff’s § 1983 claim is also entitled to
summary judgment on the related state-law battery claim. Id. at 957. Therefore, we affirm the
district court’s decision to dismiss both the § 1983 claim and the battery claim based on the
defendants’ restraint of Barnwell.
B. Section 1983 Claim – Excessive Force
On the third day of trial, the district court granted judgment as a matter of law and disposed
of Gilmore’s § 1983 and state-law battery claims based on excessive force through the
administration of succinylcholine. The court concluded that Grigsby, Stooksbury, Randle, and
Cooker were entitled to judgment as a matter of law because Gilmore did not “produce[] enough
evidence within [her] case in chief to support a reasonable finding in [her] favor.” DE 366, Trial
Tr. Vol. III, Page ID 9987. Specifically, the court noted that Gilmore had offered no proof that
Grigsby and Stooksbury played any role in the paramedics’ administration of succinylcholine.
There was no evidence that the officers asked or ordered the paramedics to give Barnwell the
paralytic. The court also found that Gilmore offered no proof that Randle and Cooker—the
paramedics who actually administered the drug—were acting in a law-enforcement capacity.
In reviewing a motion for judgment as a matter of law, we employ the same standard as
the district court. Tuck v. HCA Health Servs. of Tenn., Inc., 7 F.3d 465, 469 (6th Cir. 1993) (citing
Hunt v. Coynes Cylinder Co., 956 F.2d 1319, 1328 (6th Cir. 1992)). Under this standard, we view
the evidence in the light most favorable to the non-moving party, giving that party the benefit of
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all reasonable inferences. Id. “A motion for a judgment as a matter of law should be granted
whenever there is a complete absence of pleading or proof on an issue material to the cause of
action or when no disputed issues of fact exist such that reasonable minds would not differ.” Id.As a threshold matter, Gilmore wholly fails to support her appeal of the district court’s
grant of judgment as a matter of law. Gilmore provides no argument as to why the district court
erred, so the panel should deem this issue waived. See Puckett v. Lexington-Fayette Urban Cty.
Gov’t, 833 F.3d 590, 610–11 (6th Cir. 2016) (“To preserve an issue for appellate review, a party
is required to address the issue in its appellate briefing.”); Cruz-Samayoa v. Holder, 607 F.3d 1145,
1154–55 (6th Cir. 2010) (holding that an issue not raised in an opening brief is deemed waived);
Middlebrook v. City of Bartlett, 103 F. App’x 560, 562 (6th Cir. 2004) (“The failure to present an
argument in an appellate brief waives appellate review.”) (citations omitted). See also Fed. R.
App. P. 28(a)(8)(A) (requiring a brief’s argument to contain the “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which the appellant
relies”).
In her principal brief, Gilmore summarily states that “[t]here was excessive force and
battery in the administration of a paralytic drug to Barnwell, implicating Officers Stooksbury and
Grigsby and EMTs Cooker and Randle.” CA6 R. 15, Appellant Br., at 28. That statement
constitutes the entirety of her § 1983 excessive-force argument on appeal. In fact, Gilmore’s brief
does not even include an argument section pertaining to her excessive-force claim. She does not
argue that judgment as a matter of law was improper, let alone provide any contentions or citations
to authority to support such an argument. Her reply brief does not rectify this fatal mistake.
“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument
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in the most skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey,
125 F.3d 989, 995–96 (6th Cir. 1997) (alteration in original) (quoting Citizens Awareness Network,
Inc. v. United States Nuclear Regulatory Comm’n, 59 F.3d 284, 293–94 (1st Cir. 1995)).
This is precisely what Gilmore has done with respect to her § 1983 excessive-force claim
and related state-law battery claim. Gilmore’s single assertion that “[t]here was excessive force
and battery in the administration of a paralytic drug to Barnwell” is perfunctory and skeletal, at
best. CA6 R. 15, Appellant Br., at 28. After six years of litigation, Gilmore inexplicably omits a
central claim in her case and the only claim to actually make it to trial. Because Gilmore has failed
to “provide even a modicum of legal argument as to why the district court erred,” Cooper v.
Commercial Sav. Bank, 591 F. App’x 508, 509 (6th Cir. 2015), we deem this issue waived and
need not reach the merits.
V.
On appeal, Gilmore claims a violation of her Fifth Amendment due process rights based
on the district court’s refusal to allow her to testify. At trial, the district court examined Gilmore’s
ability to speak from the witness stand and determined that she was “unavailable” for purposes of
Fed. R. Civ. P. 32. In relevant part, Rule 32 provides that “[a] party may use for any purpose the
deposition of a witness, whether or not a party, if the court finds: . . . that the witness cannot attend
or testify because of age, illness, infirmity, or imprisonment.” Fed. R. Civ. P. 32(a)(4)(C).
We review a district court’s unavailability determination under Fed. R. Civ. P. 32 for abuse
of discretion. Bickel v. Korean Air Lines Co., Ltd., 96 F.3d 151, 154 (6th Cir. 1996). Deference
is the hallmark of the abuse-of-discretion standard, and we may not disturb the district court’s
ruling unless it “was arbitrary, unjustifiable or clearly unreasonable.” Hardyman v. Norfolk & W.
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Case No. 18-5480, Estate of Barnwell v. Grigsby
Ry. Co., 243 F.3d 255, 258, 267 (6th Cir. 2001) (quoting Plain Dealer Publ’g Co. v. City of
Lakewood, 794 F.2d 1139, 1148 (6th Cir. 1986)).
Gilmore apparently lost her voice on the eve of trial. Yet, instead of requesting a
continuance, her attorney proposed the reading of Gilmore’s deposition testimony in lieu of live
testimony. The district court evaluated Gilmore’s ability to speak and found it difficult, if not
impossible, to hear her. Gilmore’s own attorney submitted that he was “having a hard time hearing
what [Gilmore]’s saying.” DE 364, Trial Tr. Vol I., Page ID 9554. The district court made an
initial determination that Gilmore was “unavailable” under Fed. R. Civ. P. 32, to which Gilmore’s
attorney did not object. The court delayed the reading of Gilmore’s deposition until the next day
to provide Gilmore a chance to recover and find her voice.17 The court explained its decision as
follows:
The Court: Hopefully your voice will be much better and you’ll be able to speak
clearly enough that we can all hear you. If not, then you will have the
choice of entering the deposition testimony . . . . You can go to another
witness and hope that her voice recovers before your -- close of your
proof.
Id. at 9564. And on day 2 of trial:
The Court: So are we going to begin by reading [Gilmore’s] deposition?
Mr. Wolfe: Yes, Your honor.
The Court: Okay. So I can explain that to the jury that [Gilmore]’s voice is still
fragile and she’s not going to be able to testify. Correct?
Mr. Wolfe: Yes, Your Honor. That’s correct.
17
The district court explained as follows:
On Monday, your own client was late getting here. We had to wait to begin anything until she
arrived. Then we had the problem with her voice. We spent a great deal of time . . . discussing what
to do because she couldn’t testify. I let her try. It was not feasible for her to talk in a way that would
produce a record and allow the jury and everybody in this room to understand her. I gave her
overnight until Wednesday morning to see if she could possibly talk then.
DE 366, Trial Tr. Vol. III., Page ID 9938.
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DE 365, Trial Tr. Vol. II., Page ID 9594–95. Gilmore’s other attorney, Whitney Durand, then
took the stand and read the agreed-upon portions of Gilmore’s deposition testimony. At the close
of Gilmore’s case-in-chief, Gilmore did not request to testify, as the district court had previously
noted it would allow.
On appeal, Gilmore argues that, despite a paucity of authority supporting her position, “the
concept of fair play comes into helpful focus when a party seeks to exclude another party from
appearing in the courtroom, from testifying, or both.” Gilmore cites one Sixth Circuit case and
three state supreme court cases which have no bearing on whether Gilmore was denied due process
when the district court found her unavailable, as she herself proposed. See Helminski v. Ayerst
Labs., 766 F.2d 208, 216–17 (6th Cir. 1985) (holding that exclusion of a litigant from the
courtroom must comport with due process); Kesterson v. Jarrett, 728 S.E.2d 557, 564 (Ga. 2012)
(holding that a child could not be excluded from her own trial unless the opposing party could
show waiver, prejudice, or extreme circumstances); Jordan ex rel. Jordan v. Deery, 778 N.E.2d
1264, 1272 (Ind. 2002) (same); Cary ex rel. Cary v. Oneok, Inc., 940 P.2d 201, 204 (Okla. 1997)
(same). For two obvious reasons, these cases are irrelevant. First, the defendants here did not
request a finding of Gilmore’s unavailability; she did. Second, the district court did not exclude
Gilmore from the courtroom or the witness stand. The district court gave Gilmore ample
opportunity to testify, which she repeatedly declined.
We find that the district court did not abuse its discretion in determining—on Gilmore’s
own motion—that she was unavailable under Fed. R. Civ. P. 32. Thus, Gilmore was not denied
her Fifth Amendment right to testify.
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VI.
Lastly, Gilmore brings a Seventh Amendment challenge based on the district court’s entry
of judgment as a matter of law. The Seventh Amendment protects the right of a litigant to a trial
by jury, unless his or her claims can be determined as a matter of law. Rhea v. Massey-Ferguson,
Inc., 767 F.2d 266, 268–69 (6th Cir. 1985). The grant of judgment as a matter of law before a case
is submitted to the jury does not necessarily violate the Seventh Amendment. See Weisgram v.
Marely Co., 528 U.S. 440, 449–50 (2000). It will contravene the Seventh Amendment’s guarantee
of trial by jury only if, after a party has been fully heard, there remains a legally sufficient basis
for a jury to find for the party on that issue. Id.After three days of trial, the district court found that the defendants’ entitlement to qualified
immunity resolved the ultimate issue in the case: whether administration of succinylcholine to
Barnwell constituted constitutionally-impermissible excessive force. The district court properly
viewed the evidence in the light most favorable to Gilmore and found that there was no legally
sufficient basis for a reasonable jury to find for Gilmore on the ultimate issue in the case.
Therefore, we find no violation of Gilmore’s Seventh Amendment right to trial by jury.
VII.
For the foregoing reasons, we affirm.
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