Lester Gayton v. Michael McCoy ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2187
L ESTER G AYTON,
Plaintiff-Appellant,
v.
M ICHAEL D. M C C OY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CV 1354—Byron G. Cudmore, Magistrate Judge.
A RGUED M AY 7, 2009—D ECIDED JANUARY 28, 2010
Before
FLAUM and W ILLIAMS, Circuit Judges, and
LAWRENCE, District Judge.Œ
W ILLIAMS, Circuit Judge. India Taylor, a thirty-four-year-
old recent college graduate, entered Peoria County Jail
on October 15, 2003 complaining of chest pain. Despite
Œ
The Honorable William T. Lawrence, United States District
Court Judge for the Southern District of Indiana, sitting by
designation.
2 No. 08-2187
knowledge that Taylor had a serious heart condition and
elevated blood pressure, she was never provided with
any medication and, against the jail’s written protocol, a
doctor was never contacted to examine her. Less than
three days later, she was dead due to non-specific heart
failure brought on by an elevated pulse. Her estate’s
executor brought suit against the three nurses who exam-
ined Taylor, claiming that they violated her due
process rights by failing to provide her with adequate
medical care. The plaintiff also brought suit against a
variety of prison officials, claiming that inadequate
prison medical policies contributed to Taylor’s untimely
death.
The district court excluded the plaintiff’s expert
witness, Dr. Corey Weinstein, finding that he was unquali-
fied and that his opinions were not reliable. It also
granted summary judgment to the defendants after
determining that none of them exhibited a deliberate
indifference to a serious medical need of Taylor’s.
Because Dr. Weinstein conceded that he has no specific
training or education regarding the short-term efficacy of
Taylor’s heart medications, we affirm the district court’s
exclusion of his opinion that she might have survived
if prison officials had provided her with these medica-
tions in the days before her death. However, Dr.
Weinstein’s medical training, examination of Taylor’s
medical records, and use of differential diagnosis
support his conclusion that the nurses’ failure to
quell Taylor’s vomiting could have led to her
tachycardia, and his opinion on this issue should have
been admitted. Likewise, his examination of the record
No. 08-2187 3
in this case coupled with being one of the leading experts
on prison medical care support his conclusion that the
jail officials did not provide Taylor with the minimum
standard of prison medical care expected in this country,
and to the extent that it remains relevant at trial, it
should be admitted.
The district court was correct that, as the plaintiff
conceded at oral argument, the prison’s medical policies
were adequate and therefore did not contribute to
Taylor’s death. So, the district court properly awarded
summary judgment to Peoria County, Advanced Correc-
tional Healthcare, Inc., and the individual defendants
who did not have contact with Taylor during her incar-
ceration. As to the nurses, although she failed to follow
prison protocol in treating Taylor, Nurse Olivia Radcliff
took steps to obtain Taylor’s cardiac medications and
put a note in Taylor’s file to have her seen by a doctor if
the medications were not delivered. So, it cannot be
said that she acted with deliberate indifference, and the
district court correctly granted summary judgment
in her favor. Taylor visited Nurse Patricia Mattus com-
plaining of nausea, and, because she thought Taylor
was drug seeking, Nurse Mattus did not provide Taylor
with any medication, put her on the sick call list, and sent
her back to her cell. Because Taylor did not complain
of chest pain during the visit, however, Nurse Mattus
was not faced with a serious medical need that required
immediate treatment. So, the district court properly
granted summary judgment in her favor.
On the other hand, Nurse Pam Hibbert was presented
with ample evidence that Taylor needed medical treat-
4 No. 08-2187
ment. While participating in a video-bond hearing, Taylor
began to vomit. The guards were so concerned about
Taylor’s condition that they collected her vomit in a bag
and immediately called Nurse Hibbert requesting that
she examine Taylor. Nurse Hibbert knew about Taylor’s
heart condition, and if per prison protocol, she examined
Taylor’s chart, she would have seen that her cardiac
medications should have been delivered, that she had
recently complained of chest pain, that she had high
blood pressure less than twenty-four hours earlier, and
that she should have already been examined by a doc-
tor. But instead of calling a doctor or examining Taylor,
Nurse Hibbert concluded that Taylor was drug seeking,
and told the guards that her shift was coming to an end.
Based on these facts, a jury could find that Nurse
Hibbert was deliberately indifferent to Taylor’s serious
medical need, and that Nurse Hibbert’s inaction caused
Taylor to suffer harm. Therefore, we reverse and
remand this matter for trial against Nurse Hibbert.
I. BACKGROUND
In April 2003, thirty-four-year-old India Taylor’s
doctors diagnosed her with congestive heart failure
(“CHF”). CHF is a serious heart condition characterized
by a swelling on the lining surrounding the heart,
which weakens the heart and impairs the heart’s ability to
pump blood to the body’s organs. Taylor’s doctors pre-
scribed a regimen of six medications, generally consisting
of diuretics and ACE inhibitors. They also informed
her that she had a mortality risk of forty to sixty percent
No. 08-2187 5
if she failed to take her medications on a consistent
basis, but less than ten percent if she took them as in-
structed. Over the course of the next few months, Taylor
took her medications sporadically and missed several
doctors’ appointments.
On July 1 and July 17, 2003, respectively, Taylor was
arrested. During both arrests, Taylor complained of chest
pain and was transported to the emergency room. Both
times, doctors provided her with her prescribed CHF
medications, after which she was taken to Peoria County
Jail (“PCJ”). When Taylor arrived at PCJ on July 2, 2003,
Nurse Patricia Mattus made contact with Taylor’s
doctors to ascertain her medical history. This history and
a list of Taylor’s necessary medications became a part of
Taylor’s medical records at PCJ. During her second incar-
ceration, Taylor vomited violently as a result of heroin
withdrawal. The medical staff treated her with Donnatal
(to calm her nausea) and Vistaril (a sleep aid).
On July 20, 2003, the day after she was released from
her second detention at PCJ, Taylor went to the emer-
gency room complaining of chest pain. She presented
with an elevated blood pressure, and her doctors pre-
scribed thirty days’ worth of CHF medications with an
additional refill. Walgreens’s records show that she
filled these prescriptions shortly after she was released
from the emergency room.
On August 2, 2003, Taylor was arrested again. This
time she had her medications with her. Dr. Norman
Johnson, a prison physician, examined her and recom-
mended that she continue taking her CHF medications
6 No. 08-2187
while incarcerated. Dr. Johnson is employed as president
and CEO of Advanced Correctional Healthcare, Inc., a
private, for-profit company that provides medical care
in prisons, including PCJ. During Taylor’s month-
long incarceration at PCJ, she did not suffer from heroin
withdrawal and did not vomit. She was released on
August 28, 2003.
October 15, 2003, Taylor was arrested again and
detained at PCJ. During the booking process, she com-
plained of chest pain. After she was processed, the guards
took her to medical intake. During intake, Nurse Olivia
Radcliff examined Taylor. Taylor completed a medical
questionnaire, on which she listed her treating physician
and medications. Nurse Radcliff acknowledged that the
jail had copies of Taylor’s medical records and knew of
the medications that she was prescribed to treat her
CHF. The back of the form, on which the nurse was
supposed to record her observations and findings, has
never been found.
Nurse Radcliff checked Taylor for head lice but did not
take her vital signs. Taylor called her brother, Lester
Gayton, and asked him to refill her medications and
bring them to PCJ. Nurse Radcliff made a note on
Taylor’s chart that if the medications were not brought
to the prison by the following day, Taylor was to be seen
by Dr. Johnson.
Gayton could not retrieve Taylor’s prescriptions due
to complications with her insurance, but failed to
inform the jail that he would not be delivering the med-
ications. Around 4:30 A.M. the next morning (October 16),
No. 08-2187 7
Taylor complained to the guards of nausea and told them
that she was suffering from heroin withdrawal. The
guards saw her vomit and took her to see Nurse Mattus.
Taylor requested drugs to help her stop vomiting, but
Nurse Mattus concluded that Taylor must have forced
herself to vomit in order to receive drugs and refused
to provide her with medication to reduce her vomiting.
Nurse Mattus also claimed that she was unable to take
Taylor’s vitals and sent her back to her cell after putting
her on the sick call list to be seen later that morning.
Around 9 A.M. that same morning, Nurse Pam Hibbert
saw Taylor during PCJ’s sick call. Taylor’s blood pressure
was elevated and she complained of nausea. Nurse
Hibbert sent Taylor back to her cell. During Taylor’s
video-bond hearing at 3 P.M., Taylor vomited violently.
The guards were worried about her condition. They
collected her vomit in a plastic bag and called Nurse
Hibbert. Nurse Hibbert told the guards that she thought
Taylor was seeking drugs, refused to allow the guards
to bring Taylor in for an examination, and stated that
Taylor should just fill out a sick request form in order to
be seen by the next nurse because Hibbert’s shift was
almost over (Nurse Mattus took over at 8 P.M.). The
officers took the sick request form to Taylor and helped
her fill it out. Taylor said she was feeling better, but
she completed the form, which the guards submitted
for her at 7:40 P.M. This request form was also never
found. One of the officers filed a jail incident report
against Nurse Hibbert because she thought that Nurse
Hibbert ignored a significant medical complaint.
8 No. 08-2187
Taylor was on the list of prisoners to be seen by
Dr. Johnson the next morning. However, sometime before
3:40 A.M. on the morning of October 17, Taylor died.
Taylor’s brother and administrator of her estate, Lester
Gayton, initiated this wrongful death action pursuant to
42 U.S.C. § 1983 against the Sheriff who administers
PCJ, PCJ’s superintendent, Advanced Correctional
Health Care, the three nurses who examined Taylor, and
Dr. Johnson.
There are three medical opinions at issue in this case.
Dr. Brian Mitchell, a pathologist at the coroner’s office,
concluded that Taylor died of heart failure. The defen-
dants’ expert, Dr. Kreigh Moulton, a board-certified
cardiologist, testified that Taylor died of heart failure as
a result of “sustained ventricular tachyarrhythmia in the
setting of a chronic nonischemic cardiomyopathy.”
“Tachyarrhythmia” or “tachycardia” simply refers to a
pulse that reaches over 100 beats per minute. Essentially,
Dr. Moulton concluded that Taylor had a weak heart,
her pulse elevated while in prison, and her heart failed for
non-specific reasons. Dr. Corey Weinstein, the plaintiff’s
expert, adopted the other two experts’ cause of death
findings and opined that: (1) had Taylor been given her
cardiac medications while in prison, she might still
be alive; (2) the combination of Taylor’s vomiting
and diuretic medications could have caused electrolyte
imbalances (due to depleted potassium levels), which
could have led to her tachycardia and then her heart
failure; and (3) prison medical officials departed from
accepted standards of prison medical care in their treat-
ment, or lack thereof, of Taylor. Dr. Moulton refuted
No. 08-2187 9
Dr. Weinstein’s findings and concluded that: (1) Taylor’s
cardiac medication would not have prevented her death;
and (2) although severe vomiting could contribute
to tachyarrhythmia, it would take almost a full day of
vomiting before her electrolyte levels were sufficiently
depleted to do so.
The district court excluded Dr. Weinstein’s testimony
and entered summary judgment for the defendants,
finding that the plaintiff failed to show proximate causa-
tion or that any defendant acted indifferently to a
serious medical need. The plaintiff now appeals.
II. ANALYSIS
A. The Exclusion of Dr. Weinstein’s Testimony
Federal Rule of Evidence 702 allows an expert witness
to testify about a relevant scientific issue in contention
if his testimony is based on sufficient data and is the
product of a reliable methodology correctly applied to the
facts of the case. Under the Daubert framework, the
district court is tasked with determining whether a
given expert is qualified to testify in the case in question
and whether his testimony is scientifically reliable.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93
(1993). “Whether a witness is qualified as an expert can
only be determined by comparing the area in which the
witness has superior knowledge, skill, experience, or
education with the subject matter of the witness’s testi-
mony.” Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th
Cir. 1990). In determining reliability, Daubert sets
forth the following non-exhaustive list of guideposts:
10 No. 08-2187
(1) whether the scientific theory can be or has been tested;
(2) whether the theory has been subjected to peer review
and publication; and (3) whether the theory has been
generally accepted in the scientific community. Daubert,
509 U.S. at 593-94. The court should also consider the
proposed expert’s full range of experience and training in
the subject area, as well as the methodology used to
arrive at a particular conclusion. Smith v. Ford Motor Co.,
215 F.3d 713, 718 (7th Cir. 2000). We give the district court
latitude in determining not only how to measure the
reliability of the proposed expert testimony but also
whether the testimony is, in fact, reliable, Jenkins v.
Bartlett, 487 F.3d 482, 489 (7th Cir. 2007), but the court
must provide more than just conclusory statements of
admissibility or inadmissibility to show that it adequately
performed its gatekeeping function. Naeem v. McKesson
Drug Co., 444 F.3d 593, 608 (7th Cir. 2006). Determinations
on admissibility should not supplant the adversarial
process; “shaky” expert testimony may be admissible,
assailable by its opponents through cross-examination. See
Daubert, 509 U.S. at 596. We review de novo whether the
court correctly applied Daubert’s framework, and we
review the court’s decision to admit or exclude expert
testimony for abuse of discretion. Kunz v. DeFelice, 538
F.3d 667, 675 (7th Cir. 2008).
In this case, the district court found that:
(1) Dr. Weinstein was not qualified 1 to testify regarding
1
Dr. Weinstein’s qualifications include, among other things: a
medical degree from the University of Illinois College of
(continued...)
No. 08-2187 11
Taylor’s “cause of death”; and (2) the methodology he
used to arrive at his conclusions was not sufficiently
reliable. The district court reasoned that Dr. Weinstein
was not qualified to opine on Taylor’s cause of death
because he was neither a cardiologist nor pharmacologist,
had no specific expertise on heart disease, and did not
possess any training regarding the interactions of Taylor’s
prescriptions and tachycardia. In its analysis, the district
court made a fundamental mistake in characterizing
Dr. Weinstein’s testimony as “cause of death” testimony.
Dr. Weinstein did not testify as to what caused Taylor’s
death. All three experts agreed that Taylor died as a
result of nonspecific heart failure due to an increased
heart rate, the cause of which cannot be known for cer-
tain. Dr. Weinstein did not dispute this. Instead, he offered
his opinion that Taylor’s death could have been prevented
if: (1) she had been given her CHF medications; (2) she had
been treated to stop her vomiting; or (3) she had received
adequate medical treatment from the medical professionals
at PCJ. Dr. Weinstein’s qualifications for making, and
methodology in reaching, each of these conclusions must
be separately examined.
1
(...continued)
Medicine (1969), treating patients as a general practitioner for
over thirty years, spending a significant amount of his time
consulting on medical care in prisons, many prior legal con-
sultations regarding prison medical care, certification by the
National Commission on Correctional Health Care, member-
ship in the American Public Health Association, being
Chairman of the Jail and Prison Health Committee, and mem-
bership in the International Human Rights Committee.
12 No. 08-2187
Before turning to Dr. Weinstein’s individual conclu-
sions, it is important to address the district court’s assump-
tion that Dr. Weinstein needed to have specific cardiac
training to testify as an expert in a case involving a
heart-related death. True, simply because a doctor has a
medical degree does not make him qualified to opine on
all medical subjects. See Carroll, 896 F.2d at 212. That
said, courts often find that a physician in general practice
is competent to testify about problems that a medical
specialist typically treats. 29 Wright & Gold, Federal
Practice and Procedure, § 6265 (1997); see Doe v. Cutter
Biological, Inc., 971 F.2d 375, 385 (9th Cir. 1992) (“The
fact that the experts were not licensed hematologists
does not mean that they were testifying beyond their
area of expertise. Ordinarily, courts impose no require-
ment that an expert be a specialist in a given field, al-
though there may be a requirement that he or she be of a
certain profession, such as a doctor.”); see also Dickenson
v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976,
978-79 (6th Cir. 2004); United States v. Viglia, 549 F.2d 335,
336 (5th Cir. 1977) (holding that a pediatrician who
had degrees in medicine and pharmacology but no ex-
perience in treating patients for obesity had sufficient
knowledge, training, and education to testify regarding
drug’s effect on obese persons). The question we must
ask is not whether an expert witness is qualified
in general, but whether his “qualifications provide a
foundation for [him] to answer a specific question.” Berry
v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994); see
Meridia Prod. Liab. Litig. v. Abbott Lab., 447 F.3d 861, 868 (6th
Cir. 2006) (district court did not abuse its discretion by
No. 08-2187 13
permitting qualified pharmacologist to testify as to drug
temporarily elevating blood pressure of some patients,
but not as to effects of high blood pressure on the
human body.); Dura Auto. Sys. of Ind., Inc. v. CTS Corp.,
285 F.3d 609, 613 (7th Cir. 2002). So, the fact that
Dr. Weinstein is not a cardiologist does not prevent him
from testifying regarding Taylor’s death; instead, we
must look at each of the conclusions he draws
individually to see if he has the adequate education, skill,
and training to reach them.
Here, Dr. Weinstein makes three separate conclusions.
With respect to his first conclusion, that Taylor
would not have died if PCJ had given her her cardiac
medications, the district court did not abuse its
discretion in finding him unqualified because of his lack
of specific knowledge of cardiology and pharmacology.
Aside from the fact that these drugs treat heart disease
and that they were prescribed for Taylor’s CHF,
Dr. Weinstein gives no basis for his opinion that if
prison officials had obtained and administered these
medicines to her during the two days prior to her death
she would have survived. Dr. Weinstein does not
contend that he has any specific knowledge regarding
how these drugs function, whether they are efficacious
in the short term as well as the long term, or how they
prevent CHF from reaching a critical stage. Moreover,
Dr. Weinstein cannot state what effect, if any, these
medications would have had given that the record
reveals that Taylor had not been taking them con-
sistently nor as instructed by her prescribing physician.
Because he does not have specialized cardiac or pharmaco-
14 No. 08-2187
logical knowledge upon which to base his conclusion
that these drugs had a reasonable probability of saving
her life if taken in the days before her death, the
district court did not err in excluding it.
On the other hand, Dr. Weinstein’s second conclusion,
that Taylor’s vomiting combined with her diuretic med-
ications may have contributed to her tachycardia and
subsequent death, should not have been excluded. The
effects of vomiting on potassium and electrolyte levels
in the body is not specialized knowledge held only by
cardiologists, and as Dr. Weinstein opined, it is knowl-
edge that any competent physician would typically
possess. So, the district court erred when it concluded
that Dr. Weinstein was not qualified to testify that
Taylor’s vomiting may have hastened her death.
The district court did not address Dr. Weinstein’s third
conclusion, that the care given to Taylor did not meet the
acceptable standards of prison medicine and that the
standard level of care may have prevented her death. It is
undisputed that Dr. Weinstein is an expert in the area
of prison healthcare. So, to the extent that it remains
relevant, given that Dr. Weinstein’s testimony regarding
PCJ’s or the individual defendants’ failure to provide
an adequate standard of medical care to Taylor resulted
in an injury to her could “assist the trier of fact to under-
stand the evidence or to determine a fact in issue,” it
should be admitted. See Fed. R. Evid. 702.
The district court also excluded Dr. Weinstein’s testi-
mony because it found it to be unreliable. Specifically,
the court took issue with the fact that: (1) Dr. Weinstein
simply adopted the cause of death proffered by the
No. 08-2187 15
other physicians; and (2) he did not specifically rule out
any other possible contributing factors to Taylor’s death.
As stated above, none of the experts in this case can
definitively say that one specific factor caused Taylor’s
heart to stop. Dr. Weinstein simply posited that a large
amount of vomiting was one factor that increased the
likelihood that Taylor’s heart would fail. To the extent
that this amounts to “adopting the cause of death”
finding of another expert, we see no problem with it.
In terms of his methodology, Dr. Weinstein, like
Dr. Moulton, had to arrive at his conclusions based
solely on an examination of a cold record, consisting of
Taylor’s autopsy report, her medical records, and the
testimony of the prison guards and other witnesses. Cf.
Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1020 (7th
Cir. 2000) (“[I]n clinical medicine, the methodology of
physical examination and self-reported medical history
employed by [the physician] is generally appropriate.”). In
reviewing the record, Dr. Weinstein used the same type
of equally reliable analysis as Dr. Moulton—differential
diagnosis based on Taylor’s medical history and the
facts surrounding her incarceration. Dr. Weinstein,
based on his medical experience, provided a sufficient
scientific basis for his position that, among other things,
Taylor’s vomiting could have exacerbated her heart
condition and hastened her death. Cf. Bass by Lewis v.
Wallenstein, 769 F.2d 1173, 1183 (7th Cir. 1985) (finding
that expert’s testimony that chance of survival would
have been 10-30% if advanced cardiac life support had
been timely administered was sufficient to uphold jury
verdict).
16 No. 08-2187
The district court also took issue with the fact that, aside
from lack of medication and the nurses’ failure to treat
Taylor’s vomiting, Dr. Weinstein did not posit any
possible alternative causes of Taylor’s heart failure.
Aside from failing to account for the inefficiencies of
requiring an expert to list each and every possible cause
of a given outcome, this analysis misinterprets Dr.
Weinstein’s testimony as being directly related to
Taylor’s “cause of death.” Dr. Weinstein did not
conclude that Taylor’s vomiting was a one-hundred
percent certain cause of her death. As we have held on
many occasions, an expert need not testify with
complete certainty about the cause of an injury; rather
he may testify that one factor could have been a con-
tributing factor to a given outcome. See Walker v. Soo Line R.
Co., 208 F.3d 581, 587-88 (7th Cir. 2000). The possibility
that a cause other than Taylor’s vomiting was ultimately
responsible for her injury is properly left for exploration
on cross-examination. See id.; Cooper, 211 F.3d at 1021
(“The possibility of Mr. Cooper’s [chronic pain syndrome]
being attributable to a factor other than the fall is a
subject quite susceptible to exploration on cross-examina-
tion by opposing counsel. Similarly, the accuracy and
truthfulness of the underlying medical history is subject
to meaningful exploration on cross-examination and
ultimately to jury evaluation. Therefore, Nelson’s conten-
tion that other conditions of Mr. Cooper’s might have
caused his CPS goes to the weight of the medical testi-
mony, not its admissibility.”). Further, whether the cause
put forth by a qualified expert actually proximately
caused the injury at issue is a question for the jury at trial;
No. 08-2187 17
a district court should only evaluate whether an expert’s
conclusion on causation was reasoned and based on a
reliable methodology. Cooper, 211 F.3d at 1015 (“Al-
though the existence of a duty must be determined as a
matter of law, the question of whether there was a breach
of that duty and an injury proximately caused by
that breach are questions of fact for the jury.”). Last, the
plaintiff need not show that the defendants’ failure to
treat her vomiting ultimately caused her death, but
merely that it exacerbated her medical problems, because
the constitutional violation in question here is the failure
to provide adequate medical care to Taylor in response
to a serious medical condition, and not “causing her
death”. See Grieveson v. Anderson, 538 F.3d 763, 779 (7th
Cir. 2008) (“A delay in the provision of medical treatment
for painful conditions—even non-life-threatening condi-
tions—can support a deliberate-indifference claim so
long as the medical condition is ‘sufficiently serious or
painful.’ ”) (citations omitted); see also Williams v. Liefer, 491
F.3d 710, 716 (7th Cir. 2007) (“[A] jury could find that the
defendants’ delay caused [the inmate] six extra hours of
pain and dangerously elevated blood pressure for no
good reason.”). For these reasons, the district court
abused its discretion in finding that Dr. Weinstein’s
testimony regarding the link between Taylor’s vomiting
and her death was unreliable.
In summary, given that none of the medical experts in
this case can determine the exact cause of Taylor’s un-
timely death, aside from non-specific heart failure, the
jury should hear testimony, backed by accepted medical
science, about factors that could have exacerbated her
18 No. 08-2187
heart condition. After hearing from all of the experts, and
after vigorous cross-examination, it will be up to the
jury to determine which of these factors, if any, proxi-
mately caused an injury to Taylor. Dr. Weinstein’s testi-
mony regarding the interaction between Taylor’s
vomiting and her heart condition as well as his testimony
regarding the standard of medical care in prisons and the
effects of delaying care are admissible, but his testimony
regarding the role that PCJ’s failure to provide Taylor
with her CHF medications may have played in her death
is not. As always, on remand the district court retains
the discretion to exclude portions of Dr. Weinstein’s
testimony that are inconsistent with any of the other
Federal Rules of Evidence.
B. Deliberate Indifference to a Serious Medical Condi-
tion
In order to sustain a § 1983 claim for violation of
Taylor’s Fourteenth Amendment due process right to
adequate medical care, the plaintiff must show that:
(1) Taylor had an objectively serious medical condition;
(2) the defendants knew of the condition and were deliber-
ately indifferent to treating her; and (3) this indifference
caused her some injury. See Hayes v. Snyder, 546 F.3d
516, 522 (7th Cir. 2008); Qian v. Kautz, 168 F.3d 949,
955 (7th Cir. 1999). An objectively serious medical condi-
tion is one that “has been diagnosed by a physician as
mandating treatment or one that is so obvious that even
a lay person would perceive the need for a doctor’s at-
tention.” Hayes, 546 F.3d at 522. A medical condition
No. 08-2187 19
need not be life-threatening to be serious; rather, it could
be a condition that would result in further significant
injury or unnecessary and wanton infliction of pain if
not treated. See Reed v. McBride, 178 F.3d 849, 852 (7th
Cir. 1999).
With regard to the deliberate indifference prong, the
plaintiff must show that the official “acted with the
requisite culpable state of mind.” Id. This inquiry has two
components. The official must have subjective knowl-
edge of the risk to the inmate’s health, and the official also
must disregard that risk. Collins v. Seeman, 462 F.3d 757,
761 (7th Cir. 2006). Evidence that the official acted negli-
gently is insufficient to prove deliberate indifference. See
Payne for Hicks v. Churchich, 161 F.3d 1030, 1040 (7th Cir.
1998). Rather, “ ‘deliberate indifference’ is simply a syn-
onym for intentional or reckless conduct, and that ‘reck-
less’ describes conduct so dangerous that the deliberate
nature of the defendant’s actions can be inferred.” Qian,
168 F.3d at 955. Simply put, an official “must both be
aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he
must also draw the inference.” Higgins v. Corr. Med. Serv.
of Ill., Inc., 178 F.3d 508, 510 (7th Cir. 1999); see also Hudson
v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998). Even if a
defendant recognizes the substantial risk, he is free from
liability if he “responded reasonably to the risk, even if
the harm ultimately was not averted.” Farmer v. Brennan,
511 U.S. 825, 843 (1994). Whether a medical condition
is “serious” and whether a defendant was “deliberately
indifferent” to it are fact questions, to be resolved by a
20 No. 08-2187
jury if a plaintiff provides enough evidence to survive
summary judgment. See Hayes v. Snyder, 546 F.3d 516, 523
(7th Cir. 2008). The district court granted summary judg-
ment to the defendants because it found that they did not
show a deliberate indifference to a serious medical need
of Taylor’s; we review this decision de novo, viewing all
facts in the light most favorable to the plaintiff. Williams
v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007).
1. Objectively Serious Medical Condition
The district court found that Taylor’s CHF, but not her
vomiting, was a serious medical condition. There is no
dispute that Taylor had a serious heart condition, CHF,
which was diagnosed by a doctor. Taylor’s prison medical
records reflected this and noted that she was required
to take six different medications to manage this con-
dition. So, Taylor’s CHF was a serious lifelong medical
condition, and a jury could find that Taylor’s complaints
of chest pain during her incarceration at PCJ made the
defendants aware that she had an “objectively serious
medical condition” that required medical intervention.
Vomiting, in and of itself, is not an uncommon result
of being mildly ill, and, absent other circumstances (e.g.,
vomiting continuously for a long period of time, having
blood in one’s vomit, or the like), does not amount to
an objectively serious medical condition. However, given
that PCJ and its medical staff were on notice of Taylor’s
CHF, they should have been more concerned about her
vomiting than that of the average ill inmate. When Taylor
No. 08-2187 21
arrived at PCJ she complained of chest pain. Subse-
quently, she complained of nausea and vomited enough
to make several prison guards very concerned for her
health. There is no need to parse the two conditions and
call one serious and the other not. As Dr. Weinstein
testified, excessive vomiting could exacerbate Taylor’s
heart condition. The seriousness of her vomiting is high-
lighted by the fact that several prison guards thought
it prudent to collect her vomit in a bag and call the
nurse to see if Taylor could be examined immediately.
At minimum, a jury could find that, although not life
threatening, Taylor’s vomiting could have led to in-
creased pain or injury as a result of her heart condition,
allowing the plaintiff to survive the defendant’s motion
for summary judgment on the issue of whether she ex-
hibited a serious medical condition. See Farmer, 511 U.S.
at 843.
2. Deliberate Indifference
The district court did not find that any of the defen-
dants’ actions extended beyond mere negligence into the
realm of deliberate indifference because it found that
Taylor’s complaints were not indicative of “crushing chest
pain” or “chest pain that signaled an emergency.” Given
this conclusion, the district court found that the nursing
staff was reasonable in assuming Taylor was drug seeking
and responded appropriately to Taylor’s complaints by
putting her on the list to be seen by a doctor three days
after her initial complaints of chest pain. In reaching
these conclusions, the analysis weighed the evidence
22 No. 08-2187
and neglected to view the facts in the light most
favorable to the plaintiff as the non-moving party. The
record reflects that Taylor’s CHF was a life threatening
condition known to the defendants through Taylor’s
medical records. Her specific complaints of chest pain
while she was incarcerated at PCJ, either alone or in
conjunction with her serious vomiting, could certainly
lead a jury to believe that she had a serious medical
condition. Whether a reasonable jury could possibly find
for the plaintiff depends on the knowledge each
individual defendant had regarding Taylor’s condition,
and how each defendant responded to her requests for
medical attention. So, we must examine the defendants’
knowledge and actions individually.
a. Dr. Johnson, Sheriff McCoy, and Superinten-
dent Smith in Their Individual Capacities
Dr. Norman Johnson, Sheriff Michael McCoy, and
Superintendent Steven Smith did not have contact with
Taylor during the days immediately preceding her
death. So, in order to sustain a due process claim
against them, the plaintiff needs to show that they had
knowledge of Taylor’s condition and somehow ratified
the deliberate indifference of those persons who were
directly responsible for Taylor’s care. See Hudson, 148
F.3d at 863. Given that the record reveals no evidence
that they knew of Taylor’s incarceration, condition, or
requests for medical attention, summary judgment in
their favor is appropriate.
No. 08-2187 23
b. Advanced Correctional Healthcare, Inc., Peoria
County, Illinois, and Defendants in Their
Official Capacities
It is well established that there is no respondeat superior
liability under § 1983. See Horwitz v. Bd. of Educ. of Avoca
Sch. Dist. No. 37, 260 F.3d 602, 619-20 (7th Cir. 2001). A
“private corporation is not vicariously liable under § 1983
for its employees’ deprivations of others’ civil rights.”
Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir.
1982). Generally, to maintain a viable § 1983 action
against a municipality, a government agent (such as
Advanced Correctional Healthcare, Inc.), or individual
policymaking defendants in their official capacities
(such as Johnson, McCoy, and Smith), a plaintiff must
demonstrate that a constitutional deprivation occurred
as the result of an express policy or custom promulgated
by that entity or an individual with policymaking author-
ity. See Latuszkin v. City of Chicago, 250 F.3d 502, 504
(7th Cir. 2001).
So, in order to maintain an action against Advanced
Correctional Health Care, Inc. or Peoria County, the
plaintiff must show that PCJ’s healthcare policy was a
“moving force” behind Taylor’s death or needless suf-
fering. Latuskin, 250 F.3d at 505. Here, the plaintiff
cites two policies which he contends contributed to Tay-
lor’s death. First, he claims that the jail’s policy did not
permit the guards to directly contact Dr. Johnson when
they felt that a prisoner needed a doctor’s attention.
Second, he argues that when a prisoner is “very sick”
guards should check on her every half hour.
24 No. 08-2187
At PCJ, a doctor is present to take appointments on
Mondays, Wednesdays, and Fridays. The doctor is
on call twenty-four hours a day, seven days a week, for
any medical emergency. Prison policy dictates that a
doctor is supposed to be contacted if a prisoner com-
plains of a serious medical condition, specifically
including chest pain. At all other times there is a nurse
or nurse practitioner on site to handle minor emergencies
and other ailments. Although mandating a doctor’s visit
or constant prisoner checks would likely reduce the
number of illness-related deaths or injuries, it is neither
economically prudent nor feasible to put such policies
in place. As the plaintiff conceded at oral argument,
the policies that were in place were sufficient to
provide Taylor with adequate medical care; instead, the
plaintiff alleges that the harm to Taylor resulted from
the nurses’ failure to follow these policies. So, any type
of Monell claim fails. See Monell v. City of New York, 436
U.S. 658 (1978). As such, summary judgment for all
non-nurse defendants is appropriate.
We now turn to the defendants that actually had
contact with Taylor prior to her untimely death.
c. Nurse Radcliff
Nurse Radcliff was the first medical professional to
“treat” Taylor upon her arrival at PCJ. Taylor complained
of chest pains. Nurse Radcliff failed to follow PCJ’s proto-
col which requires her to contact a doctor when an
inmate complains of chest pains. She also failed to take
Taylor’s vital signs.
No. 08-2187 25
Instead, Nurse Radcliff responded to Taylor’s
complaints by putting her on the list to have her vitals
checked each morning, and, according to her own state-
ments, asked Taylor about the severity of her chest pain.
More importantly, she had Taylor call her brother to
bring her CHF medication to PCJ and put a specific note
on Taylor’s chart to call the doctor if the medication
was not delivered by the next day. “[D]eliberate indif-
ference may be inferred based upon a medical profes-
sional’s erroneous treatment decision only when the
medical professional’s decision is such a substantial
departure from accepted professional judgment, practice,
or standards as to demonstrate that the person re-
sponsible did not base the decision on such a judgment.”
Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261-62
(7th Cir. 1996). If this standard is not met, the deliberate
indifference question may not go to the jury. Id. Here,
although she did not have Taylor immediately examined
by a doctor, given that she took reasonable measures to
ensure that Taylor would get her medication, and put a
notation in her chart to have her seen by a doctor if
they did not arrive, it cannot be said that Nurse
Radcliff’s judgment departed so substantially from the
professional norm that she acted deliberately indifferent
to Taylor’s health. Nor can it be said that her actions
were “so dangerous” that the deliberate nature of her
conduct can be inferred. Qian, 168 F.3d at 955. So,
summary judgment in Nurse Radcliff’s favor is appro-
priate.
26 No. 08-2187
d. Nurse Mattus
Nurse Mattus examined Taylor after she complained of
nausea. During this examination, Taylor neither vomited
nor complained of chest pain. In response, Nurse Mattus
put Taylor on the morning sick call list, but refused to
give her any medication to quell her nausea. Certainly
Nurse Mattus should have checked Taylor’s chart and
ascertained whether Taylor’s CHF medications had been
delivered, and in response to finding that they had not
been, immediately followed up with Dr. Johnson. But,
her failure to do so was not a deliberate indifference
to a serious medical condition, but mere negligence—
Taylor neither vomited nor complained of chest pain
during the visit; had she done so, our analysis might be
different. But since she did not, and negligence is not
actionable as a due process violation, summary judg-
ment in favor of Nurse Mattus is appropriate. See Steele
v. Choi, 82 F.3d 175, 178 (7th Cir. 1996) (courts must
“distinguish between deliberate indifference to serious
medical needs of prisoners, on the one hand, and
negligen[ce] in diagnosing or treating medical condi-
tion, on the other,” and “only the former” violates the
Eighth Amendment (citations omitted)).
e. Nurse Hibbert
Later that morning, Taylor again went to PCJ’s infirmary
complaining of nausea. Nurse Hibbert examined her
and found that her blood pressure was high. Taylor
asked for anti-nausea medication but did not vomit.
Nurse Hibbert did not give Taylor this medication, but she
No. 08-2187 27
testified that had she seen Taylor vomit, protocol
would have dictated that she administer anti-nausea
medication to her. She also testified that she knew of
Taylor’s CHF, and that the prison policy stated that a
nurse should retrieve a prisoner’s medical chart before
examining her. Had she done so, she would have seen
that Taylor was supposed to have been examined by
a doctor because her brother failed to bring her CHF
medications to the prison, and that Taylor had com-
plained of chest pain during intake.
Later that day, Taylor vomited while attending a court
proceeding via video. The prison guards were so con-
cerned about Taylor’s health that they felt it necessary
to collect her vomit in a trash bag. Admirably, they im-
mediately called Nurse Hibbert and told her that Taylor
needed to be examined as soon as possible. (Nurse Hibbert
disputes the guards’ version of events, but for our pur-
poses we accept it as true). Despite clear indications
that Taylor was in serious medical need—she had com-
plained of chest pain, exhibited high blood pressure hours
earlier, and vomited during a video hearing—Nurse
Hibbert refused to see Taylor, and instead told the
guards to have her fill out a sick request form. See Walker
v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002) (quoting
Farmer, 511 U.S. at 842) (“[A] factfinder may conclude
that a prison official knew of a substantial risk from the
very fact that the risk was obvious.”). Nurse Hibbert
herself admitted that if she had seen Taylor vomit, she
would have given her anti-nausea medication. But faced
with the guards’ concern and a bag full of vomit, she did
not. In fact, the record reveals that the reason she did
28 No. 08-2187
nothing was, because, according to the guards’ testimony,
it was approaching the end of her shift and she wanted
to let the next nurse handle the situation. As a result of her
inaction, Officer Browning, one of the guards that told
Nurse Hibbert to examine Taylor, thought that Nurse
Hibbert violated prison protocol, and filed a complaint
against her. And all three of the guards present at the
video hearing testified for the plaintiff in this matter.
Given that Nurse Hibbert refused to treat or even see
Taylor in spite of her serious medical condition, a jury
could easily find that her actions surpassed mere negli-
gence and entered the realm of deliberate indifference.
In fact, the guards’ testimony regarding Taylor’s con-
dition, and the various acts that they took to try to help
her, shows that even a layperson would believe that
Taylor’s condition was serious. See Hayes, 546 F.3d at
522. Therefore, we reverse the district court’s grant of
summary judgment in favor of Nurse Hibbert.
3. Proximate Causation
The district court also found that none of the nurses’
actions was the proximate cause of Taylor’s death. See
Berman v. Young, 291 F.3d 976, 982 (7th Cir. 2002) (noting
that plaintiff must “produce evidence that she sustained
actual injury and that her injuries had a causal connection
with the alleged [Section 1983] due process violation”)
(citations omitted). The district court concluded Gayton
needed to show, through expert testimony, that the
nurses’ inaction necessarily caused Taylor’s death. And
without such testimony, the district court found he
could not establish proximate cause.
No. 08-2187 29
Because Dr. Weinstein’s testimony concerning the
possible connection between Taylor’s vomiting and her
tachycardia should not have been excluded, the plaintiff
now has expert evidence to establish causation. More-
over, even if the plaintiff could not proffer expert testi-
mony in this case, he still would have adequate causation
evidence to reach trial against Nurse Hibbert. Proximate
cause is a question to be decided by a jury, and only in
the rare instance that a plaintiff can proffer no evidence
that a delay in medical treatment exacerbated an
injury should summary judgment be granted on the issue
of causation. See Grieveson, 538 F.3d at 779; Cooper, 211
F.3d at 1015. Expert testimony is not always necessary
to establish causation in a case where an inmate alleged
that prison employees violated his due process rights
by failing to provide him with adequate medical care:
Clearly, expert testimony that the plaintiff suffered
because of a delay in treatment would satisfy the
requirement. On the other hand, evidence of a
plaintiff’s diagnosis and treatment, standing alone,
is insufficient if it does not assist the jury in deter-
mining whether a delay exacerbated the plaintiff’s
condition or otherwise harmed him.
Grieveson, 538 F.3d at 779 (citing Liefer, 491 F.3d at 715).
But if the plaintiff offers evidence that allows the jury
to infer that a delay in treatment harmed an inmate,
there is enough causation evidence to reach trial.
Grieveson, 538 F.3d at 779. In Grieveson, an inmate al-
leging prison officials violated his due process rights
by failing to provide him with adequate medical care
30 No. 08-2187
did not introduce expert testimony that the delay in
medical care caused him to suffer. Id. Nonetheless,
because he introduced the medical records relating to his
injury, which could have led a jury to infer that a delay
in treatment could have unnecessarily prolonged and
exacerbated his injury, we concluded he had enough
evidence to survive summary judgment. Id. The same
is true here. The plaintiff has offered evidence that Taylor
had a serious medical condition, the guards thought her
condition serious enough that she needed medical atten-
tion, and Nurse Hibbert actively ignored her requests
for treatment. This is enough for a jury to find that
Taylor incurred “many more hours of needless suffering
for no reason” as a result of Nurse Hibbert’s inaction.
Id. This is especially true because the constitutional depri-
vation at issue is a failure to provide Taylor with due
process in the form of adequate medical treatment; the
plaintiff need not prove that Nurse Hibbert’s inaction
necessarily led to Taylor’s death, but rather that her
suffering was exacerbated by Nurse Hibbert’s failure to
provide her with adequate medical care. See id.; see also
Liefer, 491 F.3d at 715-16.
III. CONCLUSION
Therefore, we A FFIRM IN PART and R EVERSE IN PART
the district court’s exclusion of Dr. Weinstein’s testi-
mony. The district court properly excluded Dr. Wein-
stein’s testimony as it relates to the effects of PCJ’s failure
to provide Taylor with her CHF medications. However,
his testimony regarding the adequate standard of med-
No. 08-2187 31
ical care in prisons and the effect that Taylor’s vomiting
may have had on her heart condition should not have
been excluded. We A FFIRM the district court’s grant of
summary judgment to Dr. Johnson, McCoy, Smith, Ad-
vanced Correctional Healthcare, Inc., Peoria County, Nurse
Mattus, and Nurse Radcliff because no reasonable jury
could conclude that their actions amounted to deliberate
indifference to a serious medical need. Because a jury
could find that Nurse Hibbert’s inaction amounted to
deliberate indifference to a serious medical need of Tay-
lor’s, we R EVERSE the district court’s grant of summary
judgment in her favor, and remand for trial on the plain-
tiff’s § 1983 claim against her. Because the plaintiff has
failed to develop any argument relating to the district
court’s award of summary judgment to the defendants on
his state law claims, he has waived any objection to the
court’s decision on those claims, and therefore we A FFIRM
on those claims. See Argyropoulos v. City of Alton, 539
F.3d 724, 738 (7th Cir. 2008).
1-28-10