Walker v. Corizon Health, Inc.

SHERMAINE WALKER, individually and as administrator of the estate of Marques Davis, deceased, et al., Plaintiffs, v. CORIZON HEALTH, INC., formerly known as Correctional Medical Services, et al., Defendants.

No. 17-2601-DDC-KGG

United States District Court, D. Kansas

April 8, 2022

MEMORANDUM AND ORDER

Daniel D. Crabtree United States District Judge

On April 13, 2017, inmate Marques Davis died while he was in the custody of the Kansas Department of Corrections and housed at the Hutchinson Correctional Facility in Hutchinson, Kansas. Plaintiffs Shermaine Walker (as administrator of Mr Davis's estate) and I.D.F. (as a minor and heir at law of Mr. Davis) filed this lawsuit against various entities and individuals who, plaintiffs allege, denied Mr. Davis access to adequate and competent medical care to evaluate and treat a serious medical condition. After several years of litigation, just two defendants remain in the action: Corizon Health, Inc. (“Corizon”)^[1] and Dr. Paul Corbier.

Both defendants have filed Motions for Summary Judgment (Docs. 186 & 200) against plaintiffs' claims asserted under 42 U.S.C. § 1983 and Kansas common law. Also, plaintiffs have filed a “Motion for Leave to File Surreply on Defendant Paul Corbier, M.D.'s Motion for Summary Judgment Concerning the Role of ‘Reviewing' Physician Margaret Smith, M.D.” (Doc. 230). For reasons explained below, the court grants in part and denies in part both defendants' Motions for Summary Judgment. The court begins, however, with the Surreply issue.

I. Plaintiffs' Motion for Leave to File a Surreply

Plaintiffs have filed a “Motion for Leave to File Surreply on Defendant Paul Corbier, M.D.'s Motion for Summary Judgment Concerning the Role of ‘Reviewing' Physician Margaret Smith, M.D.” (Doc. 230). Dr Corbier's summary judgment motion repeatedly cites a “review” of Mr. Davis's care conducted by an outside independent practitioner and signed by Margaret L. Smith, M.D. See Doc. 187 at 10, 11, 20-22, 26-27, 30. Dr. Corbier asserts that he received a copy of the review. Doc. 187-5 at 3 (Corbier Aff. ¶ 8). And, he attests that the feedback from the review confirmed to him and the Corizon clinicians that “all reasonable diagnostic testing [of Mr. Davis] had been performed, there were no reasonable alternatives that [they] were missing, and that the best course was continued observation over time to see if a diagnosis would present itself.” Id. (Corbier Aff. ¶ 9). Notably, Dr. Smith's one-page report specifically recites that “clinical staff” reviewed the case based on a concern raised by Mr. Davis's mother “that he might have multiple sclerosis.” Doc. 187-6. And, her report never identifies the information that the “clinical staff” reviewed to reach the conclusions in the report. Id.

Plaintiffs' Motion for Leave to File a Surreply asserts that Dr. Corbier's summary judgment motion “fundamentally misrepresented the role of ‘reviewing' physician Margaret Smith, M.D.” Doc. 230 at 1. Plaintiffs assert that they finally deposed Dr. Smith on March 10, 2022, after her deposition was delayed because of COVID-related concerns. Id. at 2. Plaintiffs represent that Dr. Smith testified at her March 10 deposition that “she did not perform a care or case review in this matter, that she never at any time reviewed any of Mr. Davis' medical records, and that she has never examined Mr. Davis nor met with or communicated with any of his doctors or medical providers.”^[2] Id. at 1. Also, plaintiffs' proposed Surreply (attached to the motion) asserts that Dr. Smith testified that the review was limited to one concern raised by Mr. Davis's mother, i.e., whether he had multiple sclerosis, and this review was performed by another, unidentified physician, and not Dr. Smith. Id. at 11-13. Plaintiffs represent that Dr. Smith's role was limited to reviewing the unidentified physician's assessment and comparing it with the memorandum prepared by the Kansas Department of Corrections about the assessment (Doc. 187-6) to make sure the information in the memorandum was consistent with the physician's assessment. Doc. 2130 at 12-13. Plaintiffs thus seek leave to file a Surreply to Dr. Corbier's summary judgment motion to add Dr. Smith's testimony to the summary judgment record and controvert Dr. Corbier's description of the case review.

Our court's local rules limit briefing on motions to the motion (with memorandum in support), a response, and a reply. D. Kan. Rule 7.1(a) & (c). Surreplies typically are not allowed. Taylor v. Sebelius, 350 F.Supp.2d 888, 900 (D. Kan. 2004), aff'd on other grounds, 189 Fed.Appx. 752 (10th Cir. 2006). Instead, surreplies are permitted only with leave of court and under “rare circumstances.” Humphries v. Williams Nat. Gas Co., No. 96-4196-SAC, 1998 WL 982903, at *1 (D. Kan. Sept. 23, 1998) (citations omitted). As an example, when a moving party raises new material for the first time in a reply, the court should give the nonmoving party an opportunity to respond to that new material (which includes both new evidence and new legal arguments) in a surreply. Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005); Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1139 n.13 (10th Cir. 2003). The rules governing filing of surreplies “are not only fair and reasonable, but they assist the court in defining when briefed matters are finally submitted and in minimizing the battles over which side should have the last word.” Humphries, 1998 WL 982903, at *1 (citation omitted).

This case doesn't present any of the “rare circumstances” warranting leave to file a surreply. Humphries, 1998 WL 982903, at *1. To be sure, the additional facts about Dr. Smith's case review provide more clarity about that review-one that Dr. Corbier extensively relies on in his summary judgment briefing to argue that he wasn't deliberately indifferent to Mr. Davis's serious medical needs. But, even on the current record, and as discussed in more detail below, Dr. Smith's report doesn't insulate Dr. Corbier from liability. A reasonable jury could conclude that Dr. Smith's one-page review was not a sufficient review of Mr. Davis's symptoms because it specifically recites that “clinical staff” conducted the review in response to Mr. Davis's mother's concern about multiple sclerosis and it includes no information about what “clinical staff” reviewed to reach the conclusions asserted in the memorandum. Also, the summary judgment record contains other facts about Mr. Davis's symptoms and Dr. Corbier's response to reports about his symptoms from which a reasonable jury could conclude that Dr. Corbier was deliberately indifferent to Mr. Davis's serious medical needs. Because of this factual issue, the court denies Dr. Corbier's summary judgment motion below. The court doesn't need to consider plaintiffs' proposed Surreply to reach that conclusion. Thus, the court denies plaintiffs' Motion for Leave to File a Surreply (Doc. 230).

II. Uncontroverted Facts

The following facts either are stipulated in the Pretrial Order (Doc. 196), uncontroverted, or where genuinely controverted, viewed in the light most favorable to the party opposing summary judgment. Scott v. Harris, 550 U.S. 372, 378-80 (2007).

The Parties

At the times relevant to this action, Marques Davis was an inmate in the custody of the Kansas Department of Corrections (“KDOC”). Doc. 196 at 2 (Pretrial Order ¶ 2.a.1.). During Mr. Davis's incarceration, defendant Corizon contracted with the State of Kansas and KDOC to provide certain healthcare services to inmates in KDOC's custody, including inmates housed at the Hutchinson Correctional Facility. Id. (Pretrial Order ¶ 2.a.3.). And, during times relevant to this action, defendant Paul Corbier, M.D. was a physician, employed by Correctional Healthcare Associates of Kansas, who served as the Regional Medical Director for Corizon for the State of Kansas. Id. at 3 (Pretrial Order ¶ 2.a.4.); see also Doc. 187-5 at 1 (Corbier Aff. ¶ 1).

In his role as Regional Medical Director, Dr. Corbier did not provide care directly to patients. Doc. 187-5 at 1 (Corbier Aff. ¶ 2). He worked at Corizon's office in Topeka, Kansas. Doc. 209-19 at 9-10 (Corbier Dep. 9:19-10:15). Inmates generally received direct medical care from on-site staff at the prison. Doc. 187-7 at 2 (Ciskey Dep. 7:8-18). But, Dr. Corbier was responsible for overseeing clinical activities. Doc. 187-5 at 1 (Corbier Aff. ¶ 2). He attests that he participated in collaborative discussions with other clinicians about inmates with particularly challenging clinical presentations or complicated treatment regimens during regular utilization management meetings involving multiple providers of different backgrounds and specialties. Id.

Dr. Corbier never provided direct medical care to Mr. Davis during his incarceration. Id. at 2 (Corbier Aff. ¶ 5). But, he attests that he is aware of the care that was provided to Mr. Davis “through [his] participation in the regular utilization management meetings.” Id. The summary judgment record identifies just one utilization management meeting involving Dr. Corbier and other providers where they discussed the care and treatment plan for Mr. Davis. Doc. 201-7 at 2-6 (Corbier Dep. 75:2-79:14); Doc. 201-3 at 2-3 (Administrative Note documenting March 31, 2017 meeting). Also, Debra Lundry, R.N. (Corizon Health Services Administrator “HSA”) testified that Dr. Corbier did not participate in weekly meetings to discuss patient care. Doc. 209-15 at 63 (Lundry Dep. 63:2-6).

Requests for Medical Care

For “non-emergent clinical services” in the high security setting of KDOC's prisons, inmates used a “sick call system.” Doc. 187-5 at 1-2 (Corbier Aff. ¶ 3). The “sick call” system required inmates seeking healthcare services to submit a...