United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND JR. UNITED STATES DISTRICT JUDGE.
Samuel Anderson initiated this action pursuant to 42 U.S.C.
§ 1983 in 2011. After pretrial motions disposed of a
number of claims against various parties, the matter
proceeded to trial in March 2016 on Plaintiff's Eight
Amendment claims of deliberate indifference to medical care
against Defendant's Dr. Dorothy Swingle, the Chief
Medical Officer at High Desert State Prison (“High
Desert”); Dr. Bonnie Lee, a High Desert physician; and
Jerry Stovall, a licensed clinical social worker at the
prison. After a three-day trial, the jury returned a
unanimous verdict in Plaintiff's favor as to Defendants
Lee and Swingle and awarded Plaintiff $120, 000 in
damages. Presently before the Court are
Defendants' Motion for Judgment as a Matter of Law or, in
the alternative, for a New Trial (ECF No. 256), and
Plaintiff's Motion for Attorneys' Fees (ECF No.
258). For the following reasons, Defendants'
Motion is DENIED, and Plaintiff's Motion is GRANTED in
part and DENIED in part.
is a 67-year-old inmate housed at High Desert. While at the
prison, Plaintiff complained of chronic back and nerve pain.
He was diagnosed with scoliosis, degenerative joint disease
(osteoarthritis), and leg pain, which may have arisen from
neuropathy associated with diabetes. Plaintiff was initially
prescribed morphine for his back pain.
March 2011, plaintiff's morphine dosage was gradually
decreased, eventually discontinued, and he began receiving
Tramadol instead. In addition, a few months later, in June
2011, Plaintiff began receiving oxcarbazepine for his nerve
pain. Subsequently, in October 2011, Plaintiff's primary
care physician referred Plaintiff to the prison's Pain
Management Committee (“Committee”). Defendants
Swingle and Lee were both Committee members.
November 2011, the Committee further referred Plaintiff to a
specialist for pain testing to assess his need for pain
medication and whether he would benefit from physical
therapy. Eventually, on February 28, 2012, the Committee,
including Defendants Swingle and Lee, noted that Plaintiff
was still taking oxcarbazepine for nerve pain, and
recommended that Plaintiff's Tramadol prescription not be
renewed. Instead, the Committee recommended offering
Plaintiff Tylenol, physical therapy, and non-opiod
initiated this action pro se in December 2011, and on or
around June 2012, he began receiving Tramadol
again. The Court thereafter appointed Chijioke
Ikonte (“Ikonte”) of the law firm Akudinobi &
Ikonte from its pro bono panel to represent Plaintiff on
August 23, 2012. ECF No. 79. Defendants eventually moved for
summary judgment, which Plaintiff opposed. While
Defendants' motion was subsequently granted in part, the
claims against Defendants Lee, Swingle, and Stovall were
permitted to go forward. ECF Nos. 178-179.
matter proceeded to trial and the jury was tasked with
determining whether Defendants were deliberately indifferent
to Plaintiff's medical needs based on the discontinuance
of, first, his morphine prescription, and, second, his
Tramadol prescription. During the course of trial,
Plaintiff's expert, Dr. Gerald Frank, testified that a
stepwise approach to pain management was preferable and, in
fact, was the approach adopted by the Pain Management
Guidelines for the prison health care services. ECF No. 251,
at 97:3-98:3, 102:6-18; Ex. 192, at 52. Under this method a
patient's pain is first treated with low-potency
medication and, if that is not effective, he is then moved to
a more potent medication, the doses of which are titrated
upward until the pain has been controlled.
asked for his “opinion regarding the treatment
[Plaintiff] received for pain management, ” namely the
discontinuation of opioids, Dr. Frank opined that “this
was so far from difference of opinion among physicians that
it reached the point of callous disregard for someone's
complaints.” Id. at 103:15-23. Dr. Frank based
his opinion on the observation that “[i]nstead of the
stepwise approach . . . discussed before integrating all the
approaches including medication management, what happened to
[Plaintiff] repeatedly was medications which he reported as
effective were discontinued with no explanation that [he]
could find in the medical record.” Id. at
104:6-10. In addition, Dr. Frank testified that stopping the
Tramadol “made no sense.” Id. at
105:1-2. According to Dr. Frank, “[he] couldn't
understand why you would stop a medication that wasn't
causing unacceptable side effects and seem[ed] to be
effective, ” especially when Plaintiff was not
receiving a dose close to what would be considered the upper
limit. Id. at 105:2-7. Moreover, Dr. Frank opined,
“stopping opioid-based therapy cold turkey”
amounted to “cruel and unusual punishment” and
taking such action “guarantee[d] that person [would]
experience opioid withdrawal and will kick in a very horrible
way.” Id. at 124:1-5.
Dr. Frank testified that “untreated chronic pain ruins
a person's life as well as the lives of all the persons
around that person.” Id. at 126:1-3. Plaintiff
similarly testified that his level of pain was “so
excruciating it would make [him] cry and keep [him] from
going to sleep.” ECF No. 252, at 185:11-12. According
to Plaintiff, he was in pain around the clock, and, aside
from preventing sleep, the pain kept him from socializing or
going out into the yard. Id. at 185:16-21. More
specifically, Plaintiff testified that:
Typical day without pain, it's a miracle. It's a
pleasant feeling. I'm able to move around, laugh and
joke, play pinochle, watch TV. But when I have the pain,
I'm usually irritated . . . When the pain hits, it's
like being in surgery without novocaine, without anesthesia.
It's unbearable. It really is.
Id. at 190:17-25.
jury unanimously found for Plaintiff that Defendants Lee and
Swingle were indifferent to his medical needs, that they
unreasonably “decide[d] to discontinue
[Plaintiff's] prescription for tramadol, ” and that
he should be awarded $60, 000 against each
Defendant. ECF No. 245. Defendants now move for
judgment as a matter of law or for a new trial on the basis
that: (1) Defendants should not be held liable for
discontinuing the Tramadol prescription; (2) the verdict was
against the weight of the evidence; (3) the verdict was
excessive; (4) the Court improperly permitted Plaintiff to
offer evidence that he was eventually prescribed methadone;
and (5) the Court erred in refusing to instruct the jury
opposes Defendants' motion and seeks to recover
attorneys' fees and costs of approximately $151, 000.
According to Ikonte, he propounded written discovery on
Defendants, subpoenaed Plaintiff's records from
California Department of Corrections and Rehabilitation,
deposed Defendant Lee and another defendant no longer party
to this action, and defended Plaintiff's deposition.
Ikonte Decl., ECF No. 259, ¶ 5. He also successfully
opposed, at least in part, Defendants' Motion for Summary
Judgment. Id. ¶ 6. In addition, Ikonte worked
with co-counsel Emmanuel Akudinobi and Emenike Iroegbu on a
variety of tasks, including reviewing medical and prison
records, legal research, preparing for and conducting
depositions, opposing the motion for summary judgment, and
preparing for trial. Id. ¶¶ 7-8. Ikonte
also spent substantial time conferring with Plaintiff's
expert, Dr. Gerald Frank, and meeting with Plaintiff himself.
Id. ¶¶ 9-10. In all, Ikonte avers that
counsel spent 730 hours working on this case. Id.
¶ 20. Counsel also incurred a variety of travel and
other miscellaneous expenses prosecuting the action.
Id. ¶¶ 11-18. Finally, Ikonte indicates
that the cost of retaining Dr. Frank was $11, 224.
Id. ¶ 19. Defendants oppose this motion on a
variety of bases.
Court has considered the arguments and filings of counsel and
the record in its entirety. For the following reasons,
Defendants' motion is DENIED, and Plaintiff's Motion
is GRANTED in part and DENIED in part.
Motion For Judgment As A Matter Of Law Or For A Law New
judgment as a matter of law (“JMOL”) is proper
only when “the evidence permits only one reasonable
conclusion and the conclusion is contrary to that reached by
the jury.” Lakeside-Scott v. Multnomah County,
556 F.3d 797, 802 (9th Cir. 2009) (internal quotation marks
and citation omitted). To justify relief through a JMOL,
there must be a “complete absence of probative facts to
support the conclusion reached so that no reasonable juror
could have found for the nonmoving party.” Eich v.
Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752,
761 (8th Cir. 2003) (internal quotation marks and citations
omitted). While the Court should review the evidence
comprising the record, it should “not make credibility
determinations or weigh the evidence, ” and further
should construe all evidence in the light most favoring the
nonmoving party, here Plaintiff. Reeves v. Sanderson
Plumbing Co., 530 U.S. 133, 150-51 (2000).
order to bring the present post-trial motion under Rule
50(b), Defendants must first have moved for JMOL prior to
submission of the case to the jury. Fed.R.Civ.P. 50(a). Here,
the requisite motion was made by Defendants, prior to the
time evidence closed, and was subsequently denied. That
allowed Defendants to renew their motion for JMOL after entry
of judgment under Rule 50(b).
alternative to their request for JMOL, Defendants advocate
for a new trial on grounds that the verdict ultimately
reached by the jury was against the weight of the evidence. A
district court has discretion to grant a new trial when the
jury's verdict is contrary to the “clear weight of
the evidence, ” is based on false evidence, or would
result in a miscarriage of justice. Silver Sage Partners,
Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 819
(9th Cir. 2001) (quotation marks and citations omitted). The
standard for assessing a motion for new trial differs from
that applicable to a motion for JMOL under Rule 50(b)
inasmuch as even if the verdict is supported by enough
evidence to survive a 50(b) challenge, the Court in ruling on
a new trial request has the obligation to set aside the
verdict under Rule 59(a) if the verdict runs afoul of the
“clear weight” of the evidence that has been
presented. See Molski v. M.J. Cable, Inc., 481 F.3d
724, 729 (9th Cir. 2007).
verdict is against the clear weight of the evidence when,
after giving full respect to the jury's findings, the
judge “is left with the definite and firm conviction
that a mistake has been committed” by the jury.
Landes Const. Co., Inc. v. Royal Bank of Canada, 833
F.2d 1365, 1371-1372 (9th Cir. 1987) (citations omitted). In
ruling on a motion for new trial, “the judge can weigh
the evidence and assess the credibility of witnesses, and
need not view the evidence from the perspective most
favorable to the prevailing party.” Air-Sea
Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 190 (9th
Cir. 1989) (citations and quotation marks omitted).
of whether the relief sought is judgment in their favor or a
new trial, Defendants' Motion is not well-taken because
the jury's verdict was amply supported by the record. The
jury found that Defendants Lee and Swingle were deliberately
indifferent to Plaintiff's serious medical needs when
they recommended the discontinuation of his prescription for
Tramadol, a drug that was working to manage Plaintiff's
pain and from which he suffered no real side effects. This
recommendation flew in the face of the standards set forth in
the Prison's own Pain Management Guidelines, which called
for starting with low doses of drugs and titrating upward
until the pain had been effectively managed. Plaintiff's
expert also testified that the step-wise approach to pain
management employed by the prison guidelines was appropriate
and that stopping an effective opioid prescription cold
turkey was cruel and unusual. None of this evidence was
controverted, and it provides the basis for the jury's
verdict in Plaintiff's favor.
arguments to the contrary are not persuasive. For example,
Defendant's focus on the difference in medical opinions
as to the effectiveness of long term opioid use and the
attendant risks misses the mark. The question before the jury
was not whether Plaintiff should have been prescribed
Tramadol in the first place; it was whether Defendants were
deliberately indifferent in terminating the prescription in
contravention of the above medical standards. The medical
opinions on the latter issue were consistent. Indeed, those
opinions, which included the prison's Pain Management
Guidelines themselves, were so consistent that the risk to
Plaintiff was obvious, thus precluding any qualified immunity
defense. See Hope v. Pelzer, 536 U.S. 730, 741-42
(2002) (stating that “officials can still be on notice
that their conduct violates established law even in novel
factual circumstances” when the constitutional
violation is obvious).
the verdict excessive. This Court “allow[s] substantial
deference to a jury's finding of the appropriate amount
of damages.” Del Monte Dunes at Monterey, Ltd. v.
City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996).
The jury's findings will be upheld “unless the
amount is grossly excessive or monstrous, clearly not
supported by the evidence, or based only on speculation or
guesswork.” Id. None of these exceptions apply
jury in this case was instructed as follows as to determining
Damages means the amount of money that will reasonably and
fairly compensate the plaintiff for any injury you find was
caused by the ...