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Anderson v. Kimura-Yip

United States District Court, E.D. California

March 21, 2017

T. KIMURA-YIP, Associate Director, California Prison Health Care,, Defendants.



         Plaintiff 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.[1] 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).[2] For the following reasons, Defendants' Motion is DENIED, and Plaintiff's Motion is GRANTED in part and DENIED in part.[3]


         Plaintiff 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.

         In 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.

         In 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 medications.

         Plaintiff initiated this action pro se in December 2011, and on or around June 2012, he began receiving Tramadol again.[5] 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.

         The 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. Id.[6]

         When 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.

         Finally, 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.

         The 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.[7] 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 concerning negligence.

         Plaintiff 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.

         The 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.


         A. Motion For Judgment As A Matter Of Law Or For A Law New Trial

         Entering 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).

         In 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).

         As an 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).

         A 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).

         Regardless 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.

         Defendants' 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.[8] 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.[9] The medical opinions on the latter issue were consistent.[10] 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).

         Nor was 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 here.

         The jury in this case was instructed as follows as to determining damages:

Damages means the amount of money that will reasonably and fairly compensate the plaintiff for any injury you find was caused by the ...

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