United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION TO AMEND OR
ALTER JUDGMENT; MOTION FOR RECONSIDERATION; AND MOTION FOR A
NEW TRIAL RE: DKT. NOS. 330, 331, 332, 343, 345, 354, 362,
H. KOH UNITED STATES DISTRICT JUDGE.
David Scott Peasley (“Plaintiff”) brought
deliberate indifference claims against Defendants Zahed Ahmed
(“Ahmed”) and Maria Lopez (“Lopez”)
(collectively, “Defendants”). After a jury trial
on Plaintiff's claims, the jury found for Defendants. ECF
No. 321. Before the Court are Plaintiff's motions to
amend or alter judgment, for reconsideration, and for a new
trial. Having considered the parties' submissions, the
relevant law, and the record in this case, the Court DENIES
Plaintiff's motions to amend or alter judgment, for
reconsideration, and for a new trial.
has been incarcerated in the California state prison system
since 2010. Tr. at 165:12-14. Plaintiff testified at trial
that he was diagnosed with Type 1 diabetes at age ten.
Id. at 164:14-19. Diabetes is a condition
characterized by blood sugars of over 125 milligrams per
deciliter (“mg/dl”). Id. at 519:11-20.
The state of having high blood sugar levels is called
hyperglycemia, whereas the state of having low blood sugar
levels is called hypoglycemia. Id. at 335:18-336:1.
has brittle diabetes, which means that Plaintiff's blood
sugar levels fluctuate: “Mr. Peasley's blood sugars
are somewhat unpredictable. They vary widely. And that's
called brittle diabetes.” Id. at 532-17-18;
see also Id. at 436:11-14 (Plaintiff's expert
testifying that people with brittle diabetes are “tough
to manage because you have to get the insulin dosing just
right”). Consuming glucose can also increase a
person's blood sugar levels. Id. at 335:15-17.
a person's body produces insulin to regulate and reduce
blood sugar levels. Id. at 335:9-12. However, a Type
1 diabetic like Plaintiff cannot produce insulin.
Id. at 436:2-7. In Type 2 diabetes, the patient can
produce insulin, but his body is insulin resistant.
Id. at 435:5-13. To manage blood sugar levels, a
Type 1 diabetic receives insulin injections. Tr. at 436:4-7.
There are two types of insulin. Base insulin, also referred
to as Glargine, releases slowly throughout the body and more
gradually reduces blood sugar levels. Id. at
419:1-3. Base insulin is typically administered between
meals. Id. at 437:3-6. By contrast, regular insulin,
also referred to as Humulin, more quickly releases to reduce
blood sugar levels, and is typically administered at
mealtimes to modulate the glucose in food the patient
consumes. Id. at 419:6-10; 437:7-14.
person with diabetes does not receive sufficient insulin, he
can develop diabetic ketoacidosis (“DKA”), as
Defendants' medical expert testified: “Ketoacidosis
is usually found in Type 1 diabetics who have insulin
deficiency.” Id. at 556:10-11. Plaintiff's
medical expert testified that DKA is a condition wherein
“the liver comes up with an ingenious strategy to
produce something called a ketone body, and the ketone bodies
can be used like glucose, not as well as glucose, but like
glucose, by the brain.” Id. at 440:9-12.
Ketones are acidic, and “once the blood becomes too
acidic and the ketone levels rise too much, people start
gaining symptoms and symptoms and symptoms on top of one
another leading to what we really refer to as severe diabetic
coma, or severe diabetic ketoacidosis. These individuals need
emergent care or they will die imminently if they're not
dealt with in an emergent manner.” Id. at
438:20-25. Symptoms of ketoacidosis include dehydration,
abdominal symptoms like pain and nausea, frequent breathing,
fruity breath, muscular weakness, cognitive issues, and
death. Id. at 557:10-558:24.
the events in question, Plaintiff was incarcerated at
Correctional Training Facility (“CTF”) in
Soledad, California. Id. at 165:23-25. Plaintiff was
transferred to CTF in January 2013. Id. at 166:9-11.
Defendant Ahmed is a medical doctor in the prison system and
was Plaintiff's primary care physician during
Plaintiff's incarceration at CTF. Id. at
274:14-275:12. Defendant Lopez was a corrections officer at
CTF. Id. at 263:4-6.
Defendant Ahmed Altered Plaintiff's Insulin Regimen in
claim against Defendant Ahmed stems from Defendant
Ahmed's alteration of Plaintiff's insulin regimen in
May 2013, a few months after Plaintiff arrived at CTF. At
trial, the parties presented the below evidence related to
Defendant Ahmed's treatment of Plaintiff.
his incarceration at CTF, Plaintiff received insulin
injections multiple times daily from nurses at the
“pill window.” Tr. at 253:3-17; see Ex.
1-1 (image of pill window). Medical staff also tested
Plaintiff's blood sugar at mealtimes and occasionally at
bedtime. Tr. at 253:3-7. When Plaintiff arrived at CTF,
Plaintiff was receiving two doses of base insulin each
day-one dose of 23 units in the morning and one dose of 15
units in the evening. Ex. 323 at 1. Plaintiff also received
doses of regular insulin with breakfast (15 units), lunch (12
units), and dinner (19 units). Id. Finally,
Plaintiff received additional doses of regular insulin at
meals and at bedtime, with the precise dosages varying based
on Plaintiff's blood sugar readings. Id. These
varying doses are referred to as “sliding scale”
insulin. Id.; see also Tr. at 170:15-19
(Plaintiff testifying that he received regular insulin on a
sliding scale basis).
April 17, 2013, Plaintiff first met with Defendant Ahmed,
according to Defendant Ahmed's notes. Ex. 3-2. Defendant
Ahmed testified that at the first appointment with Plaintiff,
Defendant Ahmed maintained Plaintiff's existing regimen:
“I followed the previous thing and I intake, I examined
him. That's my first encounter.” Tr. at 279:12-15.
On May 9, 2013, Ahmed referred Plaintiff to a diabetes
educator. Ex. 8-4.
21, 2013, Defendant Ahmed had another appointment with
Plaintiff, and first adjusted Plaintiff's insulin
regimen. Defendant Ahmed increased Plaintiff's evening
dose of base insulin from 15 units to 18 units. ECF No. 323
at 2. Defendant Ahmed also increased Plaintiff's
breakfast dose of regular insulin from 15 units to 18 units
and reduced Plaintiff's dinner dose of regular insulin
from 19 units to 15 units. Id. Defendant Ahmed
continued to provide Plaintiff sliding scale regular insulin
at meals and bedtime. Id.
testified that he requested the adjustments because of
environmental differences at CTF: “The meals, the
structure of the exercise times, et cetera, were different.
So very minute modifications were needed.” Tr. at
178:13-15. Similarly, Defendant Ahmed testified that he
adjusted Plaintiff's insulin regimen in response to
Plaintiff's complaints “that his blood sugar is
going higher in the morning and then evening it lowered, so
he wanted to adjust it.” Id. at 284:11-13.
Defendant Ahmed testified that he was concerned about
Plaintiff's low blood sugar readings, and possible
episodes of hypoglycemia: “But here I saw something
going wrong because the nurse is recording it and they're
reporting to me that he's showing episodes of hypo, low,
sugar. Very dangerous. I have short time to bring him in and
treat it.” Id. at 287:14-17. Indeed,
Plaintiff's blood sugar levels varied widely, and were
occasionally very low. For example, on May 15, 2013,
Plaintiff's blood sugar was at 60 mg/dl in the morning,
at 98 mg/dl at lunch, and at 81 mg/dl in the evening. Ex.
4-76. On May 18, 2013, Plaintiff's blood sugar fluctuated
from 119 mg/dl in the morning to 198 mg/dl at lunch to 60
mg/dl in the evening. Id.
on May 23, 2013, Defendant Ahmed again adjusted
Plaintiff's insulin regimen. Specifically, Defendant
Ahmed increased Plaintiff's dose of morning base insulin
from 23 units to 30 units, and his evening base insulin from
18 units to 25 units. ECF No. 323 at 3. Defendant Ahmed also
removed standing doses of regular insulin from mealtimes.
Id. However, Defendant Ahmed continued to provide
Plaintiff regular insulin on a sliding scale at mealtimes.
Id. Thus, as Defendant Ahmed explained, Plaintiff
continued to receive regular insulin, although the doses
depended on Plaintiff's blood sugar levels:
“Sliding scale means giving insulin if blood sugar is
high, to give higher dose. If it's low, to give lower
dose.” Tr. at 418:9-10.
Ahmed testified that he adjusted Plaintiff's insulin
regimen because he thought that given Plaintiff's low
blood sugar readings, “possibly [Plaintiff] was
receiving excess of insulin.” Id. at
292:23-24. In addition, Defendant Ahmed testified that nurses
informed Defendant Ahmed that Plaintiff had not been
injecting all of his prescribed insulin: “Nurse's
note, I depend on also. Yeah, they mention he is squirting
insulin, and he's taking insulin unknown amount.”
Id. at 293:21-23; see also Ex. 28
(Defendant Ahmed's May 15, 2013 note noting that
Plaintiff “continues to ‘waste' predrawn
insulin” and “argues MD's orders are correct
on a daily bases [sic]”). Plaintiff conceded at trial
that Plaintiff would not always inject the prescribed
insulin: “I would measure a reduction of, say, 2
units.” Tr. at 253:22-23.
Defendant Ahmed testified that he worried that Plaintiff was
not complying with the existing treatment plan:
“Diabetes is the whole approach. He was - he was not
complying with medicine. Sometimes he is missing the whole
amount of the lantus, the long lasting [base] insulin.”
Id. at 295:7-10. Defendant Ahmed testified that he
decided to give Plaintiff regular insulin on a sliding scale
rather than on a standing basis to determine the optimal
amount of insulin for Plaintiff: “Sliding scale usually
will do to find out what is the amount he need.”
Id. at 422:13-14.
the May 23, 2013 adjustment, Plaintiff completed several
health care request forms, some disputing the insulin regimen
and others related to other health care requests. For
example, on May 23, 2013, Plaintiff stated on a form:
“Per Dr. Ahmed, I wish to get a consult. Discussion of
cognitive functions.” Ex. 310. Defendant Ahmed referred
Plaintiff to a mental health professional, and on May 31,
2013, Plaintiff met with Dr. J. Pazdernik. Ex. 8-5. Defendant
Ahmed testified that he thought the mental health appointment
was worthwhile to address Plaintiff's noncompliance with
Defendant Ahmed's recommended treatment: “We want
mental health evaluation because of the, of his
noncompliance.” Tr. at 382:19-20.
24, 2013, Plaintiff complained about the new insulin regimen:
“Insulin not allowed and blood test is denied.”
Ex. 312. On May 28, 2013, Plaintiff complained about
Defendant Ahmed's decision to stop providing standing
doses of regular insulin: “Long term insulin
doesn't control sugar levels fast enough so I can't
eat. Records indicate specialist agree to use fast insulin to
cover meals.” ECF No. 313. On June 2, 2013, Plaintiff
asked to see a diabetic specialist. Exs. 314, 315. Plaintiff
testified at trial that after the regimen change “it
was hard to walk. It was very life changing.” Tr. at
188:1-2. However, Plaintiff conceded that in his many health
care request forms, Plaintiff never mentioned the term
ketoacidosis nor any symptom of ketoacidosis other than high
blood sugar levels. Id. at 235:2-240:24. For
example, Plaintiff conceded that he did not mention
ketoacidosis or any of its symptoms on the June 2, 2013
health care request form, Ex. 314:
Q : And did you mention the term
“ketoacidosis” on that form?
A : I did not, sir.
Q : Did you mention any of the symptoms of
ketoacidosis on this form, such as abdominal pain?
A : On that form, no, sir.
Id. at 235:7-13.
the insulin regimen change, Plaintiff's blood sugar
levels continued to fluctuate. On May 26, 2013,
Plaintiff's blood sugar levels were at 222 mg/dl in the
morning, 450 mg/dl at lunch, and 279 mg/dl in the evening.
Ex. 4-76. Defendant Ahmed testified that Plaintiff's
insulin regimen was not the only factor affecting
Plaintiff's blood sugar readings: “He took insulin.
But he took the wrong food, high carbohydrate, it goes up
because end result of any food you take, glucose, and that is
the energy source.” Tr. at 306:21-25.
Accordingly, Defendant Ahmed asked Plaintiff to keep a diary
of his meals, but Plaintiff refused: “That's why I
asked him to keep a food diary. But he was not
cooperating.” Id. at 307:3-4. Defendant Ahmed
testified that a food diary would provide Defendant Ahmed
some visibility on Plaintiff's diet: “Maybe
he's eating wrong food or he's maybe eating sometimes
too much. So I want the food diary. After that, I can discuss
with him or I can send him to our diabetic educator to, to
adjust it, what he should eat, what he should not.”
Id. at 363:17-24.
Ahmed also testified that although Plaintiff's blood
sugar readings were sometimes high, an isolated reading of
400 mg/dl is not dangerous, unless persistent: “It is
not dangerous. I can go 500, 600 it can go. . . . If it is a
persistent - if it is a persistent, then yes.”
Id. at 282:10-12. As a result, Defendant Ahmed did
not conduct a urine ketone test, which measures the ketones
in the blood and can indicate whether a patent is suffering
from ketoacidosis. Id. at 461:25-462:5. When asked
whether he had testified at his deposition “that it was
prison policy to do a urine test for ketoacidosis when the
blood sugar reads over 400 mg/dl, ” Defendant Ahmed
explained that he had misspoken at his deposition: “Oh
yeah, I remember. I mean, it was - it is not needed. It is
not medical necessity. But I misspoke. I was really nervous
at that time in the deposition.” Id. at
3, 2013, Defendant Ahmed had a follow-up appointment with
Plaintiff. Ex. 3-4. Defendant Ahmed testified that he
convened another physician, a registered nurse, and a
licensed vocational nurse for the appointment to address the
concerns Plaintiff was raising in the health care request
forms: “This is here, I find it difficult, so I'm
trying to find - come up with something because of my concern
of his blood sugars and because I wanted to help him
actually.” Tr. at 384:19-385:11.
Ahmed testified that at the June 3, 2013 appointment,
Plaintiff did not complain of any symptoms related to
ketoacidosis, nor did Defendant Ahmed observe any such
symptoms. Id. at 387:14-388:4 (“Q: Did he make
any complaints to you of anything that was remotely akin to a
ketoacidosis symptom? A: No.”). Defendant Ahmed's
notes from the June 3, 2013 appointment also indicate that
Plaintiff's vital signs were normal. Ex. 3-4. Plaintiff
testified that at the appointment, Defendant Ahmed's
“demeanor was flat. There was no expression, no - no
eye contact.” Tr. at 195:18-19. After the June 3, 2013
appointment, Defendant Ahmed again adjusted Plaintiff's
insulin regimen. Specifically, Defendant Ahmed increased
Plaintiff's evening base insulin from 25 units to 28
units. Ex. 323 at 4.
Ahmed scheduled another appointment with Plaintiff for three
days later, June 6, 2013. Ex. 3-4. When asked whether there
was “anything about your appointment with Mr. Peasley
on June 6, 2013, that would lead you to believe that he was
experiencing ketoacidosis?”, Defendant Ahmed testified
“No.” Tr. at 395:8-11. After that appointment,
Defendant Ahmed increased Plaintiff's evening dose of
base insulin from 28 units to 30 units. Ex. 323 at 5.
Defendant Ahmed also placed a referral request for Plaintiff
to see an endocrinologist, a diabetes specialist. Ex. 321.
Defendant Ahmed testified that he made the referral to help
solve Plaintiff's issues with noncompliance: “By
seeing him, maybe patient will become more convinced and then
he will be - he will be more complaint with advices.”
Tr. at 396:12-14.
12, 2013, Defendant Ahmed and Plaintiff had another
appointment, after which Defendant Ahmed expedited
Plaintiff's endocrinology consultation. Ex. 3-5.
Defendant Ahmed also again adjusted Plaintiff's insulin
regimen. Defendant Ahmed reduced Plaintiff's evening base
insulin from 30 units to 25 units, and restored 5 units of
breakfast regular insulin and 5 units of dinnertime regular
insulin. Ex. 323-6.
13, 2013, the next day, Defendant Ahmed and Plaintiff met
again. Ex. 3-6. Defendant Ahmed testified that he scheduled
the appointment after reviewing a request from Plaintiff for
more insulin. Tr. at 402:10-19. Defendant Ahmed testified
that Plaintiff had no musculoskeletal symptoms: “He
came walking normally to my office and he has got no muscle
pain, no joint pain, no abnormalities.” Id. at
3, 2013, Defendant Ahmed again adjusted Plaintiff's
insulin regimen. Defendant Ahmed reduced Plaintiff's
morning base insulin from 30 units to 27 units and reduced
Plaintiff's evening base insulin from 25 units to 22
units. Ex. 323 at 7. Defendant Ahmed also increased
Plaintiff's breakfast regular insulin and dinnertime
regular insulin from 5 units to 8 units each. Id.
August 5, 2013, based on Defendant Ahmed's referral,
Plaintiff met via teleconference with Dr. Pawan Kumar, an
endocrinologist and specialist in diabetes. Tr. at 202:10-17;
Ex. 7-1. Dr. Kumar recommended decreasing Plaintiff's
doses of base insulin and increasing Plaintiff's doses of
regular insulin. Ex. 7-1. Defendant Ahmed implemented Dr.
Kumar's recommendations, and reduced Plaintiff's
doses of morning and evening base insulin to 22 units each.
Ex. 323 at 8. Defendant Ahmed also increased Plaintiff's
doses of breakfast regular insulin and dinnertime regular
insulin from 8 units to 10 units each, and restored 6 units
of lunchtime regular insulin. Id. Defendant Ahmed
continued to provide Plaintiff sliding scale doses of regular
insulin at mealtimes. Id.
trial, Plaintiff testified that Defendant Ahmed's May 23,
2013 changes to Plaintiff's insulin regimen prevented
Plaintiff from eating carbohydrates: “I could eat a
salad, for instance. They give you half a cup of a salad.
That has no carbohydrate value.” Tr. at 187:20-22.
“I went the first week with absolute minimal food. The
second starting in June, I started trying to eat a small
amount of morsels in the morning because I thought my body
could get rid of it through the daytime.” Id.
at 197:16-19. Further, Plaintiff testified that the regimen
change caused him fear. Id. at 188:9-10. Plaintiff
also testified that once after the May 23, 2013 regimen
change, Plaintiff lost consciousness while eating dinner:
“A dinner tray had come and I remember putting it in
front of me. I was - I think I was starting to eat it. My - I
think I stuck a spoon in it or something, and the next thing
I know is I woke up and it was almost three hours
later.” Id. at 198:17-21.
contrast, Defendant Ahmed testified that Plaintiff's
vital signs between May 23, 2013 and August 5, 2013 were
“absolutely normal.” Tr. at 360:7-22. At each
appointment with Plaintiff, Defendant Ahmed or a nurse
evaluated Plaintiff's vital signs. Ex. 407.
Plaintiff's temperature, pulse, blood pressure,
respiration rate, and weight all remained constant.
Id. at 1-13. For example, Plaintiff's blood
pressure was 155/81 on May 21, 2013, and was 124/74 on July
3, 2013. Id. at 1. Plaintiff weighed 197 pounds on
May 21, 2013 and 198 pounds on July 3, 2013. Id.
asked if Plaintiff was diagnosed with ketoacidosis in 2013,
Plaintiff testified that Plaintiff diagnosed himself with
ketoacidosis: “Q: Diagnosed by anyone? A: Myself, yes,
absolutely, from training.” Tr. at 255:2-11.
The Parties Presented Conflicting Expert Testimony on
Defendant Ahmed's Adjustment to Plaintiff's Insulin
medical experts testified at trial, Dr. Suneil Koliwad for
Plaintiff and Dr. Paul Fitzgerald for Defendants. Dr. Koliwad
testified that Plaintiff's regimen prior to Defendant
Ahmed's May 23, 2013 adjustment had “the essential
elements that I think every patient with Type 1 diabetes must
have. It has base insulin, mealtime insulin, and a safety net
of sliding scale in case those two things aren't
sufficient for whatever reason.” Tr. at 449:2-6. Dr.
Koliwad acknowledged that a doctor must adjust a Type 1
diabetic's insulin regimen: “Making changes to
insulin regimens for individuals with diabetes, and in
particular for people with Type 1 diabetes who know that
their wellbeing moment to moment depends on the insulin that
they take, is always necessary.” Id. at
Dr. Koliwad testified that the specific adjustments Defendant
Ahmed implemented on May 23, 2013 were not appropriate:
“All of the mealtime insulin has been withheld. The
patient is no longer getting any insulin specifically because
he's eating food, and that's intolerable for somebody
with Type 1 diabetes, and it's completely inappropriate
as far as standard medical care or somebody with Type 1
diabetes is concerned.” Id. at 451:11-17.
Further, Dr. Koliwad testified that a lack of mealtime
insulin would cause hyperglycemia, and possibly ketoacidosis:
“You know what is going to happen if you don't give
somebody mealtime insulin who has Type 1 diabetes. Their
sugars are going to go up really high and they're highly
likely to go into diabetic ketoacidosis.” Id.
Koliwad testified that at the least, Defendant Ahmed should
have conducted a ketone test to determine whether Plaintiff
was suffering from ketoacidosis: “[T]he very least you
could do is follow the ketones routinely, you know, a couple
of times a day to see whether any of that evidence is
emerging, especially when you see the blood glucose going up
like this.” Id. at 462:20-25. Dr. Koliwad
testified that Plaintiff's high blood sugar levels could
have harmed Plaintiff: “[H]igh blood sugars, in and of
themselves, are an extreme stress on the system.”
Id. at 476:3-4. Dr. Koliwad also testified that
Plaintiff might have had ketoacidosis:
[B]ased on the fact that I know he was getting insufficient
insulin for days and days and days, if not really weeks, my
expectation would be that he would go into diabetic
ketoacidosis. And so I think it's completely reasonable
to conclude that that might have happened to him at any point
during that period before the mealtime insulin was
sufficiently added back.
Id. at 472:19-25.
expert Dr. Fitzgerald disagreed. Dr. Fitzgerald opined that
Plaintiff's diet may have affected Plaintiff's blood
sugar readings: “Well, it's - diet is very
important in, in both Type 1 and Type 2 diabetes, and we -
don't let anyone tell you different. It's very
important. If someone eats a good diabetes diet, which is
fairly low in carbohydrates, it'll keep their blood sugar
from going up excessively into the 3- and 400 milligrams per
deciliter.” Id. at 530:7-12.
Fitzgerald testified that Defendant Ahmed's insulin
regimen change was designed to prevent episodes of low blood
And I would say that during the first three weeks in May,
before this regimen was instituted, Mr. Peasley had had five
low blood sugars. And in the month before, in April, he's
had nine hypoglycemic episodes. This is way too many, and
that would be a rationale for ...