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Peasley v. Ahmed

United States District Court, N.D. California, San Jose Division

June 28, 2019

DAVID SCOTT PEASLEY, Plaintiff,
v.
ZAHED AHMED and MARIA LOPEZ, Defendants.

          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, 369

          LUCY H. KOH UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         I. BACKGROUND

         A. Factual Background

         Plaintiff 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.

         Plaintiff 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.

         Ordinarily, 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.

         If a 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.

         During 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.

         1. Defendant Ahmed Altered Plaintiff's Insulin Regimen in May 2013

         Plaintiff's 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.

         Throughout 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).

         On 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.

         On May 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.

         Plaintiff 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.

         Thus, 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.

         Defendant 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.

         Accordingly, 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.

         After 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.

         On May 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.

         After 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.

         Defendant 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 311:7-14.

         On June 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.

         Defendant 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.

         Defendant 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.

         On June 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.

         On June 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 404:8-10.

         On July 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.

         On 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.

         At 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.

         By 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.

         When 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.

         2. The Parties Presented Conflicting Expert Testimony on Defendant Ahmed's Adjustment to Plaintiff's Insulin Regimen

         Two 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 453:2-5.

         However, 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. at 455:11-14.

         Dr. 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.

         Defendants' 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.

         Dr. Fitzgerald testified that Defendant Ahmed's insulin regimen change was designed to prevent episodes of low blood sugar:

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 ...

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