United States District Court, E.D. Michigan, Southern Division
DAVID L. RHINEHART and LEWIS RHINEHART, Joint Personal Representatives of the Estate of KENNETH A. RHINEHART, Deceased, Plaintiffs,
DEBRA SCUTT, et al., Defendants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
LEAVE TO FILE A SECOND MOTION FOR SUMMARY JUDGMENT ,
ORDERING BRIEFING, AND ADJOURNING THE TRIAL DATE
STEPHEN J. MURPHY, III United States District Judge.
first motion for summary judgment was previously denied and
they now move for leave to file a second motion, as required
by Local Rule 7.1(b)(2). In their reply brief, Defendants
also suggest a contingency plan: if the Court denies their
motion for leave, they provisionally move the Court to treat
their proposed, second motion for summary judgment as
implicitly denied, certify one of the questions in the case
to the Court of Appeals for the Sixth Circuit, and stay the
proceedings pending that Court's decision. For the
reasons below, the Court will grant the motion for leave,
permit further briefing, and adjourn the trial date.
the denial of summary judgment has no res judicata effect,
the Court may, in its discretion, permit a second motion for
summary judgment. Kovacevich v. Kent State Univ.,
224 F.3d 806, 835 (6th Cir. 2000). Permitting a second
summary judgment motion is especially appropriate if there
has been an intervening change in controlling law, a party
has expanded the factual record, or there is a "need to
correct a clear error or prevent manifest injustice."
Durfee v. Rich, No. 02-10041, 2007 WL 1011066, at *9
(E.D. Mich. Mar. 30, 2007) (quoting Whitford v.
Boglino, 63 F.3d 527, 530 (7th Cir.1995)).
argument for another summary judgment motion is twofold.
First, they argue that a recent de bene esse trial
deposition clarified a previously murky question of fact
which now justifies summary judgment for Defendant Stevenson.
Second, they argue that a recent Sixth Circuit opinion
"directly contradicts this Court's conclusion of
law" and therefore urge the Court to consider their
arguments anew. ECF 318, PgID 7927.
argue that new facts have expanded the record; specifically,
the de bene esse trial deposition of Dr. Jeffrey
Stieve. Defendants argue that Stieve's testimony
clarifies what Stevenson's responsibilities were
concerning Rhinehart and, in so doing, justify granting
summary judgment on Stevenson's behalf. Unfortunately,
Plaintiffs failed to address this argument in their response
brief. Because the expanded factual record may be dispositive
of certain claims and may even warrant the dismissal of one
of the two Defendants, the Court will grant the motion for
leave to amend and order Plaintiffs to respond to the motion
for summary judgment.
recent decision cited by Defendants is Mattox v.
Edelman, another deliberate indifference case arising
from the Cotton Facility. 851 F.3d 583 (6th Cir. 2017),
reh'g denied (Apr. 6, 2017). Mattox, the
prisoner in that case, experienced chest pains, dizziness,
and other symptoms which he reported to the prison medical
staff. They promptly performed an EKG and sent him to the
emergency room, where an outside cardiologist examined Mattox
and recommended he "undergo a cardiac catheterization
procedure to rule out coronary artery disease, and determine
whether he needed a stent or surgery to prevent a future
heart attack." Id. at 586-87. But Dr.
Edelman-the same Dr. Edelman who is a defendant in this
case-denied approval of the request. Less than a month later,
Mattox experienced the same symptoms as before, but, after
reviewing his records with the nurse on duty, the
physician's assistant ("PA") decided not to
send him to the emergency room. Mattox's pain continued
into the next morning, however, so the attending physician
sent him to the emergency room after all. Again, the doctors
recommended a cardiac catheterization procedure; again,
Edelman denied the request to perform one. "Mattox's
chest pains continued intermittently over the next two and a
half years, requiring multiple hospitalizations[, ]"
until he "finally received the cardiac catheterization
test he had been seeking, which ruled out heart disease, and
suggested that his symptoms be treated with medication."
Id. at 588.
appeal, Mattox took aim at the PA. He claimed that she
"was deliberately indifferent to his serious medical
needs by failing to send him to the emergency room" on
that second night, id. at 597, and "argue[d]
that: (i) his heart attack symptoms were so obvious that he
does not need to show medical evidence verifying that he
needed treatment; and (ii) there is no requirement that he
show that he was actually suffering from a serious medical
condition as long as he can show that prison staff failed to
respond to circumstances that created a substantial risk of
serious harm." Id. at 598. The Court of Appeals
rejected these arguments and explained that, even when
proceeding under the "obvious malady theory" of
Blackmore v. Kalamazoo Cty., 390 F.3d 890 (6th Cir.
2004), a plaintiff "must still show 'that he
actually experienced the need for medical treatment, and
that the need was not addressed within a reasonable time
frame.'" Id. (quoting Blackmore,
390 F.3d at 900). Since it was "clear from the face of
Mattox's complaint that he did not actually need medical
care" that night, the Court affirmed the district's
court's dismissal of the claim. Id. at 598.
case is different. Although Mattox had initially included
Edelman as a co-defendant, he abandoned those claims on
appeal. Id. at 587 n.2. Had the Court of Appeals
addressed those claims, Mattox would be more
analogous to the case at bar, since there too, Edelman
decided against the recommended treatment of specialists. But
on appeal. Mattox instead proceeded on the theory that his
self-reported symptoms, standing alone, required the PA to
send him to the emergency room. In contrast, Rhinehart was
not the one who told Defendants he needed a biopsy, a TIPS
procedure, diagnosis, or particularized monitoring -
specialists determined that he needed them. Plaintiffs allege
that, in the face of those recommendations, Defendants failed
to act, or, when they did act, they did so belatedly or for
reasons other than medical judgement.
leaves two related questions for the Court to resolve here.
The first is whether a specialist's recommendation for
treatment or diagnosis is itself a stand-alone medical need
under Blackmore. In other words, is a cancer
screening a medical need distinct from cancer treatment when
the screening is recommended by a specialist who has examined
the patient? The second question then flows from the first:
does a specialist's recommendation for a diagnostic
procedure relieve the plaintiff from having to show that he
actually needed additional treatment? Because deliberate
indifference claims center around prisoners' exposure to
risks, it stands to reason that when a doctor flouts a
specialist's recommended treatment for reasons other than
medical judgment, the objective prong of deliberate
indifference is ...