United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' SUMMARY JUDGMENT MOTION, AND GRANTING
DEFENDANTS' RULE 702 MOTION
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE.
Juanita McBeth broke her arm when she fell onto a concrete
floor at the Pueblo County Detention Center. She claims that
Defendant Daniel Fitzgerald, an EMT at the Detention Center,
was deliberately indifferent to her medical needs, needlessly
leaving her in pain overnight. She therefore sues Fitzgerald
for violation of her Fourteenth Amendment Due Process right
to adequate medical care in pretrial detention. She also sues
Fitzgerald, together with his employer, Physician Health
Partners, Inc. (collectively, “Defendants”), for
before the Court are two motions: Defendants' Motion for
Summary Judgment (“Summary Judgment Motion”) (ECF
No. 88), and Defendants' Motion to exclude
Plaintiff's Expert Witness Christa A. Bakos, R.N.
(“Rule 702 Motion”) (ECF No. 92). For the reasons
explained below, the Court denies the Summary Judgment Motion
as to McBeth's deliberate indifference claim, but grants
it as to McBeth's medical malpractice claim. As for the
Rule 702 Motion, it is granted because McBeth's
expert's testimony is largely irrelevant if there is no
longer a medical malpractice claim for the jury to decide,
and it is otherwise improper expert testimony.
SUMMARY JUDGMENT ANALYSIS
judgment is warranted under Federal Rule of Civil Procedure
56 “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). A fact is “material” if,
under the relevant substantive law, it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue
is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
analyzing a motion for summary judgment, a court must view
the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). In addition, the Court
must resolve factual ambiguities against the moving party,
thus favoring the right to a trial. See Houston v.
Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.
following facts are undisputed unless attributed to a party,
or otherwise noted.
evening of June 1, 2016, police officers arrested
McBeth-apparently for driving while intoxicated-and booked
her into the Pueblo County Detention Center. (ECF No. 25
¶¶ 15-16; ECF No. 88 at 3, ¶ 3; ECF No. 103 at
2, ¶ 3.) McBeth made comments that the arresting officer
interpreted as an expression of suicidal intent, so she was
taken to a changing cell where she would be required, for her
own protection, to remove her clothing and instead wear only
a smock. (ECF No. 88 at 3, ¶ 6.)
at the Detention Center that night was Defendant Fitzgerald,
an EMT employed by Physician Health Partners, which provides
medical services at the Detention Center under a contract
with Pueblo County, Colorado. (Id. ¶¶
1-3.) When detention officers took McBeth to the changing
cell, Fitzgerald was nearby, but outside of the cell.
(Id. at 4, ¶ 7.)
summary judgment record does not state whether McBeth
voluntarily removed her clothes or if detention officers
forcibly removed them. At some point, however, she was standing
naked in the corner of the changing cell, facing the wall,
and struggling against detention officers' attempts to
control her. That is where a Detention Center video
(Defendants' Exhibit E, see ECF No. 94) begins.
The video, which has no audio, depicts two detention officers
holding McBeth by her arms and struggling to control her,
with a third detention officer holding a smock and seemingly
looking for an opportunity to place it on McBeth. A fourth
officer stands behind the rest of them, pointing a taser at
McBeth's back. The struggle lasts for about twenty
seconds, after which the officer with the smock moves out of
the way and the officers attempting to control McBeth by her
arms step to the side, giving the officer with the taser a
clear shot. That officer discharges his taser, with the two
prongs striking McBeth on the left side of her back. McBeth
immediately falls backward and the officers on either side of
her let go of her arms. McBeth does nothing to break her own
fall and so her back, elbows, and head strike the concrete
floor with an appreciable amount of force.
still outside the cell, heard the commotion and an
officer's announcement that a taser would be fired. (ECF
No. 88 at 4, ¶ 9.) By the time the taser was fired,
Fitzgerald was in a position to see inside the changing cell
because he “saw Ms. McBeth fall to the ground, striking
her [left] arm on the ground.” (Id.)
video shows that, soon after hitting the ground, McBeth puts
her right hand to her forehead in a gesture reminiscent of
having a terrible headache. One of the officers soon grabs
McBeth's right arm and pulls it away from her forehead
and across her body, rolling her onto her stomach. The same
officer then removes the taser prongs from McBeth's back.
point, Fitzgerald enters the video. He kneels next to
McBeth's right hip and examines her back, where the taser
prongs had been. Although not clear in the video due to the
positions of the detention officers relative to the camera,
he also assessed that McBeth's “pulse was normal,
and she had good capillary refill, including in [her left
arm]. Ms. McBeth was also able to acknowledge the sensation
in her injured arm.” (ECF No. 88 at 4, ¶
Fitzgerald further says that McBeth “did not have any
obvious signs of broken bones or other injuries.”
(Id.) McBeth's expert claims, to the contrary,
that the video shows “visible bruising on Ms.
McBeth's left arm.” (ECF No. 103 at 7, ¶ 24;
ECF No. 92-1 at 7.)
examination took approximately 13-15 seconds, during which he
concluded that McBeth had suffered no significant injuries.
(ECF No. 103 at 3, ¶ 7; Defendants' Exhibit E.) The
video then shows him exiting the changing cell, after which a
detention officer places the smock over McBeth like a
blanket. One detention officer appears to be asking something
of McBeth, but McBeth waives that officer away with her right
arm. All of the officers then exit the picture (and
presumably the cell). The video ends with McBeth, still on
her stomach, propping herself up with her right arm and
looking at her left arm, which is in a somewhat unnatural
position, although it is not visibly injured.
record does not state whether Fitzgerald observed McBeth in
this position. But at some point soon after his interaction
with McBeth, Fitzgerald “contacted Nurse Brandi Atencio
to relay his observations of Ms. McBeth, and he was
instructed [that] no further care was needed for Ms. McBeth
unless something about her condition changed.” (ECF No.
88 at 5, ¶ 13.)
spent the night in the changing cell. (Id. ¶
14; ECF No. 103 at 4, ¶ 10.) According to Fitzgerald, he
“periodically checked on Ms. McBeth by observing her in
the cell sleeping with no apparent signs of distress.”
(ECF No. 88 at 5, ¶ 14.) But McBeth says that she
repeatedly called out through the night “that she
needed medical attention and that her arm was in pain,
” but to no avail. (ECF No. 103 at 4, ¶ 10.)
conducted McBeth's “Receiving Screening” the
following morning (June 2, 2016) at 5:49 AM. (ECF No. 88 at
5, ¶ 15.) He had tried to conduct that screening the
previous evening (before the incident in the changing cell)
but could not due to McBeth's intoxication and refusal to
cooperate. (Id. at 3, 5, ¶¶ 4, 15.)
According to Fitzgerald, McBeth complained of “arm
pain” during the June 2 Receiving Screening.
(Id. at 5, ¶ 16.) But, says Fitzgerald,
“Ms. McBeth's vital signs, including her pulse and
the capillary refill in her arm, and both were still normal.
Ms. McBeth's sensory motor sensation was also normal.
There was bruising, but no signs of fracture.”
(Id. (citations omitted).)
tells a different story of the Receiving Screening. She says
that she specifically complained of a broken arm, not just
arm pain, and that she was using her right arm to hold up her
left arm, because she could not lift the latter. (ECF No. 103
at 4-5, ¶¶ 12-13.) Fitzgerald “told her to
move her fingers; when she complied, Defendant Fitzgerald
told her she was ‘fine.' . . . Fitzgerald told her
that, when he had broken his arm in the past, he could not
move his fingers.” (Id. ¶ 13 (citation
omitted).) As for Fitzgerald's claims about checking
vital signs such as pulse and capillary refill, McBeth
asserts that “Fitzgerald never physically examined her,
merely visually inspected her arm.” (Id.)
shift ended at 7:00 AM that morning. (ECF No. 88 at 5, ¶
17.) “He advised Randy Allen, the EMT who came on shift
after him, about the incident involving Ms. McBeth.”
apparently appeared in court that morning because deputies
escorting her from the courthouse back to the Detention
Center noticed that she was in significant pain. (ECF No. 103
at 5, ¶¶ 14-16.) A sergeant then arranged for
photographs to be taken of McBeth's injuries.
(Id. ¶ 17.) Those photos show significant
bruising on McBeth's left arm and possibly a
deformity-something consistent with a fractured bone poking
from under the skin. (ECF No. 103-3.)
AM, after the photos were taken, EMT Allen examined McBeth.
(ECF No. 103 at 5, ¶ 18.) His ...