Nancy Morris v. Andrew Bland

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1115

NANCY MORRIS, as personal representative of the Estate of
David Allan Woods,

Plaintiff - Appellee,

v.

ANDREW J. BLAND; RICHARD T. BURKHOLDER, SGT, officially and
individually; LEEMON E. CARNER, PFC, officially and
individually; JERRY SPEISSEGGER, JR., PFC, officially and
individually; PRISCILLA GARRETT, SGT, officially and
individually,

Defendants – Appellants,

and

THE HOPE CLINIC, LLC; TEMISAN ETIKERENTSE; SUE BRABHAM,
R.N., officially and individually; H. WAYNE DEWITT, Berkeley
County Sheriff, officially and individually; JAMES M.
BROPHY, PFC, officially and individually; PATRICIA D.
COLLINS, SGT, officially and individually; CHARLES A.
DESANTO, CPL, officially and individually; ASHLEY A. HARBER,
PFC, officially and individually; KANSAS DAAB, PFC,
officially and individually; JOHN DOES, officially and
individually; CLIFFORD L. MCELVOGUE, Director, officially
and individually; BERKELEY COUNTY; BERKELEY COUNTY SHERIFF’S
DEPARTMENT; KENDRA MOORE, Staff SGT, officially and
individually,

Defendants.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Richard M. Gergel, District
Judge. (5:12-cv-03177-RMG)
Argued: September 20, 2016 Decided: November 16, 2016

Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Harold C. Staley, Jr., ELROD POPE LAW FIRM, Rock Hill,
South Carolina, for Appellee. ON BRIEF: Eugene P. Corrigan,
III, Amanda K. Dudgeon, CORRIGAN & CHANDLER LLC, Charleston,
South Carolina; James A. Stuckey, Jr., Alissa C. Lietzow,
STUCKEY LAW OFFICES, LLC, Charleston, South Carolina, for
Appellants. Garrett B. Johnson, ELROD POPE LAW FIRM, Rock Hill,
South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

This appeal arises from a plaintiffs’ verdict in connection

with the death of David Allan Woods during his incarceration at

the Hill-Finklea Detention Center (“HFDC”) in South Carolina.

The jury awarded substantial damages based on its finding that

Andrew J. Bland, Richard T. Burkholder, Leemon Carner, Priscilla

Garrett, and Jerry Speissegger, Jr. (collectively,

“Appellants”), five HFDC employees present during the final

weekend of Woods’s incarceration, had been deliberately

indifferent to Woods’s serious medical needs, and thereby

deprived him of rights guaranteed by the Eighth and Fourteenth

Amendments. On appeal, Appellants challenge various evidentiary

rulings, the punitive damages award, the setoff calculation, and

the denial of several post-trial motions. Finding no error, we

affirm. *

I.

We detail the facts in the light most favorable to the

jury’s findings and conclusions. David Allan Woods, then 50

years old, was incarcerated at HFDC from October 12 to November

8, 2010. At the time of Woods’s incarceration, HFDC had

contracted with Hope Clinic, LLC to provide medical services to

*Although counsel for Appellants did not appear for oral
argument in this case, we have fully considered the arguments
set forth in the brief filed on their behalf.

3
inmates. Medical personnel did not generally work onsite after

5 p.m., before 9 a.m., or over the weekend. Accordingly, if a

medical issue arose after hours, a shift sergeant was

responsible for alerting on-call medical staff.

At approximately 10:30 p.m. on Friday, November 5, 2010, in

response to a call from the central tower, Shift Sergeant

Garrett found Woods shaking on the floor of his cell. Garrett

asked Woods what was wrong, if he could walk, and if he could

stand up. Woods responded “I don’t know” to each question.

J.A. 487-88. Garrett helped Woods to his feet and directed him

to a cell in M-Pod, a medical observation unit with cameras that

fed to the front control station. Privates were assigned to the

front desk and were responsible for monitoring the video feed

during four-hour shifts.

Once in his M-Pod cell, Woods was unsteady on his feet and

needed assistance from his new cell mate, Freeman Ingraham, when

taking off his uniform, sitting on the toilet, and drinking

water from a cup. On several occasions, Ingraham attempted to

contact the front desk through the intercom system. When

Garrett returned to the cell, Ingraham informed her that he

believed he saw blood in Woods’s stool. Because Woods and

Ingraham had flushed the toilet, Garrett was unable to verify

the presence of blood.

4
 At 4:28 a.m. on Saturday, November 6, Speissegger entered

the cell to administer Woods’s medication. Woods did not

respond when asked if he would take his medication. Woods’s

hands were visibly shaking and, despite instructions from both

Speissegger and Ingraham, Woods was unable to cup his hand to

accept the medication. After the medication fell to the ground,

Speissegger left and noted in his log that Woods had refused the

medication.

At 5:30 a.m., Burkholder relieved Garrett as shift

sergeant. Garrett notified Burkholder of Ingraham’s report of

blood in Woods’s stool, but Burkholder did not call the nurse or

attempt to observe any continued presence of blood. Burkholder

testified that he visited Woods once during this shift, during

which he “saw [Woods] walking” and believed Woods “was fine.”

J.A. 634.

The record contains several clips of Woods taken during

Burkholder’s shift. In one, Woods stands swaying in the middle

of his cell before falling backward onto his bunk. In another,

Woods is lying on his bunk with a dark substance covering the

lower half of his uniform and bed. Burkholder noted in his log

that Woods was “lying in his own feces and refused to shower.”

J.A. 650, 1165-66. Garrett returned to duty at 5:30 p.m., and

she received and read the above log entry. Another video clip

5
from approximately 12:20 a.m. on Sunday, November 7, shows that

Woods’s condition remained unchanged.

At approximately 12:30 a.m. on November 7, Garrett arranged

for a work crew, including Carner and Speissegger, to clean

Woods’s cell and escort Woods to the showers. Carner testified

that Woods stood, walked, undressed, and bathed without

assistance. However, Garrett observed that Woods’s uniform was

soiled with a dark, black, and hardened substance, and she

noticed he was shaking, disoriented, and unsteady.

Approximately 30 minutes after he returned to his cell, Woods

appeared disoriented and struggled to put on his uniform. Three

hours later, when Carner brought Woods his breakfast, Woods was

lying naked on the floor. Woods was disoriented, shivering, and

barely able to stand, and he required assistance when putting on

his uniform. Carner believed that Woods’s symptoms were the

result of waking up on the cold floor, not from any need for

medical attention.

Garrett and Burkholder changed shifts at approximately 5:30

a.m., at which point Garrett told Burkholder he may want to call

the nurse to treat Woods. Burkholder responded that he would

contact the nurse later on in his shift, but he did not do so.

At approximately 6:00 a.m., another HFDC employee, James Brophy,

interacted with Woods. Brophy noticed that Woods had wet

himself, and he and another officer assisted Woods in changing

6
his uniform. Brophy prepared a written incident report wherein

he noted that Woods was disoriented, was “not able to stand but

for a short period of time,” “did not respond to any question

asked [of] him,” and “didn’t know where he was or why he was

here.” J.A. 597-98, 1171. The incident report was ultimately

passed to Burkholder. Burkholder testified that when he checked

on Woods, Woods “was up walking around, coherent, [and]

talking,” and Burkholder believed “[t]here was nothing wrong

with Mr. Woods at that time.” J.A. 659. Burkholder did not

call the nurse, but he copied the incident report and left it

for superior officers and medical staff to receive on Monday

morning.

At 5:30 p.m. on Sunday, November 7, Burkholder and Garrett

again changed shifts. Garrett checked on Woods shortly after 6

p.m. and found him sitting naked in his cell. She asked Woods

to put on his uniform to avoid the cold, and she asked if Woods

was in pain or had any complaints. Woods responded to all her

questions with grunts. Garrett testified that she believed

Woods was being “defiant,” though she admitted having no

knowledge of any past, uncooperative behavior from Woods. J.A.

504-05.

At 10:19 p.m., Bland was at the front desk and observed

Woods lying naked on the cell floor. Through the intercom,

Bland instructed Woods to get dressed. Woods stood up, walked

7
to the uniform lying on his bunk, and urinated onto it. Woods

then stood, trembling violently, as he held onto the wall for

support. At 2:15 a.m. on Monday, November 8, Bland entered

Woods’s cell to give him his medication. Woods was again unable

to properly cup his hand, and Bland noted in his log that Woods

had refused his medication. Bland testified that he believed

Woods was being “difficult.” J.A. 729, 737.

After a new sergeant came on duty on Monday, November 8,

the staff nurse was called to examine Woods. Woods was then

released with his sentence time-served and was transported to

Trident Medical Center, where he was found to be “stuporous” and

“hypotensive” with “a hemoglobin of 4.” J.A. 450-51, 1257.

Woods’s “prognosis was felt to be bleak” when he was admitted.

J.A. 1258. Woods then underwent several procedures to address

bleeding ulcers in his duodenum. Woods suffered a cardiac

arrest during the first procedure, but he was resuscitated. On

November 11, 2010, Woods suffered another major intestinal bleed

above his stomach. Woods passed away at 4:50 p.m. on November

11, 2010. An autopsy revealed his cause of death as

gastrointestinal bleeding from a duodenal ulcer, bleeding

esophageal ulcers, cirrhosis of the liver with esophageal

varices, and cardiac arrest secondary to gastrointestinal

bleeding.

8
 Appellee Nancy Morris, as personal representative of

Woods’s estate, filed this survival and wrongful death action

pursuant to 42 U.S.C. § 1983. Morris filed the action against

eighteen defendants: the Hope Clinic and two of its employees

(collectively, the “Hope Defendants”), as well as Appellants,

Berkeley County, its Sheriff’s Office, and eight other county

employees (collectively, the “County Defendants”). Prior to

trial, the district court approved a settlement reached by

Morris and the Hope Defendants. Ten of the County Defendants

were also dismissed voluntarily or by summary judgment. The

case then proceeded to trial only on Morris’s deliberate

indifference claim against Appellants. During trial, the

parties were limited to presenting evidence that related to the

period between November 5 and 8, 2010, when Appellants’

deliberate indifference allegedly occurred. The district court

also prohibited Appellants from introducing evidence regarding

the Hope Defendants, the settlement, their prior treatment of

Woods, or Woods’s history of alcohol use.

The jury determined that Appellants had been deliberately

indifferent to Woods’s serious medical needs during his last

weekend of incarceration. The jury awarded compensatory damages

of $500,000 jointly, punitive damages of $150,000 each against

Bland, Carner, and Speissegger, and punitive damages of

$1,000,000 each against Burkholder and Garrett. The district

9
court then resolved a number of post-trial motions filed by

Appellants. The district court denied Appellants’ motions for

judgment as a matter of law, new trial, and remittitur.

However, it granted in part Appellants’ motion for setoff and,

upon applying portions of the Hope settlement proceeds, reduced

the compensatory damages award to $171,875. Appellants timely

appealed. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1291.

II.

We begin by addressing Appellants’ various evidentiary

challenges. This Court reviews the district court’s rulings on

the admissibility of evidence for abuse of discretion. Minter

v. Wells Fargo Bank, N.A., 762 F.3d 339, 349 (4th Cir. 2014)

(citation omitted).

Appellants first argue that the district court improperly

excluded evidence related to the Hope Defendants, the

settlement, and their treatment of Woods before November 5,

2010. Appellants contend this evidence is relevant to

determining causation and the subjective state of mind required

for deliberate indifference. However, the district court

correctly noted that the central dispute at trial was whether

Woods’s need for medical treatment over his last weekend of

incarceration was obvious to a layperson such that Appellants

should have reported his symptoms to medical personnel.

10
Appellants repeatedly testified they had no knowledge of Woods’s

medical history. Nor did they provide any evidence to suggest

they relied on the Hope Defendants’ treatment history when they

observed and failed to adequately respond to Woods’s

deteriorating health over the November 5-8 period. Given these

considerations, we agree that the Hope Defendants’ role or

alleged negligence in treating Woods before this period was

irrelevant to the deliberate indifference claim. See, e.g.,

Cooper v. Dyke, 814 F.2d 941, 947 (4th Cir. 1987) (holding that

the paramedics’ negligence “could not have constituted an

‘intervening’ cause” where the plaintiff’s “claim was based on

defendants’ deliberate indifference to his . . . suffering after

the time of the initial paramedic exam.”). Accordingly, the

district court did not abuse its discretion in excluding the

aforementioned evidence.

Appellants also contend that the district court improperly

excluded evidence of Woods’s alcohol and drug use as well as its

impact on his medical condition. However, Appellants provide

nothing but mere speculation when they argue that Woods’s use of

alcohol and drugs “accelerat[ed]” the deterioration of his

health such that “no act or omission by Appellants proximately

caused his death.” Appellants’ Br. 48. Given the likely

prejudicial effect of such evidence, and given Appellants’

failure to articulate the relevance or probative value of this

11
evidence, we find no abuse of discretion in its exclusion under

Federal Rule of Evidence 403.

Finally, Appellants argue that the district court erred

when it “prohibited” Appellants from soliciting expert testimony

from Morris’s qualified medical expert, Dr. Jack Raba, as well

as Appellants’ two fact witnesses. Appellants’ Br. 44.

Contrary to their assertion, Appellants were permitted wide

latitude to vigorously cross-examine Dr. Raba regarding his

testimony, especially as it pertained to causation. We

therefore discern no abuse of discretion as to this expert

testimony.

We similarly find no abuse of discretion as to the

examination of Appellants’ two fact witnesses, Dr. John Sanders

and Dr. Ellen Reimers. Dr. Sanders was Woods’s treating

physician before and after his incarceration at HFDC, and Dr.

Reimers was the pathologist who conducted Woods’s autopsy.

Notably, however, neither witness prepared an expert report

pursuant to Federal Rule of Civil Procedure 26(a)(2)(B).

Numerous courts have held that a physician is exempt from this

written report requirement only as to opinions formed during the

course of treatment. See, e.g., Goodman v. Staples The Office

Superstore, LLC, 644 F.3d 817, 824-26 (9th Cir. 2011)

(collecting cases). Here, both Dr. Sanders and Dr. Reimers were

fully permitted to discuss their examination of Woods and their

12
diagnoses or findings. Their testimony was disallowed only to

the extent Appellants sought to “offer [expert] opinions as to

proximate cause” that were not formed during the course of

treatment and thereby fell outside the scope of their opinions

as mere fact witnesses. J.A. 380; see Fed. R. Evid. 701. Under

Federal Rule of Civil Procedure 37(c)(1), a party who fails to

provide information as required by Rule 26(a), including a Rule

26(A)(2)(B) expert report, is subsequently “not allowed to use

that information . . . at a trial” and may be sanctioned for

this failure. Fed. R. Civ. P. 37(c)(1). Accordingly, the

district court did not abuse its discretion in excluding the

above testimony from Dr. Sanders and Dr. Reimers.

III.

Appellants next contend that Morris failed to provide

adequate evidence to support the jury’s finding of deliberate

indifference and, as a result, the district court erred in

denying their Rule 50(b) motion for judgment as a matter of law

and their Rule 59(a) motion for a new trial. We review de novo

the denial of a Rule 50(b) motion. Durham v. Jones, 737 F.3d

291, 298 (4th Cir. 2013) (citation omitted). “If, viewing the

facts in the light most favorable to the non-moving party, there

is sufficient evidence for a reasonable jury to have found in

[the non-moving party’s] favor, we are constrained to affirm the

jury verdict.” First Union Commercial Corp. v. GATX Capital

13
Corp., 411 F.3d 551, 556 (4th Cir. 2005) (alteration in

original) (quoting Lack v. Wal-Mart Stores, 240 F.3d 255, 259

(4th Cir. 2001)). The denial of a Rule 59(a) motion is reviewed

for abuse of discretion, and it “will not be reversed ‘save in

the most exceptional circumstances.’” FDIC v. Bakkebo, 506 F.3d

286, 294 (4th Cir. 2007) (quoting Figg v. Schroeder, 312 F.3d

625, 641 (4th Cir. 2002)).

To prevail on an Eighth Amendment claim of inadequate

medical care, a plaintiff must establish both a subjective and

an objective component to her claim. Iko v. Shreve, 535 F.3d

225, 241 (4th Cir. 2008). “The plaintiff must demonstrate that

the [prison] officers acted with ‘deliberate indifference’

(subjective) to the inmate’s ‘serious medical needs’

(objective).” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 104

(1976)). A serious medical need is “one that has been diagnosed

by a physician as mandating treatment or one that is so obvious

that even a lay person would easily recognize the necessity for

a doctor’s attention.” Id. (quoting Henderson v. Sheahan, 196

F.3d 839, 846 (7th Cir. 1999)). To satisfy the subjective

component, the plaintiff must demonstrate that the officer had

“actual knowledge of the risk of harm to the inmate” and that

the officer “recognized that his actions were insufficient to

mitigate the risk of harm . . . arising from [the inmate’s]

medical needs.” Id. (internal quotation marks, citations, and

14
emphasis omitted). Whether an officer “had the requisite

knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from

circumstantial evidence.” Farmer v. Brennan, 511 U.S. 825, 842

(1994) (citations omitted).

Upon viewing the trial testimony and evidence provided by

the parties, we find that the evidence supports the jury’s

finding of a serious medical need. The videos of Woods’s

conditions, Ingraham’s recognition of Woods’s need for medical

attention, and Brophy’s testimony and incident report suggest

that Woods’s medical need was “so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.”

Iko, 535 F.3d at 241 (citation omitted). There is also ample

circumstantial evidence to support the subjective component of

this claim. Based on the obviousness of an inmate’s medical

need, a jury is permitted to conclude that the prison officers

knew of the risk of harm to the inmate. Farmer, 511 U.S. at

842. Moreover, “a factfinder may conclude that the official’s

response . . . was so patently inadequate as to justify an

inference that the official actually recognized that his

response to the risk was inappropriate under the circumstances.”

Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir.

2004). As described, testified to, and captured in the record,

the obviousness of Woods’s medical need and Appellants’

15
inadequate reactions to Woods’s symptoms amply support the

jury’s finding of deliberate indifference. Accordingly, we

discern no error in the district court’s denial of Appellants’

motions for relief under Rule 50(b) and Rule 59(a).

IV.

Appellants next challenge the jury’s punitive damages

award. Appellants contend that the evidence did not support a

finding of punitive damages under 42 U.S.C. § 1983, that the

punitive damages award was unconstitutionally excessive, and

that the awards against Garrett and Burkholder — which were

almost seven times the awards against the remaining Appellants —

indicate the jury erred by holding the shift sergeants liable

for the conduct of their subordinates. Appellants seek review

of the denials of their 50(b) motion for judgment as a matter of

law, motion for remittitur, and 59(a) motion for new trial on

the above bases.

We review de novo the denial of a 50(b) motion on a

punitive damages award, and we review de novo the denial of a

motion for remittitur on a punitive damages award alleged to be

constitutionally excessive. EEOC v. Fed. Express Corp., 513

F.3d 360, 370-71 (4th Cir. 2008) (citations omitted). We review

the denial of a 59(a) motion for abuse of discretion. Gregg v.

Ham, 678 F.3d 333, 342-43 (4th Cir. 2012) (citation omitted).

16
 Punitive damages are available in § 1983 actions “for

conduct that involves ‘reckless or callous indifference to the

federally protected rights of others,’ as well as for conduct

motivated by evil intent.” Cooper v. Dyke, 814 F.2d 941, 948

(4th Cir. 1987) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).

Based on the record before us, we conclude that Appellants’

deliberate indifference to Woods’s serious medical needs

satisfies the requirement that their conduct involve reckless or

callous indifference to Woods’s federally-protected rights. See

id. (finding that the “callous indifference required for

punitive damages is essentially the same as the deliberate

indifference required for a finding of liability on the § 1983

claim” for inadequate medical care).

Moreover, we do not find the punitive damages award to be

constitutionally excessive. Contrary to Appellants’

contentions, the factors enumerated by the Supreme Court in BMW

of North America, Inc. v. Gore, 517 U.S. 559 (1996), and State

Farm Mutual Auto Insurance Co. v. Campbell, 538 U.S. 408 (2003),

support the jury’s punitive damages award. First, given

Appellants’ repeated and deliberate indifference over a three-

day period, Woods’s physical vulnerability, and Woods’s

resulting physical harm, we find that Appellants’ misconduct was

sufficiently “reprehensible as to warrant the imposition of

further sanctions [beyond compensatory damages] to achieve

17
punishment or deterrence.” Campbell, 538 U.S. at 419 (citation

omitted). Second, the total punitive damages award is

approximately five times the compensatory damages award, and

single digit ratios generally do not present a constitutional

issue. Id. at 425. Appellants emphasize that the individual

punitive awards against Burkholder and Garrett reflect a 10-to-1

ratio, but a high ratio may nonetheless “comport with due

process where ‘a particularly egregious act has resulted in only

a small amount of economic damages.’” Id. (citation omitted).

Here, the compensatory damages award was deflated due to Woods’s

lack of lost wages. Based on the facts of this case, we “will

not use the low economic damages award to limit a punitive

damages award that was otherwise justified by the

reprehensibility of [Appellants’] behavior.” Siggers-El v.

Barlow, 433 F.Supp.2d 811, 819 (E.D. Mich. 2006). Third, we

note that the punitive damages award in this case is not

inconsistent with similar deliberate indifference cases. See,

e.g., Murphy v. Gilman, 551 F. Supp. 2d 677, 685-86 (W.D. Mich.

2008) (upholding a punitive damages award of $1.25 million

against each prison officer defendant for deliberate

indifference over a five-day period during which an inmate

received no medical care and little food and water, resulting in

his death).

18
 Finally, we find Appellants’ argument regarding supervisory

liability to be without merit. The evidence supports a finding

that Burkholder and Garrett were more culpable than Bland,

Speissegger, and Carner in their deliberate indifference to

Woods’s serious medical needs. Thus, the record in this case

supports Burkholder and Garrett’s larger share of the punitive

damages award. We therefore discern no error in the punitive

damages award or in the district court’s denial of Appellants’

post-trial motions.

V.

Finally, Appellants challenge the district court’s

calculation of the setoff amount. A district court’s decision

to set off a damage award is reviewed for clear error. Atlas

Food Sys. and Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d

587, 596 (4th Cir. 1996) (citations omitted).

“[S]tate law governs the substantive right to setoff.” Id.

Under South Carolina law, “[a] non-settling defendant is

entitled to credit for the amount paid by another defendant who

settles for the same cause of action.” Rutland v. S.C. Dep’t of

Transp., 734 S.E.2d 142, 145 (S.C. 2012) (citation omitted).

Here, given that Morris’s settlement with the Hope Defendants

divided the settlement proceeds 50/50 between the survival and

wrongful death claims, the district court applied the same

division with respect to the jury’s § 1983 verdict. Because

19
Woods could experience only one wrongful death, the court fully

offset the $250,000 of the jury verdict attributable to wrongful

death. The district court then considered the survival portion

of Morris’s claims. The court observed that the Hope Defendants

interacted with Woods over 29 days whereas Appellants’

interactions were limited to Woods’s last four days of

incarceration, which amounted to only 14% of the settlement time

period. However, the district court also noted that Woods

experienced more pain and suffering during his last weekend of

incarceration. Accordingly, the court allocated 25% of the

survival settlement proceeds to the survival portion of the jury

verdict. This determination resulted in a total setoff of

$328,125.

The above calculation is reasonably based on the evidence

and fairly advances the policy of preventing double recovery.

Accordingly, we discern no clear error or abuse of discretion in

the district court’s calculation.

VI.

For the foregoing reasons, the judgment is

AFFIRMED.

20