Nelson v. Chelan County et al, No. 2:2022cv00308 - Document 44 (E.D. Wash. 2024)

Court Description: ORDER granting in part and denying in part 32 Motion to Strike; denying 15 Motion for Summary Judgment. Signed by Judge Thomas O. Rice.

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Nelson v. Chelan County et al Doc. 44 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 Estate of BLAIR AUSTIN NELSON, deceased, by and through PAUL NELSON individually and as Personal Representative, 9 Plaintiff, 10 v. NO. 2:22-CV-0308-TOR ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 CHELAN COUNTY, Washington, a municipal corporation; d/b/a CHELAN COUNTY REGIONAL JUSTICE CENTER; CHRISTOPHER SHARP; and KAMI ALDRICH, L.P.N., Defendants. 16 17 BEFORE THE COURT are Defendants’ Motion to Strike (ECF No. 32) and 18 Defendants’ Motion for Summary Judgment (ECF No. 15). The Court has 19 reviewed the record and files herein, determined that oral argument is unnecessary 20 in this matter, and is fully informed. For the reasons discussed below, Defendants’ ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Motion to Strike (ECF No. 32) is GRANTED in part and Defendants’ Motion for 2 Summary Judgment (ECF No. 15) is DENIED, 3 BACKGROUND 4 This matter arises out of the medical treatment of Ms. Blair Nelson, a 42- 5 year-old woman who was in the custody of the Chelan County Regional Justice 6 Center (“CCRJC”) when she died on November 21, 2021. ECF No. 26 at 8. The 7 Wenatchee Police Department arrested Ms. Nelson on November 20, 2021, for 8 suspicion of Driving Under the Influence. ECF No. 16 at 3. At the time of her 9 arrest, Ms. Nelson agreed to submit to a portable breath test, which recorded a 10 reading of 0.256 blood alcohol level. Id. at 4. She was then taken to the CCRJC 11 for DUI processing, but because the breath samples taken upon her arrival recorded 12 above 0.250, per jail policy, she was transported to Central Washington Hospital to 13 be medically cleared before booking. Id. During her emergency room visit, Ms. 14 Nelson indicated that while she was not in any pain, she was routinely drinking 70 15 shots of liquor per week. Id. at 5. She was treated by Dr. John Crane for a 16 contusion above her eye, and after submitting a breathalyzer test with a 0.249 17 result, was medically cleared for jail. Id. at 6. Upon her discharge, she was sent 18 with instructions for the onset for withdrawal symptoms, which included, “[c]all 19 your doctor now or seek immediate medical care if: You have trembling, 20 restlessness, sweating, and other withdrawal symptoms that are new or that get ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 2 1 worse.” ECF No. 26 at 3. 2 Relevant for the facts of the matter moving forward, CCRJC relies on a 3 combination of Lexipol Policies, which are a national set of policies for corrections 4 practice, to provide a framework for operation. ECF No. 19 at 3. The pertinent 5 provisions at issue here are Lexipol Policy 711 and Policy 717. The Court does 6 not have before it a formal copy of Lexipol Policy 711, and instead must rely on 7 parties’ retelling of the contents, which the Court understands to mean that 8 individuals who are brought to the facility in need of emergency medical attention 9 are required to be taken promptly to a medical facility. ECF No. 19-1 at 23. It 10 appears that was accomplished, as Ms. Nelson was taken to a hospital prior to 11 booking. 12 Lexipol Policy 717 deals with detoxification and withdrawal. Policy 717.1 13 states that “newly incarcerated individuals may enter the facility while under the 14 influence of a substance or they may develop symptoms of alcohol or drug 15 withdrawal. This policy is intended to ensure that the staff is able to recognize the 16 symptoms of intoxication and withdrawal from alcohol or drugs” for appropriate 17 medical treatment. ECF No. 30-10 at 2. Policy 717.2 requires that staff “respond 18 promptly to medical symptoms presented by inmates” because withdrawal can be 19 life-threatening. Id. And Policy 717.5 requires that: 20 Inmates who are observed experiencing severe, life-threatening intoxication (overdose) or withdrawal symptoms will be promptly seen ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 3 1 4 by a physician or referred to an off-site emergency facility for treatment . . . If the qualified health care professional determines that an inmate is at risk for progression to a more severe level of withdrawal, the inmate will be appropriately housed in an area where he/she can be kept under constant observation by qualified health care professionals or trained correctional staff. Id. at 3. 5 Additionally, CCRJC has its own internal policy regarding withdrawal 2 3 6 which states, among other things, that an assessment for withdrawal should be 7 conducted “when an inmate reports a history of alcohol and/or withdrawal or is 8 identified by staff as having potential for alcohol withdrawal if known history or 9 alcohol use . . . or if the inmate has a high index of suspicion for potential 10 withdrawal.” ECF 30-16 at 8. After withdrawal treatment has begun, inmates will 11 be “monitored in medical observation by staff until stable and cleared by medical 12 staff.” Id. 13 After being medically cleared by the hospital, Ms. Nelson was then 14 transported back to CCRJC in the early hours of November 21, 2021 and filled out 15 a Medical Screening Form upon her arrival. ECF No. 16 at 6–7. Because of the 16 early hour, she was observed by Corrections Deputy Christopher Norse rather than 17 a medical professional at her initial medical intake.1 Id. at 8. Ms. Nelson told 18 19 1 20 work sometime around 6 a.m. ECF No. 26 at 10. CCRJC instead relies on non- CCRJC does not have a 24-hour medical staff, instead the on-site nurses begin ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 4 1 Deputy Norse that she would be “detoxing from alcohol,” and Deputy Norse 2 checked a box stating that Ms. Nelson appeared “under the influence of alcohol,” 3 and made a note that she would be withdrawing from alcohol on the Medical 4 Receiving Screening Form. ECF No. 26 at 10. All other boxes on the form were 5 checked “no,” and Deputy Norse noted that Ms. Nelson was not currently 6 displaying withdrawal symptoms. ECF No. 16 at 7. Deputy Norse then provided 7 Ms. Nelson with a pitcher of Gatorade, and placed her in a holding cell at 3:14 a.m. 8 Id. at 7–8. He then deposited all of Ms. Nelson’s screening paperwork in a box for 9 medical staff to review when they arrived for their shift. Id. at 8. There is no 10 11 surveillance video of her time in the holding cell. ECF No. 26 at 10. Ms. Nelson was moved from the holding cell to a private cell at 6:25 a.m. 12 Id. From this point onward, parties generally disagree on many of the material 13 facts. Defendants assert that Ms. Nelson was properly monitored by correction 14 staff between 7:45 a.m. and 11:38 a.m., as evidenced by the surveillance footage of 15 her cell. Id. During that time, according to Defendants, Ms. Nelson was altogether 16 peaceful, sleeping comfortably and showing no sign of agitation. Id. at 9. Plaintiff 17 asserts that because no check was performed on Ms. Nelson, despite the presence 18 19 medical staff to do after hour intake and requires that they be trained via Lexipol 20 Policy 711 and Lexipol Policy 717. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 5 1 of medical staff during this time, there is no way to substantiate the statement that 2 she was not distressed based on surveillance footage. ECF No. 26 at 3. Further, 3 while Defendants state that Ms. Nelson used the phone and walked without trouble 4 during this time, Plaintiff asserts that she did have difficulty and agitation using the 5 telephone in her cell and was having difficulty reaching anyone on the other end. 6 ECF Nos. 16 at 8 and 26 at 3. 7 At approximately 12:15 p.m., two corrections deputies entered Ms. Nelson’s 8 cell to distribute her lunch. ECF No. 16 at 9. Ms. Nelson was unable to stand to 9 retrieve her sack lunch and had visible tremors. ECF No. 26 at 11. Because she 10 “was not doing well,” and the correction officers suspected alcohol withdrawal, 11 they alerted LPN Kami Aldrich, a member of CCRJC’s medical staff. Id. LNP 12 Aldrich examined Ms. Nelson at 12:25 p.m., and based on her agitation, anxiety, 13 nausea, and “severe tremors,” gave her a Clinical Institute Withdrawal Assessment 14 (“CIWA”) score of 10 or 11. ECF Nos. 16 at 11 and 26 at 13. The parties disagree 15 as to whether LPN Aldrich meant to categorize the tremors as “severe,” but 16 Plaintiff offers that the shaking was so apparent that LPN Aldrich was unable to 17 take Ms. Nelson’s blood pressure and persisted even when the arms were relaxed 18 rather than raised. ECF Nos. 16 at 11, ¶ 47 and 26 at 12, ¶¶ 21– 22. Based on the 19 CIWA assessed score of at least 10, CCRJC’s internal policy either permitted or 20 required LNP Aldrich to take certain action, including administering Tylenol, ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 6 1 Librium, thiamine, and folic acid.2 ECF Nos. 16 at 11, ¶¶ 45–46 and 26 at 13, ¶ 2 25. Plaintiff asserts that LPN Aldrich did not contact a medical provider as is 3 required by the internal policy, and likewise administered a “loading dose” of 100 4 milligrams of Librium, twice the permitted amount. ECF No. 26 at 13, ¶¶ 26, 28. 5 Defendants dispute this contention, asserting that LPN Aldrich did in fact contact a 6 medical provider, though Plaintiff disputes this fact as no documentation exists 7 showing contact with a provider. ECF No. 28 at 7. Librium is a narcotic and can 8 result in oversedation which in turn may compromise respiration due to its 9 interaction with the liver. ECF No. 26 at 13, ¶¶ 29–30. According to Plaintiff, 10 LPN Aldrich had to steady Ms. Nelson’s hands to administer the medications due 11 to her shaking. Id. at 14, ¶ 32. 12 13 2 CCRJC’s internal policy requires that after a CIWA is completed, inmates shall 14 be subject to monitoring by medical staff until cleared. ECF No. 30-16. Provision 15 two of the Alcohol Withdrawal Policy states that Thiamine, Folic Acid, and 16 Tylenol “may be initiated,” for inmates with a potential for or active withdrawal. 17 Id. However, provision three has no modifier, and instead simply states “[f]or a 18 CIWA score of [greater than] 8 start Librium and contact provider.” Id. Medical 19 staff is permitted to dose 50 milligrams of Librium every 6–12 hours on the first 20 day. Id. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 7 1 LPN Aldrich left Ms. Nelson’s cell at 12:29 p.m. ECF No. 26 at 12, ¶ 19. 2 Defendants assert that Ms. Nelson made two phone calls outside of her cell, and 3 returned at 12:44 p.m., appearing without any major withdrawal symptoms. ECF 4 No. 16 at 12, ¶¶ 49–50. After interacting with a corrections officer, who stated that 5 she “appeared fine,” Ms. Nelson laid down in her bunk, and was observed reaching 6 for what appeared to be a tissue that she placed in her mouth at 12:45 p.m. Id. at 7 13, ¶ 53. 8 Both parties agree at 12:58 p.m., Ms. Nelson experienced a noticeable 9 movement. ECF Nos. 16 at 13, ¶ 54 and 26 at 15, ¶ 36. Defendants insist that Ms. 10 Nelson’s movement was comprised of four separate myoclonic movements, 11 indicating cardiac arrest, rather than a tonic-clonic seizure as demonstrated in 12 alcohol withdrawal. ECF No. 16 at 13–14, ¶¶54–55. Plaintiff maintains that Ms. 13 Nelson experienced a seizure. ECF No. 26 at 15, ¶ 36. Both parties agree that 14 there was no more movement from Ms. Nelson until she was found dead in her cell 15 at 5:17 p.m. ECF Nos. 16 at 14, ¶ 56 and 26 at 16, ¶ 41. Plaintiff asserts that in 16 the hours between 12:58 p.m. and 5:17 p.m., Ms. Nelson was not placed on 17 medical monitoring, per jail protocol, received no additional assessment for 18 medical staff, and received inadequate check-ins from non-medical jail staff, thus 19 no one was alerted to the fact that she was in distress. ECF No. 26 at 15–16, ¶¶ 20 39–40. Further, according to Plaintiff, LPN Aldrich falsified Ms. Nelson’s medical ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 8 1 documentation, recording that 50 milligrams of Librium was administered between 2 8 a.m. and 11 a.m., and that another 50-milligram dose was given between 1 p.m. 3 and 3 p.m., rather than one “loading dose” around 12:25 p.m. Id. at 14, ¶ 34. 4 Defendants assert that adequate check-ins were performed, and at all times Ms. 5 Nelson was monitored by video surveillance. ECF No. 15 at 6. 6 Jail staff was unable to wake Ms. Nelson for dinner at 5:17 p.m. ECF No. 16 7 at 14, ¶ 56. Resuscitation of Ms. Nelson was called off at 5:28 when she was 8 pronounced dead. ECF No. 17 at 9. Rigor mortis had set in. ECF No. 26 at 16, ¶ 9 41. An autopsy was performed, and parties disagree as to its specific findings. 10 The autopsy report states that the cause of death is “chronic ethanolism with 11 steatohepatitis, dilated cardiomyopathy, and probable withdrawal.” ECF No. 20-5 12 at 1. At her deposition, the medical examiner who performed the autopsy stated 13 that in her opinion, the ultimate cause of death was chronic alcoholism. ECF No. 14 30-8 at 4. When asked, the medical examiner discussed the possibility that Ms. 15 Nelson’s death could have been caused by alcohol withdrawal, fatty liver 16 (steatohepatitis), or dilated cardiomyopathy individually, or in some combination, 17 as each is a symptom of chronic ethanolism. ECF No. 20-4 at 23. 18 Plaintiff brought this lawsuit on behalf of Ms. Nelson’s estate, claiming 19 negligence and a violation of 42 U.S.C. § 1983 against Chelan County Jail Director 20 Christopher Sharp, LPN Kami Aldrich, and Chelan County under a Monell theory ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 9 1 of liability. Defendants brought a Motion for Summary Judgment and 2 subsequently a Motion to Strike Plaintiff’s expert witnesses attached to the 3 Response to the Motion for Summary Judgment. ECF Nos. 15 and 32. 4 5 6 DISCUSSION I. Motion to Strike Defendants request the Court strike the testimony given from three of 7 Plaintiffs’ expert witnesses: Dr. Richard Cummins, Dr. Lori Roscoe (PhD), and 8 Catherine Fontenot, prior to considering the Motion for Summary Judgment. ECF 9 No. 33 at 2. Expert testimony is admissible if it meets the standards set forth in 10 11 12 13 14 Federal Rule of Evidence 702, which provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 15 16 17 Fed. R. Evid. 702. In addition to specific issues with each expert, Defendants take umbrage 18 with all three witnesses’ reference to the September 7, 2021, death of Joseph A. 19 Verville. ECF No. 33 at 4, 6, 7. Mr. Verville was booked into CCRJC on 20 September 5, 2021, with noted signs of opioid withdrawal. ECF No. 1 at 18; ECF ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 10 1 No. 21 at 10, ¶ 41. LPN Aldrich first assessed him for withdrawal and gave detox 2 medications at dinner the following evening, September 6. Id. Surveillance 3 footage showed Mr. Verville vomiting at least six times after taking the withdrawal 4 medication, but he was not assessed again by medical staff until he was found dead 5 at 8:50 a.m. on September 7. Id. at 8; ECF No. 26 at 17. After his death, LPN 6 Aldrich was notified of potential discipline on September 27, 2021, and was given 7 a verbal warning on November 23, 2021, after the death of Ms. Nelson. Id. at 19. 8 Defendants object to the expert testimony inclusion of Mr. Verville’s death as 9 impermissible character evidence. ECF No. 33 at 5. Plaintiff asserts that each of 10 the expert witnesses can discuss the death of Mr. Verville because it establishes a 11 notice of a pattern of conduct by CCRJC, Director Sharp, and LPN Aldrich. ECF 12 No. 42 at 4. 13 On summary judgment, “[a] party may object that the material cited to 14 support or dispute a fact cannot be presented in a form that would be admissible in 15 evidence.” Fed. R. Civ. P. 56(c)(2). The Court must only consider admissible 16 evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). 17 “A district court’s rulings on the admissibility of expert testimony ... will be 18 reversed only if ‘manifestly erroneous.’” United States v. Cazares, 788 F.3d 956, 19 976 (9th Cir. 2015). In considering whether expert testimony is based on a 20 sufficient foundation, the Court performs a “gate-keeping” role by evaluating the ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 11 1 relevance and reliability of all expert testimony, and examining whether the 2 testimony offered is “scientific.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 3 137, 147 (1999). While “[a]n opinion is not objectionable just because it embraces 4 an ultimate issue,” Federal Rule of Evidence 704(a), “an expert witness cannot 5 give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of 6 law.” United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017). 7 In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the 8 Supreme Court identified four non-exclusive factors that may be helpful to the 9 court in assessing the relevance and reliability of expert testimony, including (1) 10 whether a theory or technique has been tested; (2) whether the theory or technique 11 has been subjected to peer review and publication; (3) the known or potential error 12 rate and the existence and maintenance of standards controlling the theory or 13 technique's operation; and (4) the extent to which a known technique or theory has 14 gained general acceptance within a relevant scientific community. Id. at 593–94. 15 However, the Daubert factors do not constitute a “definitive checklist or 16 test.” Id. at 150. Indeed, the court's fundamental objective is to generally evaluate, 17 based on whatever factors are important to the particular case, the relevancy and 18 reliability of the testimony and not necessarily to explore factors that might not be 19 relevant to a particular case, such as whether the expert’s methods are subject to 20 empirical testing. Id. at 151. The proponent has the burden of establishing that the ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 12 1 pertinent admissibility requirements have been met by a preponderance of the 2 evidence. Fed. R. Evid. 104. 3 A. Dr. Richard Cummins 4 Dr. Cummins is a Washington State licensed medical doctor who is board 5 certified in both internal medicine and emergency medicine. ECF No. 27 at 6. Dr. 6 Cummins has been a member of the University of Washington Department of 7 Internal Medicine and Emergency Medicine since 1981, when he became an 8 attending physician. Id. He was promoted to full professorship in 1985 where he 9 remained for 28 years until retiring from clinical work in July 2020 to Professor 10 Emeritus. Id. During his tenure at the University of Washington Medical Center, 11 he practiced and taught other physicians in the field of emergency medicine, as 12 well as supervised nurses, medical students, and residents in training. Id. Over the 13 course of his career, Dr. Cummins has authored more than 150 articles and book 14 chapters on emergency care, including cardiac care. Id. 15 Dr. Cummins reviewed the entire case file, including medical reports, video 16 footage, discovery related documents, and deposition transcripts. ECF No. 27 at 8. 17 In doing so, he determined that CCRJC has a substandard training program and 18 procedures in place which led to; failure to medically assess Ms. Nelson when she 19 was booked into jail, failure to follow the internal alcohol withdrawal policy, and 20 failure to provide a proper level of assessment, monitoring, and care. Id. at 15. Dr. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 13 1 Cummins determined that had CCRJC rectified any of the failures in care, Ms. 2 Nelson would not have died. Id. 3 Defendants assert that Dr. Cummins is not qualified to give expert testimony 4 on the operations of medical procedures inside a corrections facility because his 5 experience is with emergency departments in hospitals. ECF No. 33 at 3–4. 6 Defendants also object to Dr. Cummins statements on the basis that he is offering 7 impermissible character evidence in his discussion of LPN Aldrich’s conformity 8 with past negligence, which is inadmissible character evidence. Id. at 4. Finally, 9 Defendants argue that Dr. Cummins should not be able to opine on causation 10 relating to the practice of jail staff and the death of Ms. Nelson. Id. Plaintiff 11 asserts, in part, that Dr. Cummins is not offering opinions about the correction 12 facility’s practices, but whether or not a standard of medical care was met while 13 Ms. Nelson was incarcerated, and therefore is within his sphere of expertise. ECF 14 No. 42 at 7. As to impermissible character evidence, Plaintiff offers that Dr. 15 Cummins’ opinion is valid under Federal Rule of Evidence 404(b)(2) as evidence 16 of a notice, pattern of conduct, knowledge, or absence of mistake. Id. at 17. 17 Further, Plaintiff asserts that Dr. Cummins is allowed to opine on the ultimate issue 18 of causation per Federal Rule of Evidence 704(a) and provides testimony in the 19 same scope as Defendants’ experts. 20 First, the Court finds that Dr. Cummins is qualified to give an expert opinion ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 14 1 on medical care, given his “knowledge, skill, experience, [and] education[.]” 2 Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1153 (E.D. Wash. 2009). 3 Despite the fact that Nelson’s death took place in a corrections facility rather than a 4 hospital, Dr. Cummins has extensive knowledge of treating patients in various 5 stages of medical stability, including alcohol withdrawal, given his career in the 6 emergency department. United States v. Garcia, 7 F.3d 885, 890 (9th Cir. 1993) 7 (finding that an expert’s experience in a field but lacks particularized knowledge in 8 the specific facts of a case, goes to the weight of the testimony rather than the 9 admissibility of the expert opinion). He is qualified to discuss how and when 10 medication should be administered, and allowed to give his opinion about the 11 initial medical intake and ongoing monitoring of inmates who are under the care of 12 jail medical staff. Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019) 13 (internal citations omitted) (“Accepted standards of care and practice within the 14 medical community are highly relevant in determining what care is medically 15 acceptable and unacceptable.”). While Dr. Cummins is not necessarily familiar 16 with medical practices in a correctional facility, he is familiar with the standard 17 practice regarding medical care for individuals receiving treatment for alcohol 18 withdrawal. 19 20 As an expert witness, Dr. Cummins is permitted to testify on causation. Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1237–38 (9th Cir. 2017) (“That ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 15 1 defendants may be able to offer other equally qualified medical opinion opposing 2 causation also does not support the idea that Daubert should bar the admission of 3 the testimony of the doctors offered as experts by Plaintiffs. Instead, the testimony 4 of [both expert doctors] should have been admitted as expert testimony under 5 Federal Rules of Evidence 702.”). Based on his own medical background and 6 review of the record, Dr. Cummins’s opinion on the ultimate issue, that Ms. 7 Nelson’s death was caused by failure in treatment for alcohol withdrawal 8 syndrome, is permissible. 9 Next, Defendants assert that Dr. Cummins’ testimony amounts to 10 impermissible character evidence, based on his comparison of the facts at hand 11 with the death of Mr. Verville. ECF No. 33 at 4. Specifically, Defendants assert 12 that Dr. Cummins’ report draws a comparison between Nurse Aldrich’s treatment 13 of Ms. Nelson and the treatment of Mr. Verville, improperly concluding that Nurse 14 Aldrich has a propensity to behave in a medically negligent manner. Id. at 5. 15 Plaintiff asserts that a comparison is not offered in violation of Federal Rule of 16 Evidence 404(b), but instead is offered to show a pattern of administering lower 17 than the established standard of care to inmates, or lack of knowledge or mistake 18 that a particular mode of operation would result in the death of an inmate under the 19 care of CCRJC. ECF No. 42 at 17–18. 20 In relevant part, Rule 404(b) provides that, “[e]vidence of any other crime, ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 16 1 wrong, or act is not admissible to prove a person's character in order to show that 2 on a particular occasion the person acted in accordance with the character.” Dr. 3 Cummins’ report references the Verville incident twice, and not in great detail. 4 ECF No. 27 at 8 and 12. The second reference in the report does seem to suggest 5 that a connection is being drawn between the incident involving Nelson and the 6 incident involving Mr. Verville: 7 8 9 10 Note that two months earlier 38-year-old Joseph A. Verville also died in custody at the Chelan County Regional Justice Center. Like Blair Nelson he was under the care of Kami Aldrich, LPN. ECF No. 27 at 12. While this evidence could be construed as character evidence suggesting that 11 jail medical staff may have engaged in substandard care, the Court agrees that 12 evidence of Mr. Verville’s death, and the circumstances surrounding it, are 13 indicative of lack of mistake or absence of notice. Regardless, under Federal Rule 14 of Evidence 703, a court is vested with the discretion to allow otherwise 15 inadmissible facts or data if the “probative value in helping the jury evaluate the 16 opinion substantially outweighs their prejudicial effect.” 17 Here, CCRJC’s internal policy requires a specific assessment and 18 monitoring framework for inmates withdrawing from alcohol dependence and 19 opioid dependence. ECF Nos. 30-10 at 2 and 30-16 at 8. Though not completely 20 analogous, the inclusion of the similar circumstances surrounding Mr. Verville’s ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 17 1 death may be indicative of absence of mistake or lack of accident via 2 noncompliance with the internal protocol, which would result in the death of an 3 unmonitored detoxing inmate. Fed. R. Evid. 404(b)(2). The Lexipol policy lists 4 alcohol withdrawal and drug detox under the same heading, requiring an inmate 5 experiencing either to be under “constant observation.” ECF No. 30-10 at 3. 6 Because Dr. Cummins is an expert being offered to opine on the standard of 7 medical care provided by CCRJC and the potential cause of Ms. Nelson’s death, 8 the Court declines to strike his expert testimony as it does not amount to 9 impermissible character evidence. 10 B. Dr. Lori Roscoe, PhD 11 Dr. Roscoe is a Certified Correctional Health Professional and a Certified 12 Correctional Health Professional – Registered Nurse. ECF No. 28 at 4. Dr. 13 Roscoe holds a bachelor’s degree in education, a bachelor’s degree in nursing, a 14 master’s degree in public administration with a healthcare concentration, a 15 master’s degree in nursing, a Doctorate Degree in Healthcare Administration, and a 16 Doctor of Nursing Practice degree. Id. She began work in correctional healthcare 17 in 1995 and today is the principal of Correctional HealthCare Consultants LLC and 18 The Correctional Nurse LLC. Id. Dr. Roscoe holds an active registered nurse 19 license in the states of Florida, California, Washington, and Georgia, and is 20 licensed as a nurse practitioner in Florida, California, Virginia, Georgia, and ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 18 1 Kentucky. Id. Over the course of her nearly 30-year career, Dr. Roscoe has 2 worked in a variety of correctional center settings relating to healthcare. Id. 3 Dr. Roscoe reviewed much of the information currently in the record, 4 including the Chelan County Coroner Report, medical documents, the Complaint, 5 discovery related information, and depositions. ECF No. 28 at 5–6. Based on this 6 review, she determined that Ms. Nelson received substandard nursing care. Id. at 7 11–12. As part of her finding, she determined that LPN Aldrich’s administration 8 of 100 milligrams of Librium without consulting a provider was illegal but opines 9 no further on this statement except to state that it deviates from the scope of 10 practice of a licensed practical nurse. Id. at 9–10. She also included Mr. Verville’s 11 death in determining that CCRJC has a substandard practice of care based on its 12 failure to take corrective action after Mr. Verville’s death. Id. at 11. 13 Defendants assert that Dr. Roscoe’s testimony that LPN Aldrich “illegally” 14 administered Librium without contacting a medical provider should be disregarded 15 pursuant to Rule 401 and 403. ECF No. 33 at 6. Further, Defendants allege that 16 her discussion of Mr. Verville amounts to character evidence and is therefore 17 inadmissible. Id. Plaintiff argues that Dr. Roscoe’s discussion of Mr. Verville’s 18 death is admissible for many of the same reasons as discussed under Dr. Cummins, 19 and that her characterization of the Librium dose as “illegal” is factual and should 20 therefore be permitted. ECF No. 42 at 21–22. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 19 1 As an expert on nursing practice, Dr. Roscoe is permitted to opine on 2 whether the standard of care administered from a nursing perspective. Much like 3 Dr. Cummins, the Court finds that her discussion on the treatment received by Mr. 4 Verville is relevant to Plaintiff’s argument that CCRJC’s medical care of inmates 5 is substandard. Fed. R. Evid. 704(a). 6 As to her statement that LPN Aldrich’s administration of Librium was 7 illegal, Plaintiff offers additional support that any nurse would understand that they 8 are not permitted to administer the narcotic without first contacting a provider. 9 ECF No. 28 at 9–10 (“When LPN Aldrich decided to administer 100 mg of 10 Librium, double the protocol dose, without consulting a provider, she was acting 11 far beyond her scope of practice as an LPN and illegally . . . The administration of 12 100 mg of Librium at that time significantly deviated from the standard of nursing 13 care and the decision by LPN Aldrich to do so greatly exceeded the scope of 14 practice of a licensed practical nurse.”). Federal Rule of Evidence 401 states that 15 evidence is relevant if, “it has any tendency to make a fact more or less probable 16 than it would be without the evidence; and the fact is of consequence in 17 determining the action.” And Rule 403 states that a Court may exclude evidence if 18 it presents the danger of, “unfair prejudice, confusing the issues, misleading the 19 jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” 20 While potentially dangerous, against the stated internal policy, and seemingly in a ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 20 1 general lexicon of knowledge that it should not be done, Plaintiff offers no 2 additional information that administering Librium without first contacting a doctor 3 is “illegal.” As such, the Court shall disregard the notion that LPN Aldrich’s 4 conduct was “illegal” based on Dr. Roscoe’s testimony, because Plaintiff has 5 provided no additional information to support this statement. However, the rest of 6 her report is admissible. 7 C. Catherine Fontenot 8 Ms. Fontenot is the Director of the Reception and Diagnostic Unit for 9 VitalCore Health Strategies and was retained for her expertise in correctional 10 practice. ECF No. 29 at 5. Ms. Fontenot has had a lengthy career in the field of 11 corrections. She obtained her Bachelor of Science in criminal justice in 1992 and 12 has worked in a variety of correctional settings since that time. Id. at 4. Ms. 13 Fontenot obtained her master’s degree in criminology from Grambling State 14 University in 2006, and became an adjunct professor at various institutions, 15 teaching courses covering Criminal Law, Criminalistics, Emergency Management, 16 Criminology, Juvenile Justice, Corrections Process, Drugs and Substance Abuse, 17 and the Death Penalty. Id. at 5. In her current role, Ms. Fontenot was hired to 18 streamline the inmate intake process and to implement an evidence-based health 19 and safety classification. Id. 20 In reaching her conclusion surrounding this case, Ms. Fontenot reviewed ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 21 1 much of the record, including the Complaint, medical records, discovery materials, 2 and deposition transcripts. ECF No. 29 at 5–9. She ultimately determined that 3 CCRJC was not proactive in rectifying standards of care that led to the death of 4 Mr. Verville, and these gaps in care led to the death of Ms. Nelson. Id. at 29. 5 Defendants’ object to the inclusion of Ms. Fontenot’s testimony because it 6 alleges her testimony is based on medical information, impermissible under 7 Federal Rule of Evidence 702 based on her background. ECF No. 33 at 7. They 8 also allege that the language used, and the conclusions drawn run afoul of the 9 character evidence requirement under Federal Rule of Evidence 401 and 402. Id. 10 Instead, Defendants urge that the Court look to a report prepared by its expert on 11 correctional facility practice, Penny Bartley, which refutes much of the contents of 12 Ms. Fontenot’s report. ECF No. 19-1 at 28–37. Plaintiff contends that Ms. 13 Fontenot’s testimony is not being offered for a medical purpose, but instead is 14 offered to demonstrate best corrections practices against the opinion of 15 Defendants’ expert witness. ECF No. 42 at 22. Plaintiff also rejects the 16 characterization of Ms. Fontenot’s report as containing “personal attacks.” Id. at 17 23. 18 First, the Court determines that Ms. Fontenot is permitted to provide expert 19 testimony in the field of correctional practices per Federal Rule of Evidence 702. 20 Not only has she provided similar expert testimony in other legal matters, but her ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 22 1 education, experience, and training in the field, including her extensive background 2 in both academia and in a correction setting, provides a foundation for her 3 perspective on what constitutes safe and effective jail practices. ECF No. 29 at 4– 4 5. As demonstrated both by Defendants’ own expert witness and additional filings, 5 many times jail officials without a formal medical background must nevertheless 6 be able to render rudimentary care, including identifying withdrawal symptoms, 7 and continued monitoring of inmates. ECF Nos. 19 at 5, 19-1 at 19–20, 23, 24. 8 The facts of this case demonstrate that in a jail system, staff must work together to 9 keep everyone safe, inmates and each other alike, and as such non-medical staff is 10 asked to do initial medical intake of inmates after hours and provide ongoing 11 monitoring to recognize withdrawal and alert medical staff. Id.; ECF No. 29 at 13. 12 In this spirit, the Court determines that no part of Ms. Fontenot’s opinion runs 13 afoul of Rule 702. She does not make a medical diagnosis of withdrawal beyond 14 the scope of what would have been asked of officials without a medical 15 background working in the jail and recognizes the difference between medical and 16 non-medical staff. ECF No. 29 at 15. 17 Further, while the language used by Ms. Fontenot is passionate at times, it is 18 not excludable under Federal Rule of Evidence 403. Many of the facts discussed 19 by all of Plaintiff’s expert witnesses are disputed by Defendants’ expert witnesses. 20 The solution to this predicament is not to strike the expert testimony, but rather it ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 23 1 should be subjected to “vigorous cross-examination, presentation of contrary 2 evidence, and careful instruction on the burden of proof” for a jury determination. 3 Daubert, 509 U.S. at 596. 4 5 6 7 With the exception of Dr. Roscoe’s reference to the administration of Librium being “illegal,” Defendants motion to strike is denied. II. Motion for Summary Judgment Defendants move for summary judgment because they allege that Plaintiff 8 will be unable to satisfy the requirements of 42 U.S.C. § 1983, both Director Sharp 9 and LPN Aldrich are entitled to qualified immunity, and that the County cannot be 10 held liable under a Monell theory of liability given the facts of this case. ECF No. 11 15 at 5, 11, 14, 15. 12 Summary judgment may be granted to a moving party who demonstrates 13 “that there is no genuine dispute as to any material fact and the movant is entitled 14 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the 15 initial burden of demonstrating the absence of any genuine issues of material fact. 16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the 17 non-moving party to identify specific facts showing there is a genuine issue of 18 material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). 19 “The mere existence of a scintilla of evidence in support of the plaintiff’s position 20 will be insufficient; there must be evidence on which the [trier-of-fact] could ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 24 1 reasonably find for the plaintiff.” Id. at 252. 2 For purposes of summary judgment, a fact is “material” if it might affect the 3 outcome of the suit under the governing law. Id. at 248. A dispute concerning any 4 such fact is “genuine” only where the evidence is such that the trier-of-fact could 5 find in favor of the non-moving party. Id. “[A] party opposing a properly 6 supported motion for summary judgment may not rest upon the mere allegations or 7 denials of his pleading but must set forth specific facts showing that there is a 8 genuine issue for trial.” Id. (internal quotation marks omitted); see also First Nat’l 9 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968) (holding that a party 10 is only entitled to proceed to trial if it presents sufficient, probative evidence 11 supporting the claimed factual dispute, rather than resting on mere allegations). In 12 ruling upon a summary judgment motion, a court must construe the facts, as well 13 as all rational inferences therefrom, in the light most favorable to the non-moving 14 party, Scott v. Harris, 550 U.S. 372, 378 (2007), and only evidence which would 15 be admissible at trial may be considered, Orr v. Bank of Am., NT & SA, 285 F.3d 16 764, 773 (9th Cir. 2002). 17 A. 18 Defendants assert that summary judgment is warranted with respect to LPN Section 1983 Claims Against Individual Defendants 19 Aldrich because she behaved objectively reasonably and provided adequate 20 medical treatment of Ms. Nelson. ECF No. 15 at 14. Further, they argue that both ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 25 1 LPN Aldrich and Director Sharp should be entitled to qualified immunity. Id. at 2 13. 3 To make a claim under § 1983 a plaintiff must show that (1) a person acting 4 under color of state law (2) committed an act that deprived the plaintiff of some 5 right, privilege, or immunity protected by the Constitution or laws of the United 6 States. Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988). Pretrial detainees 7 have a constitutional right to adequate medical care while in the custody of the 8 government and awaiting trial. Russell v. Lumitap, 31 F.4th 729, 738 (9th Cir. 9 2022). When a violation implicates a pretrial detainee’s Fourteenth Amendment 10 right to adequate medical care, the Ninth Circuit requires the claim to be evaluated 11 under an objective deliberate indifference standard. Castro v. Cnty. of Los 12 Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016). In the context of the Fourteenth 13 Amendment, a plaintiff making a claim for inadequate medical treatment via 14 failure to protect must show “more than negligence but less than subjective 15 intent—something akin to reckless disregard.” Id. at 1071 (citing Kingsley v. 16 Hendrickson, 576 U.S. 389 (2015)). The elements required to show violation of a 17 pretrial detainee’s Fourteenth Amendment Due Process rights by failure-to-protect 18 against individual officers include: 19 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 20 (2) Those conditions put the plaintiff at substantial risk of suffering ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 26 1 serious harm; 2 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and 3 4 (4) By not taking such measures, the defendant caused the plaintiff's injuries. 5 6 7 Id. The third element regarding whether the defendant’s actions were 8 objectively unreasonable is an inquiry that will “turn on the ‘facts and 9 circumstances of each particular case.’” Kingsley, 576 U.S. at 397 (internal 10 11 citation omitted). However, qualified immunity shields government actors from civil damages 12 unless their conduct violates “clearly established statutory or constitutional rights 13 of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 14 223, 231 (2009). On summary judgment, a court examines whether a state official 15 is entitled to qualified immunity by determining (1) whether the evidence viewed 16 in the light most favorable to the plaintiff is sufficient to show a violation of a 17 constitutional right and (2) whether that right was “clearly established at the time 18 of the violation.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 599 (9th 19 Cir. 2019). 20 ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 27 1 1. LPN Aldrich 2 With respect to the § 1983 claim against LPN Aldrich, Defendants assert 3 that all the care Ms. Nelson received was objectively reasonable, especially in light 4 of her discharge from the Central Washington Hospital and subsequent appearance 5 at CCRJC without apparent withdrawal symptoms. ECF No. 15 at 5–6. Further, 6 according to Defendants, LPN Aldrich followed proper CIWA protocol and 7 administered an appropriate standard of care, including providing a “loading dose” 8 of Librium, and simply made a mistake diagnosing the tremors experienced by Ms. 9 Nelson as “severe.” The reasonableness of LPN Aldrich was assessed by 10 Defendants’ expert witnesses, Dr. Jared Strote and Nurse Billye Tollackson, in 11 their review of the surveillance footage and related material. Id. at 7–8. 12 Plaintiff asserts that LPN Aldrich’s failure to assess Ms. Nelson until her 13 tremors were “severe,” general failure to follow CCRJC’s withdrawal protocol, 14 and failure to provide medical monitoring after administering medication, all 15 amount to inadequate medical treatment. ECF No. 25 at 6–7. When viewed in the 16 light most favorable to Plaintiff, reasonable minds could differ as to whether or not 17 LPN Aldrich acted with reckless disregard in her treatment of Ms. Nelson. 18 As to the four factor tests detailed in Castro v. County of Los Angeles for 19 determining a violation of the Fourteenth Amendment, LPN Aldrich made several 20 decisions with respect to Ms. Nelson’s care while confined, including choosing to ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 28 1 see her six hours after beginning her shift or while performing “med pass” at 9:30 2 a.m., dosing 100-milligrams of Librium, and then failing to provide medical 3 monitoring. ECF No. 26 at 11, 13, 14. 4 Second, reasonable minds could differ, evidenced by dueling expert 5 witnesses, as to whether this conduct put Ms. Nelson at risk of medical 6 complications. Nurse Roscoe, expert witness for Plaintiff, maintains that LPN 7 Aldrich fell below the requisite standard of care at several points, including failing 8 to visit Ms. Nelson’s cell after reviewing her intake paperwork, failing to 9 accurately document her treatment of Ms. Nelson, and failing to provide 10 appropriate medical monitoring given the CIWA policy. ECF No. 28 at 8–11. In 11 contrast, Nurse Billye Tollackson, expert witness for Defendants, provided 12 testimony that based on Ms. Nelson’s presentation without withdrawal symptoms 13 at the time of her intake after discharge from the hospital, LPN Aldrich saw her at 14 an appropriate time. ECF No. 21 at 4, 6. LPN Aldrich administered the 15 appropriate medication per jail protocol, and Ms. Nelson did not appear on video 16 surveillance to be in distress after care was given. Id. at 7–8. 17 As to the third element, whether LPN Aldrich’s actions were reasonable 18 with respect to the care provided, critical facts are still in dispute because it is not 19 readily apparent that she followed internal CCRJC’s protocol. Such facts, 20 discussed at length supra, include: whether LPN Aldrich was required to evaluate ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 29 1 Ms. Nelson when she arrived for her shift, whether she should have and did not 2 call a provider to discuss her withdrawal symptoms, and whether Ms. Nelson was 3 appropriately monitored after withdrawal protocol was initiated. This is weighed 4 in light of the additional circumstances, including Ms. Nelson’s discharge from the 5 Central Washington Hospital as fit for jail, the missing footage of her demeanor in 6 the holding cell between the hours of 3 a.m. and 6:30 a.m. on November 21, 2021, 7 Ms. Nelson’s general state before, during, and after being treated for withdrawal, 8 and LPN Aldrich’s decision not to place Ms. Nelson on a heightened level of 9 medical monitoring. ECF Nos. 16 at 6, 26 at 4; compare ECF Nos. 27 at 20, 28 at 10 7, and 20-5 at 2 (“I placed a BP (Blood Pressure) wrist cuff around her wrist but 11 due to the tremors it was unable to get [a] reading”) with 17-1 at 4 and 21 at 6. 12 And the fourth factor, whether Defendant caused her injuries, is highly 13 contested by both parties and is made no clearer by the autopsy report which listed 14 the cause of death as “chronic ethanolsim with steatohepatitis, dilated 15 cardiomyopathy, and probable withdrawal.” ECF No. 20-5 at 1. The medical 16 examiner who performed the autopsy stated each symptom of chronic alcoholism 17 could have independently or jointly have caused Ms. Nelson’s death. ECF Nos. 18 20-4 at 31–32 and 30-8 at 13–14. Plaintiff’s medical expert, Dr Cummins, has 19 testified that on a more probable than not basis, that Ms. Nelson’s death was 20 caused by the onset of alcohol withdrawal, and seems to suggest this could have ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 30 1 been further complicated by respiratory distress due to a negative interaction with 2 the dose of Librium. 3 ECF No. 27 at 10, 18. Defendants’ two expert witness reach 3 separate conclusions from each other, and from Dr. Cummins. Dr. Jared Strote 4 found on a more probable than not basis that Ms. Nelson’s death was caused by 5 cardiac arrest. ECF No. 17 at 8. And Dr. Carl Wigren found that Ms. Nelson’s 6 death was caused by hypoxia (a lack of oxygen to the brain) caused by heart 7 contraction due to cardia arrhythmia which in turn was caused by either fatty liver 8 disease or dilated cardiomyopathy. ECF Nos. 18 at 5, 18-1 at 7, and 38-8 at 10. 9 Nevertheless, Defendants assert that summary judgment is still proper 10 because qualified immunity applies. At step one, the Court assesses whether or not 11 there is a triable issue of fact as to whether a constitutional violation has been 12 committed. Hope v. Pelzer, 536 U.S. 730, 736 (2002). As discussed above, the 13 Court determines that a jury may find that LPN Aldrich’s medical care was 14 inadequately performed with reckless disregard, because many of the key facts are 15 still in dispute. 16 The second prong of the qualified immunity test is whether every reasonable 17 18 3 The Court once again notes that the autopsy did not reveal that Ms. Nelson died 19 from a Librium overdose but did reveal a diseased liver as a side effect from 20 overuse of alcohol. ECF No. 20-4 at 29. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 31 1 official in the same position as the defendant would understand that the conduct 2 was unlawful in the situation she was confronted with. Taylor v. Barkes, 575 U.S. 3 822, 824 (2015) (per curiam) (holding that for qualified immunity purposes, law is 4 “clearly established” if “every reasonable official would have understood that what 5 he is doing violates th[e] right”); Sandoval v. Cnty. of San Diego, 985 F.3d 657, 6 678 (9th Cir. 2021). Stated another way, a right is clearly established for qualified 7 immunity purposes if “it would be clear to a reasonable [prison official] that [her] 8 conduct was unlawful in the situation he confronted’ ... or whether the state of the 9 law [at the time of the alleged violation] gave ‘fair warning’ to [her] that [her] 10 conduct was unconstitutional.” Clement v. Gomez, 298 F.3d 898, 906 (9th 11 Cir.2002) (internal citation omitted). Here, Plaintiff must show that a reasonable 12 nurse would have understood that failing to assess Ms. Nelson for potential 13 withdrawal in a timely manner when medical shifts begin at 6 a.m., failing to 14 properly assess and document her interaction with Ms. Nelson, failing to contact a 15 provider based on withdrawal symptoms, and failing to provide substantive 16 medical monitoring after providing withdrawal medication, “presented such a 17 substantial risk of harm to [Ms. Nelson] that the failure to act was 18 unconstitutional.” Horton, 915 F.3d at 600. 19 20 As a preliminary matter, pretrial detainees have a constitutional right to adequate medical care while in the custody of the government and awaiting trial. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 32 1 Russell v. Lumitap, 31 F.4th 729, 738 (9th Cir. 2022); Sandoval, 985 F.3d at 667. 2 The Ninth Circuit has held that prison officials violate the Constitution when they 3 “deny, delay, or intentionally interfere” with medical treatment, Jett v. Penner, 439 4 F.3d 1091, 1096 (9th Cir. 2006), or when the official’s chosen treatment is 5 “medically unacceptable under the circumstances,” Snow v. McDaniel, 681 F.3d 6 978, 988 (9th Cir. 2012) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 7 1996)). A lack of exact factual similarity is no bar to the establish that notice of a 8 constitutional right exists in a given situation. Wilk v. Neven, 956 F.3d 1143, 1148 9 (9th Cir. 2020) (internal citations omitted). However, “for a right to be clearly 10 established, existing precedent must have placed the statutory or constitutional 11 question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per 12 curiam) (internal citation omitted). Precedent in this area casts a wide net and 13 includes instances of subpar medical attention which resulted in death, as well as 14 instances involving treatment of less than life threatening ailments, as 15 constitutionally deficient medical care. See Gordon v. Cnty. of Orange, 6 F.4th 16 961, 970, 72 (9th Cir. 2021) (finding a pre-trial detainee has a right to medical 17 screening and direct view safety checks); Clement, 298 F.3d at 905 (finding that 18 denying inmates a shower and medical attention for four hours after being exposed 19 to pepper spray while in confinement was clearly established as unconstitutional). 20 In viewing the facts in the light most favorable to Plaintiff, LPN Aldrich’s ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 33 1 care of Ms. Nelson could be described as both delayed and medically 2 unacceptable, given the internal withdrawal policy of CCRJC that she purportedly 3 did not follow. Plaintiff points to Norman v. Wellpath, LLC, No. 3:19-CV-02095- 4 MO, 2022 WL 1516262, at *13 (D. Or. May 13, 2022), a recently decided case 5 from the District of Oregon, which is instructive but not binding. Norman 6 involved a pre-trial detainee who died in custody from “complications of chronic 7 beverage alcohol use.” Id. at *2. Notable for the matter at hand, the deceased, 8 who was discharged from a hospital, refused treatment after a medical evaluation 9 from the nurse on duty. The nurse then contacted a doctor per jail protocol and 10 received the instruction to “wait until morning” to assess her vital signs due to the 11 amount of medication she had received at the hospital. The deceased was then 12 placed on medical monitoring and received check-ins roughly every 45 minutes 13 and was constantly monitored through a security camera. During the night, the 14 deceased rolled off her bed, landing face down on the floor, and was found dead 20 15 minutes later. Id. 16 While not entirely analogous because the nurses involved did not assert 17 qualified immunity, Norman is helpful in its discussion of the right to direct-view 18 safety check-ins recognized in Gordon v. County of Orange, 6 F.4th at 973. As 19 applied to this case, the Court in Gordon stated: 20 Thus, at the time of the incident, Gordon had a clearly established constitutional right to have a proper medical screen conducted to ensure ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 34 1 2 3 4 5 the medically appropriate protocol was initiated. As applied here, [a nurse] acted as gatekeeper by serving as the screening nurse and was therefore responsible for identifying an inmate's urgent medical needs. Whether she failed to do so is properly considered under the first prong of the qualified immunity analysis. Id. at 971–72. Additionally, Gordon instructed that pre-trial detainees have a right to 6 direct-view safety checks sufficient to determine whether their presentation 7 indicates the need for medical treatment, and further held “law enforcement and 8 prison personnel should heed this warning because the recognition of this 9 constitutional right will protect future detainees.” 6 F.4th at 973. Further, the 10 court in Norman found that “a reasonable jury could find that that [the nurse in 11 question] violated [the deceased’s] rights by failing to put her on a closer watch.” 12 No. 3:19-CV-02095-MO, 2022 WL 1516262, at *17. While not exactly on point, 13 the Court is satisfied based on the information as presented, that Ms. Nelson was 14 entitled to be properly screened and watched while experiencing withdrawal and 15 notice of this right was indicated on her intake form. ECF No. 20-3 at 1 (“Stated 16 that she will withdrawal from alcohol”). A nurse in LPN Aldrich’s place would be 17 on notice and understand that failure to administer proper care, akin to what is 18 described in the internal CCRJC’s policy of monitoring, would result in the 19 violation of a pre-trial detainee’s Fourteenth Amendment right, and ultimately lead 20 to injury or death. Thus, she is not entitled to qualified immunity for summary ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 35 1 2 judgment purposes. In sum, as to Plaintiff’s § 1983 claim against LPN Aldrich, material facts are 3 still in dispute and thus the Court cannot grant summary judgment. Nor does 4 qualified immunity entitle her to summary judgment. 5 2. Chelan County Jail Director Christopher Sharp 6 Next, Defendants allege that Director Sharp either cannot be found liable 7 under § 1983 or is entitled to qualified immunity because he had no interaction 8 with Ms. Nelson while she was in the custody of CCRJC. ECF No. 15 at 13. In 9 addition to a lack of direct involvement, Defendants also assert Plaintiff has failed 10 to show that Director Sharp was deliberately indifferent via a failure to train 11 theory, which provides that under § 1983, a supervisor can be held liable for a 12 subordinate’s violation if: “ ‘[his] own culpable action or inaction in the training, 13 supervision, or control of his subordinates,’ ‘his acquiescence in the constitutional 14 deprivations of which the complaint is made,’ or ‘conduct that showed a reckless 15 or callous indifference to the rights of others.’” Starr v. Baca, 633 F.3d 1191, 16 1195 (9th Cir.), withdrawn and superseded on denial of reh'g en banc, 652 F.3d 17 1202 (9th Cir. 2011) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th 18 Cir.1991). Defendants assert that Director Sharp took meaningful steps after the 19 death of Mr. Verville to provide an updated policy surrounding fentanyl 20 withdrawal, including “jail checks,” and that LPN Aldrich behaved appropriately ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 36 1 in response to Ms. Nelson’s symptoms. ECF No. 35 at 8. Plaintiff asserts that 2 Director Sharp did not provide proper training and failed to meaningfully 3 reprimand LPN Aldrich after the death of Mr. Verville. ECF No. 25 at 10. 4 Under § 1983, a supervisor cannot be held liable under respondeat superior. 5 Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020). Instead, a 6 plaintiff’s claim must show that a supervisor exercised deliberate indifference in 7 the training or supervision of an employee, amounting to a constitutional violation. 8 Flores v. Cnty. of Los Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014) (quoting City 9 of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). As part of this 10 demonstration, a plaintiff must show that the supervisor disregarded known gaps in 11 a training program that would cause employees to violate constitutional rights, or 12 the gaps must obviously lead to constitutional violations. Connick v. Thompson, 13 563 U.S. 51, 61 (2011) (internal citation omitted). Or, a supervisor may be held 14 liable for the actions of an employee under § 1983 if he or she knew of the 15 employee’s violations and failed to act to prevent them. Maxwell v. Cnty. of San 16 Diego, 708 F.3d 1075, 1086 (9th Cir. 2013) (internal citation omitted). A plaintiff 17 must show that the supervisor was deliberately indifferent to the need of employee 18 training, and that the inaction of the supervisor was the moving force behind the 19 constitutional violation. See Flores, 758 F.3d at 1159; Oviatt By & Through 20 Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 37 1 The Court cannot determine that summary judgment is proper as to Director 2 Sharp’s failure to train LPN Aldrich. A supervisor may be held liable in an 3 individual capacity for his “own culpable action or inaction in the training, 4 supervision, or control of his subordinates.” Watkins v. City of Oakland, Cal., 145 5 F.3d 1087, 1093 (9th Cir. 1998). Defendants first argue that Director Sharp did not 6 approve of any delay in medical care because LPN Aldrich responded 7 appropriately to Ms. Nelson’s symptoms. ECF No. 35 at 7. However, the internal 8 policy states that inmates at risk of experiencing withdrawal shall be seen 9 “promptly,” and Ms. Nelson was not seen until almost six hours after LPN Aldrich 10 began her shift, and then never reassessed again. ECF No. 30-10 at 3. And 11 Plaintiff’s contention that LPN Aldrich did not respond appropriately to Mr. 12 Verville’s detox but was still not instructed on internal CCRJC policies after his 13 death, lends to argument that Director Sharp was aware of training flaws and chose 14 inaction regarding inmates Fourteenth Amendment right to adequate medical 15 treatment. ECF No. 25 at 10. And, though new policies were put in place, 16 Plaintiff asserts that LPN Aldrich and the rest of the medical staff should have 17 been retrained after the death of Mr. Verville, and LPN Aldrich stated she was not. 18 ECF Nos. 25 at 19 and 30-15 at 17. There is no suggestion that members of 19 medical staff were aware of the expectations under the new policies at the time of 20 Ms. Nelson’s death, or if the new policies addressed the cause of Mr. Verille’s ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 38 1 death in custody. The Court agrees that reasonable minds could differ as to 2 Director Sharp’s knowledge of the need for retraining, and therefore declines to 3 grant summary judgment. 4 Defendants contend that even if Director Sharp can be held liable under 5 § 1983, he is nevertheless shielded by qualified immunity. ECF No. 33 at 7. 6 Having already established that a triable issue of fact remains as to Director 7 Sharp’s supervisor liability under § 1983, the Court next considers the second 8 prong of the qualified immunity test, whether the right “was clearly established at 9 the time of the violation.” Sandoval, 985 F.3d at 671. The Court concludes that, 10 pursuant to the discussion surrounding LPN Aldrich supra, should a trier of fact 11 determine that Director Sharp failed to provide adequate training and supervision 12 to CCRJC medical staff, the right to adequate medical care via monitoring was 13 established at the time of violation. Gordon, 6 F.4th at 970, 73. Therefore, 14 Director Sharp is not entitled to qualified immunity at this time. 15 B. 16 Finally, Plaintiff seeks to hold Chelan County liable under § 1983 for its Monell Liability Against Chelan County 17 ratification of a policy of failure to train staff to treat and monitor inmates for detox 18 or withdrawal. ECF No. 25 at 17. Defendants argue that Chelan County had in 19 place appropriate policies for addressing withdrawal and detox, and they were 20 followed. ECF No. 15 at 15. Further, it asserts that the death of Mr. Verville ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 39 1 cannot be used to establish a pattern or practice for the purpose of Monell liability. 2 Id. at 16; ECF No. 35 at 8. 3 A municipality cannot be held liable under § 1983, except if a plaintiff can 4 prove that it has a policy or custom which led to a constitutional violation. Monell 5 v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). Under a 6 Monell framework, a plaintiff must demonstrate: (1) he or she had a constitutional 7 right of which he was deprived; (2) the municipality had a policy; (3) the policy 8 amounts to deliberate indifference to his constitutional right; and (4) “the policy is 9 the moving force behind the constitutional violation.” Dougherty v. City of 10 Covina, 654 F.3d 892, 900 (9th Cir. 2011). There are three ways a plaintiff may 11 satisfy the Monell policy requirement: first, a government may act pursuant to an 12 expressly adopted policy, second a government may act pursuant to a 13 “longstanding practice or custom,” Thomas v. County of Riverside, 763 F.3d 1167, 14 1170 (9th Cir. 2014), and third, the person who commits the constitutional 15 violation acts as a final governmental policymaker or such an official “ratified a 16 subordinate’s unconstitutional decision or action and the basis for it.” Clouthier v. 17 County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010). Here, Plaintiff is 18 arguing that Chelan County either has a practice of failing to train staff, or that it 19 ratified constitutional violations of medical staff by failing to retrain and 20 reprimand. ECF No. 25 at 16. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 40 1 As to a standing policy or custom, Plaintiff argues that Chelan County 2 offered no training to ensure that staff follow the internal policies of alcohol 3 withdrawal and detox, including training regarding medical monitoring. Id. at 18– 4 19. A failure to train may be the basis for Monell liability if it amounts to 5 deliberate indifference. City of Canton, 489 U.S. at 388. To demonstrate a 6 deliberate indifference, a plaintiff must show that the choice was a conscious one 7 in the decision not to train as it relates to the relevant constitutional violation, 8 which can be satisfied by an obvious need for training that is lacking. Price v. 9 Sery, 513 F.3d 962, 973 (9th Cir. 2008) (“[The failure to train standard is] 10 objective in that it does permit a fact finder to infer ‘constructive’ notice of the risk 11 where it was ‘obvious’—but this is another way of saying that there needs to be 12 some evidence that tends to show a conscious choice.”). In general, a failure to 13 train claim must contain; (1) the deprivation of a constitutional right, (2) a showing 14 that the municipality had a training policy that amounts to deliberate indifference 15 to the constitutional rights of those with whom officials are likely to come into 16 contact; and (3) a showing that the constitutional injury would have been avoided 17 had the municipality properly trained those officers. Blankenhorn v. City of 18 Orange, 485 F.3d 463, 484 (9th Cir. 2007) (internal citations and quotation marks 19 omitted). However, the practice or custom must be founded upon sufficient 20 frequency and consistency, isolated or sporadic incidents of violation are ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 41 1 insufficient. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (internal citations 2 omitted). 3 Plaintiff posits that the County did not provide proper training to CCRJC 4 staff on internal policies regarding withdrawal and detox, based on the failure of 5 staff to respond appropriately to Ms. Nelson and Mr. Verville per those policies. 6 ECF No. 25 at 18–19. This is further supported, according to Plaintiff, by a lack of 7 proper protocol regarding video monitoring, evidenced by the fact that the only 8 official policy describes video monitoring for the purpose of security and 9 communication, but does not explicitly mention medical monitoring. Id.; ECF No. 10 30-21 at 2. Defendants argue that Chelan County had in place proper Lexipol 11 policies on withdrawal and detox, and that Plaintiff cannot show deliberate 12 indifference based on a failure to train. ECF Nos. 15 at 12 and 35 at 9. 13 Having decided that the prior incident involving the death of Mr. Verville is 14 admissible for purposes of demonstrating a practice or custom, the Court cannot 15 determine that summary judgment is proper as to the Monell claim against Chelan 16 County. For one, Defendants have produced no internal training or policy 17 regarding video medical monitoring, despite stating that inmates with medical 18 concerns are monitored this way. ECF No. 15 at 13. Further, there is no indication 19 that there is a requirement that an CCRJC official in charge of the monitoring be 20 medically trained, nor does it appear, based on Chelan County’s 30(b)(6) ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 42 1 deposition, that the monitoring is consistently done by the same person or 2 particularly conducive for proactive monitoring. ECF No. 30-6 at 4–5 (“Basically 3 I could be [in the control room] for five minutes while the individual goes to the 4 bathroom. I could try to give them a 15-minute break occasionally.”) (“I can see 5 movement, but if somebody is covered up, I cannot tell . . . if they’re just sleeping. 6 I cannot tell how they’re doing specifically. The cameras are not that good as I 7 cannot tell you . . . if she is breathing right now, I could not tell because she’s 8 about right here.”). This is also set against the backdrop of Plaintiff’s contention 9 that Mr. Verville vomited at least ten times while in custody, six of those times 10 occurred after he was provided medication, yet was provided no additional 11 assessment by medical staff. ECF No. 26 at 17. Further, Plaintiff and Defendants 12 disagree about the effectiveness of video monitoring and the type of cell checks 13 Ms. Nelson received after the administration of her withdrawal medication. ECF 14 Nos. 15 at 6, 25 at 16, 19-1 at 7, and 30-13 at 4. 15 Defendants’ expert on correctional practices discussed that an internal 16 investigation after the death of Ms. Nelson revealed that staff was confused about 17 the internal policy regarding proper cell checks. ECF No. 19-1 at 27. And it 18 appears that, even if the jail staff understood part of the internal cell check policy, 19 that both deputies were to enter the cell, and perform a check at least every 60 20 minutes, staff did not perform this function for either Mr. Verville or Ms. Nelson. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 43 1 ECF Nos. 20-18 at 9–12 (describing how deputies “briefly looked” into Ms. 2 Nelson’s cell, and LPN Aldrich did not visit during a 2:29 p.m. “Medical Pass”) 3 and 30-20 at 6–9. 4 LPN Aldrich also failed to follow internal protocol with regard to Mr. 5 Verville and Ms. Nelson. Plaintiff contends that internal jail protocol would have 6 required both Mr. Verville and Ms. Nelson to be seen by medical staff “promptly” 7 based on their respective reports that withdraw or detox may be a possibility but 8 were not seen until their symptoms had become severe. Additionally, Plaintiff 9 contends that both individuals should have been placed on heightened monitoring 10 11 based on their condition, which was not done in either case. ECF No. 25 at 8. The above-described conditions within CCRJC leave triable issues of fact 12 for a jury to consider. Reasonable minds could differ as to whether Chelan County 13 was deliberately indifferent to obvious gaps in training, as first demonstrated by 14 the death of Mr. Verville, and ultimately led to violations of Ms. Nelson’s 15 Fourteenth Amendment right to adequate medical care. As such, summary 16 judgment is not proper with respect to the Monell liability of Chelan County. 17 C. 18 Plaintiff argues that the same foundation that supports the constitutional 19 claim brought against each defendant may also support a claim of negligence. 20 ECF No. 25 at 20. Defendants argue that there was no breach of duty, in that Ms. Negligence Claim Against All Defendants ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 44 1 Nelson at all times had access to adequate medical care, and that nothing CCRJC 2 did or failed to do caused Ms. Nelson’s death. ECF No. 15 at 16–17. 3 As is well known, the elements of negligence are duty, breach, causation, 4 and damage or injury. Hartley v. State, 103 Wash. 2d 768, 777 (1985). 5 Washington law requires that the breach be the proximate cause of the injury, 6 meaning that it is both the cause in fact and the legal cause. Id. (internal citation 7 omitted). “Breach and proximate cause are generally fact questions for the trier of 8 fact. However, if reasonable minds could not differ, these factual questions may 9 be determined as a matter of law.” Hertog, ex rel. S.A.H. v. City of Seattle, 138 10 11 Wash. 2d 265, 275 (1999) (internal citation omitted). Washington State law has long recognized the special relationship that exists 12 between a jail exercising custodial control and a prisoner without liberty, and thus 13 has imposed upon correctional facilities the requirement to keep a prisoner, “in 14 health and free from harm.” Gregoire v. City of Oak Harbor, 170 Wash. 2d 628, 15 635 (2010) (quoting Kusah v. McCorkle, 100 Wash. 318, 325 (1918)). Defendants 16 do not contest that a duty exists to keep inmates safe while in custody but argue 17 that there has been no breach of the duty, and that no action from the correctional 18 facility caused Ms. Nelson’s death. ECF No. 15 at 17–18. 19 20 The question of whether or not Defendants fell below the standard of care required of the duty imposed is at the heart of this matter, and greatly contested by ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 45 1 both sides. Plaintiff’s expert witnesses are adamant that Defendants provided 2 substandard care to Ms. Nelson while in custody. ECF Nos. 27 at 7, 28 at 12, and 3 29 at 29. Defendants’ witnesses are equally insistent she was given proper medical 4 care. ECF No. 17-1 at 7, 19-1 at 6–7, 21 at 8. As such, reasonable minds could 5 differ as the issue of breach. 6 Likewise, causation is fiercely debated by either side, and the crux of the 7 ultimate question of liability. Cause in fact is the “but for” cause of the injury, 8 meaning that the event would not have occurred without action from the defendant. 9 Taggart v. State, 118 Wash. 2d 195, 226 (1992). Stated another way, cause in fact 10 cannot be established if the plaintiff’s injury would have occurred without a breach 11 of duty. Walker v. Transamerica Title Ins. Co., 65 Wash. App. 399, 403 (1992). 12 However, there may be multiple “but for” causes or independent actors may breach 13 separate duties which together produce an injury. Meyers v. Ferndale Sch. Dist., 14 12 Wash. App. 2d 254, 264–65 (2020), aff'd but criticized, 197 Wash. 2d 281, 481 15 P.3d 1084 (2021). Legal causation, on the other hand, is a policy consideration 16 intertwined with the question of duty and decides how far to extend defendant’s 17 responsibility for its actions. Taggart, 118 Wash. 2d at 226. 18 As was previously discussed, the medical examiner provided three separate 19 symptoms of chronic alcoholism which could have independently or in some 20 combination caused the death of Ms. Nelson, and is laid out supra, parties disagree ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 46 1 as to what specifically caused her death. ECF No. 20-5 at 1. Because reasonable 2 minds could disagree as to the proximate cause of Ms. Nelson’s death, whether it 3 be a spontaneous medical episode or caused by some mistreatment of alcohol 4 withdrawal, is ultimately a question for the jury. 5 Therefore, summary judgment as to the claim of negligence against all three 6 defendants is denied. 7 ACCORDINGLY, IT IS HEREBY ORDERED: 8 1. Defendants’ Motion to Strike (ECF No. 32) is GRANTED in part. 9 2. Defendants’ Motion for Summary Judgment (ECF No. 15) is DENIED. 10 11 12 The District Court Executive is directed to enter this Order and furnish copies to counsel. DATED April 19, 2024. 13 14 THOMAS O. RICE United States District Judge 15 16 17 18 19 20 ORDER GRANTING IN PART DEFENDANTS’ MOTION TO STRIKE AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 47

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